Civil Trial Consultants

An Overview of the Class Proceedings Act, 1992

The Class Proceedings Act, 1992 (the “Act”) sets out Ontario’s class action regime.

Class actions may be started by a plaintiff or by a defendant on a motion to a Judge for certification (section 2).  Plaintiffs must do so within 90 days of the last defence or time for last defence.  Defendants may do so at any time.

Certification

5 requirements for certification are set out at section 5 of the Act:

  1. Cause of action;
  2. Identifiable class;
  3. Common issues (fact or law);
  4. Preferred procedure; and
  5. Representative plaintiff or defendant.

Should there be a subclass that require representation, a representative plaintiff or defendant is required.

On a motion for certification, the parties must lead affidavit evidence of the number of members in the class.

Pursuant to section 6 of the Act, a Judge can’t refuse certification on the grounds that individual assessments are required, there are separate contracts, different remedies are sought for different class members, the number of class members is unknown or there are subclasses with common issues not shared by all call members.

An order certifying a class action must describe the class, state the names of representative patios, state the nature of claims or defences, state the relief sought, set out common issues and specify how to opt out and the deadline to do so (section 8).

Stages

The stages in a class proceeding are as follows (section 11):

  1. Common issues for a class;
  2. Common issues for a subclass; and
  3. Individual assessments.

Notice

Notice of certification has specific rules outlined at sections 17-22 of the Act, focusing on who should receive notice and how, which ranges from mail to advertising.  Notices must describe the proceeding, state the opt out deadline, describe possible financial consequences, summarise any fee agreement, flag counterclaims, confirm the judgement is binding if the member doesn’t opt out, describe rights of participation and give an address for inquiries.  Where individual issues arise, the notice must address them.

Statistics

Statistical evidence relating to the amount or distribution of an award under the Act is permissible pursuant to section 23.  Evidentiary requirements are somewhat relaxed so long as notice is given that sets out a reliable source of information and the qualifications of the people overseeing the preparation of the statistical information.

Judgment

The Court can decide how much money is owed to all class members on an aggregate basis under section 24 of the Act.  Once the aggregate amount is determined, if individual claims are needed, individual claims can be made according to various processes such as:

  • standard proof of claim forms;
  • affidavit evidence;
  • auditing.

The manner of determining entitlement of individual issues is governed by section 24 of the Act and may include:

  • Further hearings with the Judge;
  • Appointing people to conduct a reference;
  • With the consent of the parties, any other manner, which may include mediation and arbitration.

Class action judgments must set out the common issues, describe the class or subclass members, state the nature of claims or defences asserted and specify the relief granted (section 27).  The judgment or money awarded in a class action is distributed as directed by the Court under section 26.

Limitation Periods

Limitation periods are suspended for class members from certification until a member opts out, an amendment excludes them, decertification, dismissal without adjudication, abandonment or settlement unless the settlement provides otherwise (section 28).  However, a settlement approved by the Court binds all class members (section 29).

Appeals

Appeal procedures are set out at section 30.  Appeals relating to certification go to Divisional Court.  Appeals of judgments go to the Court of Appeal for Ontario.  Individual awards of $3,000 or more are appealed to Divisional Court, awards under $3,000 require leave of the Superior Court to appeal to Divisional Court.

Costs and Fees

Costs are determined by the Court under section 31.  Considerations include test cases, novel points of law and matters of public interest.  Class members are not liable for costs.

With respect to lawyer fees and disbursements, agreements shall be in writing, discuss both fees and disbursements, estimate the fee and describe how payment is made.  The Court must approve the retainer agreement.  Fees are paid first upon settlement or judgment (section 32).  Contingency fees are acceptable and a multiplier may be applied to fees if an agreement provides for a multiplier and the Court approves it (section 33).

More Information on Class Actions

We work with people interested in starting class actions and law firms advancing class actions to trial.

To discuss a potential class action, please call (416) 944-2274 or email info@trialcounsel.ca

More on class actions:

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