Understanding class actions in Ontario

Class actions in Ontario have become an important legal procedure to seek indemnity for the wrong caused to a particular group of people. Since each province and territory in Canada has their own law regarding class actions, Ontarians must look at their own statutes if they want to file a class action in the province.

What is a class action?

A class action or class suit is a procedural tool where several persons unite, under a representative plaintiff, to file their claims against a common defendant. Allegedly, this defendant (or a group of defendants) has caused injury to this group of plaintiffs due to their acts, omission, or negligence.

This type of civil action is permitted by law because it would have been economically impractical for many plaintiffs to file their case individually. There are also the factors of speed and costs, which make class actions a viable tool to achieve justice.

Here’s an actual and recent class action in Ontario, which involves plaintiffs collectively suing nursing homes for their alleged negligence during the COVID-19 pandemic:

If you need help from a lawyer about a possible class action, check out the best class action lawyers in Canada as ranked by Lexpert.

Class actions in Ontario

Filing a class action in Ontario is governed by the provincial Class Proceedings Act, 1992 (the CPA), which was amended in 2020. As a common law province, litigants are also guided by the common law on class actions in Ontario.

Process of class actions in Ontario

Here’s what happens when a class action is filed in Ontario:

1. Filing: the representative plaintiff files the class action lawsuit before the Superior Court of Justice and applies for the certification of the action
2. Review: the judge will review the class action, who will either certify it to proceed to trial or to deny its certification according to standards of the CPA
3. Certification: if the class action is certified, the judge will appoint the class counsel, also called the representative lawyer
4. Notification: all persons with similar claims are notified about the class action and invited to become a part of the class
5. Opting out or in: since Ontario follows the “opt-out” process, persons who do not opt out of the class action will be bound by the decision; those who want to opt in don’t have to do anything
6. Trial or settlement: the trial will proceed until a decision is made by the court; alternatively, a settlement may be reached by the parties
7. Execution: claims will be satisfied according to the court’s decision or the parties’ settlement

If the class action lawsuit is not certified by the judge, the individual plaintiffs of the class will have to file their own lawsuits, instead of as a class.

What are the requirements for class actions in Ontario?

Plaintiffs who want to file a class action in Ontario must follow these requirements:

• have the class action be certified by the court
• identify their representative plaintiff

We’ll discuss these requirements below.

Certification of class action

Class actions in Ontario, as with other provinces, must undergo a certification stage upon filing a motion for certification by the plaintiffs. This is a preliminary process, which is not yet the final determination or decision of the case. A certification is granted if the suit filed has met these criteria for it to proceed as a class action:

• there is a cause of action against the common defendant
• there is an identifiable class of plaintiffs
• the plaintiffs have identified persons to be their representative plaintiffs
• the claims or defenses of the class raise common issues
• a class suit is the preferable procedure to resolve the common issues raised

Appointment of class representative/s

Along with the certification requirement for class actions, it’s also required that a representative plaintiff be identified. The CPA sets some standards when it comes to choosing the representative plaintiff. They must:

• fairly and adequately represent the interests of the class
• have a plan on advancing the class action on behalf of the class and in notifying the class about the case
• not have a conflict of interest with the class on the common issues raised in the action

What are the limitation periods of class actions in Ontario?

Limitation periods are set by law, which is the time that a plaintiff must file their civil case in court. If it’s not filed within the given period, it will be barred from being filed or it will be dismissed by the court.

Canada’s limitation periods are set by each province. In Ontario, the governing law would be the provincial Limitations Act, 2002. However, the Act must be read along with other statutes when it comes to the limitation periods of other civil actions, such as a class action.

Limitation period in the CPA

The updated CPA says that the time limit for a class member to file a lawsuit is paused once the class action begins.

However, the CPA has listed several instances when the limitation period will run again against the class member, such as when:

• the class action is not certified
• a particular cause of action is excluded
• a class member is excluded
• a class member opts out of the class action
• there's a decertification order by the court
• the class action is dismissed without an adjudication on the merits
• the class action is abandoned or discontinued with the court’s approval
• the class action is settled with the court’s approval, unless the settlement provides otherwise

In any of these cases, the remedy of the class member is to file their individual case immediately, so that their cause of action will not be barred by the limitation period.

For more information about the requirements and filing of class actions in Ontario, reach out to a Lexpert-ranked best class action lawyers in Ontario.