• Continued from page 1. This is page 2 of the 2-page article Class Action Litigation: The Legal Primer. References are at the bottom of this concluding, second page. Click here to return to Page 1.

Certification

This is the usual first step in a class action (see Legal Definition of Certification); the request to a Court of law to certify the action as qualifying for class action proceedings (certification can be preceded by a carriage motion).

Because a class action lawsuit purports to resolve the legal interests of a large group of potential litigants not named in the lawsuit (or who may even be unaware of it), the judge will weigh the application against a set of criteria which is generally common across Canada:

  • That there is a cause of action;
  • An identifiable group of persons as plaintiffs;
  • That common legal issues are raised within the group (commonality or a community of interests);
  • That a class action is a fair way to resolve the dispute; and
  • That there is indeed a representative plaintiff ready and willing to act on behalf of all the group.

class action pictureIn the 2001 decision, Western Canadian Shopping Centres Inc. v. Dutton, at ¶48 and 44, Canada's Supreme Court formally enunciated those conditions for certification of a class action law suit:

"Class actions should be allowed to proceed ... where the following conditions are met: (1) the class is capable of clear definition; (2) there are issues of fact or law common to all class members; (3) success for one class member means success for all; and (4) the proposed representative adequately represents the interests of the class. If these conditions are met the court must also be satisfied, in the exercise of its discretion, that there are no countervailing considerations that outweigh the benefits of allowing the class action to proceed.

"Where the conditions for a class action are met, the court should exercise its discretion to disallow it for negative reasons in a liberal and flexible manner, like the courts of equity of old. The court should take into account the benefits the class action offers in the circumstances of the case as well as any unfairness that class proceedings may cause. In the end, the court must strike a balance between efficiency and fairness."

But since that decision, most Canadian provinces have their own class action statute, often referred to as class proceedings. As with all discordance between a legal principle brought forward by a Court of law and those of a statute, the latter prevails.

One of the additional conditions the regional statutes tend to include is that the proposed plaintiff, the representative, bring forward a litigation plan.

Other Stops Along The Way

David v Goliath class action text boxVenue is often a significant issue at the certification phase of class action law suits: where to house the trial, especially since the jurisdiction chosen will also resolve the interlocutory applications sure to be raised along the way.

Another issue is often the lucrative (and expensive) position of counsel of record for the representative plaintiff (see the Legal Definition of Carriage Motion). This point of law which attracted these comments by Justice Cumming of the Ontario Court of Justice in Vitapharm Canada Ltd.:

"Factors to consider in determining who should be appointed as solicitor of record in a class action include: the nature and scope of the causes of action advanced, the theory advanced by counsel as being supportive of the claims advanced; the state of each class action including preparation, the number, size and extent of involvement of the proposed representative plaintiffs, the relative priority of commencing the class actions; and the resources and experience of counsel."

State of the Union

Without class action proceedings, consumers would be sitting ducks for the hopefully rare irresponsible corporation who harvests profits behind the knowledge, or wilful blindness, that the risk of harm is passed on to individual consumers, and that the sheer cost of litigation precludes that consumer from seeking to attract the attention of a Court of law to that negligent conduct.

Class action litigation serves not only to redress torts caused on a large scale, but also to warn all the players in an economy that when it comes to negligence and harm, there are tools to pry open a Court of law and put that conduct to the judicial test and at the same time, within the prospect of an efficient one-stop-shop process, obtain economic justice for all.

Working class action proceedings are a pillar of a free enterprise and democratic society and of a responsive, if not responsible, modern legal system.

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♦ This is end of the 2-page article Class Action Litigation: The Legal Primer. References are at the bottom of this page. Click here to return to Page 1.

 

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