HOW DOES A CLASS PROCEEDING WORK?
The following simple example will illustrate the effect of a class proceeding claim and how it works.
Consider the situation of a dispute between a customer and a company which provides services to this particular customer and 10,000 other people pursuant to a standard form agreement.
Suppose each customer pays the company $1,000.00 per year.
Suppose further that a particular customer has discovered that the company interprets the standard form agreement in such a way that he/she has paid $100.00 more per year then he/she should have.
Without class proceeding legislation, the recourse of that customer consists of a complaint to the company and perhaps an action in small claims court for recovery of the $100.00 overpaid.
Under a class proceeding claim, the customer can commence a proceeding as a representative plaintiff on behalf of himself/herself and all 10,000 customers who are similarly affected.
In such a situation, there is now $1,000,000.00 at stake because all 10,0000 customers have the same $100.00 claim against the company.
A claim is commenced by way of a lawyer preparing and issuing a statement of claim in court.
In order for the claim to proceed as a class proceeding claim, the representative plaintiff is required to obtain an order of the court certifying the claim as a class proceeding and appointing the person as representative plaintiff for the class.
If the claim is certified, it proceeds as a class proceeding claim with the court managing the claim so as to ensure that it proceeds smoothly through to trial.
WHAT IS A REPRESENTATIVE PLAINTIFF?
The representative plaintiff is one who agrees to act on behalf of a class in commencing a proposed class proceeding claim.
The plaintiff will be appointed by order of the court and formally designated the representative plaintiff when the action is certified as a class proceeding.
WHAT DOES THE REPRESENTATIVE PLAINTIFF DO?
The representative plaintiff represents the interest of the class in prosecuting a class proceeding claim.
The representative plaintiff works with a class counsel lawyers in attempting to ensure that the interests of all the class are protected and pursued.
The representative plaintiff will be required to consult with class counsel on an ongoing basis, possibly attend at an examination for discovery (like a deposition) at which sworn evidence is given and attend in court when the matter is ultimately called for trial.
ARE THERE SPECIAL QUALIFICATIONS TO BE A REPRESENTATIVE PLAINTIFF?
No special skill or qualification is required in order to serve as a representative plaintiff. A representative plaintiff must be able to fairly and adequately represent the interests of the class.
Anyone can serve as a representative plaintiff provided that individual will properly represent the interests of the class and does not have any interest which is in conflict with the interests of the class.
Serving as a representative plaintiff is a very noble undertaking.
If a class proceeding claim is successful, the representative plaintiff is responsible for helping to obtain justice for all class members.
WHAT IS CERTIFICATION?
Certification is the process by which a court order is granted certifying a lawsuit as a class proceeding and appointing the plaintiff as a representative plaintiff for the class.
It essentially amounts to permission of the court to prosecute the claim as a class proceeding.
Certification of a claim is mandatory if the five statutory requirements are satisfied:
- The claim must disclose a proper cause of action;
- There must be a class of two or more persons;
- The proposed representative plaintiff must be appropriate, present a reasonable plan for presecution of the litigation and must have no conflict with other class members;
- There must be issues of fact or law common to all class members;
- A class proceeding must be the preferable procedure for resolution of the common issues.
HOW DO THE LAWYERS GET PAID?
Class proceedings legislation increases access to justice by allowing lawyers to charge contingency fees securing payment based on the result obtained for the class members.
Lawyers are permitted to charge fees based on the results obtained in the action in respect of class proceeding claims.
In most cases, the representative plaintiff is not required to make any payment of fees and disbursements.
Counsel taking on class proceeding claims are expected to be entrepreneurial and to expend resources to advance the claims.
In class proceeding claims, all fees and costs charged by the lawyers are subject to approval of the court.
Typically, a retainer agreement is executed by the representative plaintiff whereby the representative plaintiff agrees to payment of costs from the overall judgment or settlement amount on behalf of the entire class.
ARE THERE ADVANTAGES TO A CLASS PROCEEDING CLAIM?
Class proceeding legislation increases access to justice and streamlines the judicial process.
Class members need do nothing to participate in a claim. They are deemed to be part of the lawsuit unless they withdraw/opt-out.
Limitation periods are extended for all class members and the court can make an aggregate award for all class members.
Class proceeding claims are very effective since there is “strength in numbers” in the process.
WHEN ARE CLASS PROCEEDINGS USED?
Class proceedings are used whenever it is appropriate that people who are similarly affected join together to commence legal action.
Class proceedings are used wherever it would be inefficient or risky for multiple actions to be brought against the same defendant by various individuals.
There are specific areas which are best suited for class proceeding claims such as product liability issues, misrepresentation to a group, consumer and competition law, stock fraud and mass termination of employment.
HOW DO I PARTICIPATE IN AN ONGOING/ACTIVE CLASS PROCEEDING CLAIM?
Class members need not do anything to participate in an ongoing/active class proceeding claim. All class members are deemed to be part of the lawsuit unless they withdraw/opt-out.
In respect of claims that we are pursuing, however, we do compile and maintain a database of class members in order that we can communicate with the class on an ongoing basis.
To be added to our database in respect of any ongoing/active claims, click on the particular active claim and then follow the instructions to submit your information.