How Does a Class Action Work?
A Class Action in employment law context is a civil action brought by one or more representative plaintiff on behalf of a larger group of victims (“class members”) for matters involving common defendant(s) involving the same transaction or related transactions. In Ontario, Class Actions are governed by the Class Proceedings Act, 1992. A Class Action allows courts to manage lawsuits that would otherwise be unmanageable if each class member were required to be joined as a named plaintiff.
What's Class Action in Employment Law Context?
A Class Action in employment law context is a civil action brought by one or more representative (usually an employee in an employment law legal dispute) on behalf of a larger group of victims (the class members) for matters involving common defendant(s) (usually an Employer, and other key employees in the management) involving the same transaction or related transactions (e.g. a massive wrongful dismissal employment law claim involving many employees who have been wrongfully terminated). A class action is a collective effort for cost minimization and judicial efficiency.
In Ontario, Class Actions are governed by the Class Proceedings Act, 1992.
Representative Plaintiff
A Representative Plaintiff is a class member who represents the entire class in the action. The representative plaintiff must fairly and adequately represent the interests of the class, not have an interest in conflict with other class members, and have a plan for pursuing the action and notify class members. As the representative plaintiff, you will be responsible for:
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preparing the claim;
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defining and joining members to the class;
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appearing in court; and
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assuming the cost and risk of litigation.
While in some cases, there is only one representative plaintiff; in other cases there are more than one representative Plaintiff. All of the other group members in the class action are known as “class members”.
How to File an Employment Law Class Action?
An action could either start as an employment law class proceeding by seeking a leave from Court in obtaining an Order for Certification from the Court certifying it as a class action. An employment law class action case could also be initiated as an individual action and be amended into a class proceeding by amending the statement of claim. During the Certification hearing, the Court will consider whether common employment law issues are raised, whether an employment law class action is preferable and whether there is a suitable representative plaintiff who can fairly and adequately represent the interests of the class, whom have no conflict of interest with other class members, and have a plan for pursuing the action and for notifying other class members.
If it is an Employment Law Class Action, following a determination of the common issues, the Court will then address individual employment law issues. Broad discretions are given to the Court for the distribution of employment law monetary relief. The Court may order individual assessments for class members or the relief awarded be distributed to the class members in some other fair ways. Although most class action proceeding ends with a settlement, some advance to trial sparingly.
How Are Decisions Made?
Despite the inclusion of a large group, the representative plaintiff(s) and their lawyers will still be leading the case. However, the Representative Plaintiff is required to act in the interests of all affected parties, as mentioned above.
The court will regulate this by blocking any settlement offers that unfairly tilt toward personal gain of representative plaintiff. And in some cases, class members get to vote on settlement offers.
In addition, class members can make submissions to the court about whether they think a settlement proposal is fair and reasonable, even if the opinion is in the minority in the class action suit. This means that while class members will not have much influence over how the action proceeds on a day-to-day basis, they can still:
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have an impact on the general direction of the case; and
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hold the representative plaintiff(s) accountable.
You can think of it as a company. The Representative plaintiff is the CEO of a company, while the class members are shareholders, who gets to vote at shareholder meetings, control the direction of the company and to hold the CEO accountable.
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