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.
Class Actions must be registered in the National Class Action Database of the Canadian Bar Association (section 2(1.1)).
5 requirements for certification are set out at section 5 of the Act:
- Cause of action;
- Identifiable class of two ore more;
- Common issues (fact or law – see section 1 definition);
- Preferred procedure; and
- Representative plaintiff or defendant.
Section 5 of the Act is very important and should be reviewed for details. It was amended in 2020 so certification case law prior to 2020 should be read with amendments in mind that may affect certification.
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 parites, 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).
If a person wants to opt out, they must do so by the deadline in the certification order (section 9).
The stages in a class proceeding are as follows (section 11):
- Common issues for a class;
- Common issues for a subclass; and
- Individual assessments.
Who will have carriage of the class action is determined on a carriage motion (section 13.1). The motion is brought within 60 days and heard as soon as is practicable. The Court looks at each plaintiff’s theory of the case, likelihood of success, the lawyers involved and their track record as well as funding. The carriage decision is final with no appeal.
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.
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.
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;
The manner of determining entitlement of individual issues is governed by section 25 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.
A settlement must be confirmed by the Court (section 27.1) and the settlement must be fair and reasonable. It binds the class members.
Limitation periods are suspended for class members upon commencement of the class proceeding until a member opts out, an amendment excludes them, decertification, dismissal without adjudication, abandonment or settlement unless the settlement provides otherwise (section 28).
Appeal procedures are set out at section 30. Certification appeals go to the Court of Appeal. Appeals of common issues goes to the Court of Appeal. Appeals of individual awards goes to the Divisional Court (leave is required for small awards).
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).
Third Party Funding Agreements
Funding agreements where a funder is not a party requires Court approval (section 33.1). The funding agreement is shared with the defendant on a motion, but with redactions for anything the defendant can use for a tactical advantage. The funding agreement must be fair and reasonable and gives the funder no control over the proceeding. The funder must prove it is well-financed.
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