A class action is a civil case (or civil action) for the recovery of damages or for compensation. This lawsuit is filed by numerous plaintiffs which is named after the “representative plaintiff” on behalf of all the plaintiffs.
A class action may be filed against a single or two or more defendants. When there are many defendants, they may also be represented by a “representative defendant”.
An important element in how to start a class action lawsuit in Canada is the commonality of the legal interests of the class members or plaintiffs. A common legal interest may be a result of a common injury that the plaintiffs suffered because of the act/s which may have been caused by the defendant/s.
Starting a class action in Canada may also be done separately in different common law provinces. This may be filed by the class members located in that province against a common defendant. Here, the court will not necessarily consolidate these different cases; these may proceed independently from each other.
The court may also order that a case filed before it be consolidated with other class action of another province.
What are the steps on how to start a class action lawsuit in Canada?
Class actions in Canada are governed by common law among the provinces, except for Québec which is governed by its Civil Code.
The procedure to start a class action or class proceeding in these provinces is almost similar to each other. For civil proceedings of a class action in Montreal, it would be best to speak with a Lexpert top-ranked class action lawyer in Québec.
Laws on how to start class action lawsuits in Canadian provinces are found in:
- Ontario: Class Proceedings Act, 1992
- British Columbia: Class Proceedings Act
- Alberta: Class Proceedings Act
- Manitoba: The Class Proceedings Act
- Saskatchewan: The Class Actions Act
All provinces have their own class action legislation except Prince Edward Island.
In starting a class action lawsuit in Canada, there are generally two stages: the certification stage, followed by the trial proper.
How to start a class action lawsuit in Canada, Stage 1: Certification
Upon filing of the class action before the appropriate court, it will then go into a certification process by filing a motion for certification. (In Québec the certification process is similar, although it is called authorization.) The motion for certification will have to include the submission of affidavit evidence by the representative plaintiff, expert reports, and written materials.
At this stage, the court will certify the common issues or the questions of fact or law of the case. This is done by determining whether the issues or claims raised by the plaintiff are indeed common and that starting a class action is the most appropriate proceeding to hear and try these common issues or claims. Otherwise, the court may order that the claim or issue of each plaintiff be tried separately.
How to start a class action lawsuit in Canada? It all begins with the certification process – find out more in this video:
To learn more about class actions, speak with a lawyer in your territory or province. If you’re based in Victoria, consult any of our top-ranked lawyers in British Columbia.
Opting Out or Opting In
While it is important that the plaintiffs are large in number and must present common interests or claims against the defendants, other individuals in the same class may opt out before the start of the class action. This means that they will not participate in the lawsuit. Consequently, they will not be entitled to whatever compensation the court awards to the plaintiffs. In the same way, when starting a class action lawsuit in some provinces, non-residents of that province must opt in to become part of that lawsuit.
Learn more: Class action vs. individual lawsuit: what’s the difference?
These legal process of opting in or opting out is usually done during the certification process. The court will set a deadline to opt out or opt in. Class members are usually notified through individual notices or through any other means of publication.
After the deadline has passed, non-residents and other interested individuals may not opt in anymore. Those who opted in and remain as plaintiffs are presumed to have done so with their consent.
Representative Plaintiff
Before starting a class action, specifically during the certification state, the court will identify and appoint the representative plaintiff.
The representative plaintiff must fairly represent the class members and must have no conflict of interest with the claims of the other class members.
This representative is also tasked to create a plan on how the class action will move forward. The plan should include ways of updating the class members on the case.
How to start a class action lawsuit in Canada, Stage 2: Trial
Deciding on whether the common issues or claims have merit is done during the trial. Once a case has been certified as a class action, it will then proceed to trial.
When a favorable decision has been acquired by the plaintiffs, an aggregate amount of compensation or damages will be awarded to them. When the court deems it fit, individual claims based on individual issues other than that of the common issue may be determined by the same court or by another court.
How many people do you need for a class action in Canada?
There is nothing in the law that requires a minimum number of plaintiffs for a class action lawsuit.
Starting a class action may be done by just one person representing several plaintiffs. How many really depends on the similarity on the cause of action of each plaintiff rather than on the specific number of plaintiffs. This means that all plaintiffs in a class action must have a common legal issue against the defendant.
As such, a Canadian court may certify or authorize a class action with just a few plaintiffs if it complies with the court procedures.
Read more: How long does a class action lawsuit take in Canada?
Do you know of any high-profile class action lawsuits in Canada? Let us know in the comments below.