12 Jul An Introduction to Class Actions in Ontario
Written by Jordan Assaraf, Associate and Lawyer
What Are Class Actions?
A class action is a type of civil claim brought by one or more representative plaintiffs on behalf of a larger group, made up of the class members. The purpose of a class action is to resolve common or similar claims in a single lawsuit. The result of the claim brought by the representative plaintiff binds all class members and opposing party since they were introduced in Ontario in 1993 with the passage of the Class Proceedings Act, class actions have addressed a wide variety of claims. Both the seriousness of the issues involved in these cases, and the societal implications of the resulting settlements or trial decisions, speak to the importance of class actions. Some notable types and examples of class actions in Ontario are:
- Environmental accidents, such as the contamination of the Walkerton water supply
- Institutional abuse in residential schools
- Consumer protection matters
- Personal injury claims arising from tainted blood products
- Abuse of privacy with regard to credit card and data security
- Labour and employment disputes involving pensions and gender discrimination
- Product liability concerning medical device implants, and food product recalls
- Federal and provincial inmate treatment with respect to solitary confinement
- Securities issues
- ReproMed Fertility
Class Actions in Ontario
The most important objective of class proceedings is to provide access to justice for those parties (individuals, groups, or organizations) who have sustained damages, but would otherwise be incapable of pursuing legal actions due to the anticipated costs and/or the risk-reward-ratio involved in doing so. By joining a class action, such parties are provided with an opportunity to seek a legal remedy for the alleged damages. The appeal for members who join a class proceeding may be the overwhelming importance of the issues in dispute—for example, the Walkerton or residential school classes—and the sobering recognition that the legal battle will likely be difficult and long.
The members of a class action have similar claims resulting from the wrongful act of another person or entity. In order to certify a class action—the process that determines whether a class action is an appropriate means of pursuing the remedies sought—it is necessary to establish that there exists “some basis in fact” that the class members share common issues. Satisfying that standard involves showing how those common issues define the class, and compiling evidence to support the claim. To do so, there is often a need for substantial expert analysis and testimony to present the factual basis of the class members’ common issues and interests.
To a certain extent, “safety in numbers” represents an important part of the emotional, practical, and financial appeal of class actions. Nevertheless, the process of establishing those numbers—providing notice of the action’s existence to potential members—can be complicated and demanding. For example, providing notification to all of the potential members of the residential school class proved to be highly challenging due to the geographical remoteness of many Aboriginal communities.
The matter of selecting “a representative plaintiff”—the individual or party who is nominated to, in a sense, speak for all members of the class—can also leave even experienced counsel with a decision requiring extremely careful judgment. Many class actions become lengthy ordeals for all involved. The representative plaintiff will be at the centre of the action, with all of the attendant demands and stresses.
Pursuing a Class Action
Our firm considers the class action system in Ontario to be fulfilling its purpose of furthering the public interest. Nevertheless, there are issues associated with the process that we regard as obstacles to access to justice in a timely, efficient, and cost-effective manner. The most important of these issues is the certification process.
Once a class action has begun, the court must certify it in order for the action to proceed. Certification is intended to be a screening process, whereby frivolous or vexatious actions will be discouraged or discarded. The Class Proceedings Act sets out the five factors necessary for certification:
1) The pleadings or the notice of application discloses a cause of action;
2) There is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;
3) The claims or defences of the class members raise common issues;
4) A class proceeding would be the preferable procedure for the resolution of the common issues; and,
5) There is a representative plaintiff or defendant who would fairly and adequately represent the class, has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and does not have, on the common issues for the class, an interest in conflict with the interests of other class members.
Unfortunately, Ontario’s courts have strayed from addressing the matter of certification in the stringent terms laid out in the Act. Over the years, the certification process has become increasingly laborious and time-consuming. Accordingly, the costs involved have increased alarmingly.
By routinely allowing the defendants more and more latitude to delve into the merits of the case, the courts have inadvertently transformed what was intended to be a relatively brief preliminary process into something more akin to mini-trials. As a result, the certification process can and often does go on for years. The large volume of documents typically filed attests to the fact that opposing lawyers are toiling diligently on their clients’ behalf.
If an action is certified, the ensuing legal battle then proceeds to either a settlement, which is subject to court approval, or a trial. In some cases, the dispute may be settled quickly. However, class actions are typically complex in nature, and require lengthy proceedings and negotiations.
Where the plaintiff is successful, there may be significant issues to be weighed in determining how the funds or other consideration awarded are to be distributed among the class members. Similarly, issues pertaining to fees and costs must be addressed, and the court must sign off on all such determinations.
Representing a Class Action Plaintiff
The challenges associated with pursuing class proceedings suggests that law firms considering such actions should exercise caution. In addition to the difficulties discussed above, there are significant uncertainties associated with class proceedings, including the onerous costs associated with them. Firms are confronted with difficult choices about how much risk they are willing to assume when representing class action plaintiffs.
Nevertheless, we believe that class actions offer law firms and lawyers exceptionally rewarding opportunities. The legal analysis and strategy required by the unique facts that often define class actions can be challenging, but gratifying. These types of cases allow lawyers to develop uniquely fulfilling relationships with the class members, who they serve by establishing their rights and facilitating their access to legal remedies.
The significance of the outcome of a class action is meaningful not only for the class members, but also for society at large. The impact of this type of lawsuit may extend far beyond the legal remedy for the representative plaintiff, and can correct or modify damaging behavior. Advocating for clients in a class proceeding represents a distinct honour, and is in keeping with our firm’s commitment to providing full-circle care to all our clients.
Gluckstein has a dedicated team who specialize in class action suits. Currently, we are representing clients within the lawsuit against RedproMed due to a malfunction at their Toronto location which resulted in the loss of viable embryos, sperm and eggs. If you or a loved one were compromised by the negligence at ReproMed, or would like further information about the lawsuit, please contact Jordan Assaraf at (416) 408-4252 ext 280 or [email protected].