What are the Steps in Class Action?
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. Class Action is a complex process involving many steps, here’s a timeline of events during the lifespan of a typical class action suit.
1. Defining A Class for Class Action
In Ontario, Class Actions are governed by the Class Proceedings Act, 1992. The first step of every class action is the class definition. To be successful, a lot of investigative groundworks need to be done by the representative plaintiff(s). A class action cannot be certified unless an appropriate identifiable class is proposed. But the million dollar question is who’s in and who’s out? Who are the class members? How many are they? Where to locate them? Whether or not the plaintiff has proposed an appropriate class is a frequent battleground at certification. In order for a class definition to pass the scrutiny of the Court, the class must be objectively identifiable and there must be a rational relationship between the defined class and the common issues in the action. If the class definition is considered to be “overbroad” and includes individuals who do not have a claim, and shouldn’t be in the class action, the Class action could die at the certification stage.
After the representative plaintiff has properly defined a class, and determined what the common issues in the action are, the next logical step is to issue a statement of claim. A statement of claim contains a concise statement of the facts, what legal theories the class action is based on, the remedy (usually a monetary reward) the representative plaintiff request from the defendant(s).
3. Serving the Statement of Claim on the Defendant(s)
Many have gravely underestimated the difficulty of serving the defendant(s). It’s very tricky and sometimes difficult. Rule 16 of the Rules of Civil Procedure states that the originating document, i.e. the statement of claim, must be served on the defendant(s) personally. It means that the Defendant(s) must have physically received a copy of the statement of claim, before they are required by law to respond. This is usually being done via a process server. A process server, inter alias, is a professional who’s specialized in tracking down Defendant(s) and to serve them with a court document.
In employment law context, if the only defendant in a class action is the company, the employer, then process serving is not too tough. Unfortunately, in most class action in employment law context, office managers and other personnel within the company are included as defendant(s). Nowadays with many people working from home, and many high ranking company officials constantly on the move, it may not be easy to serve them personally. If you are not able to serve some of the Defendant(s), you will need to bring a motion to Court to ask for leave to permit service by an alternative to personal service, such as by Service by Mail to Last Known Address, Service on a Corporation, etc…
Processing serving is more of an art than science. And if not done properly, the Class Action dies at the process serving stage. It’s unlikely, but there’s always a possibility.
4. Defendant issues a Statement of Defence
Congratulation, now you have successfully served the Defendant(s) and have the affidavit of service attesting to that filed to Court. The Defendant now have 30 days to refute or admits the allegations in the statement of claim. Don’t be naïve that you will be getting a statement of defence within 30 days. Time after time after time, experienced defence counsel will use different excuses to keep delaying the issuance of the Statement of Defence. Considering the fact that a default judgment is not difficult to set aside, Plaintiff counsel customarily will grant the extension request, unless the delay is very unreasonable.
Default judgment is a binding judgment in favor of a plaintiff when the defendant has not responded by failing to file a statement of defence within the 30-day-time-limit.
The Statement of Defence will come eventually, as the Defendant(s) can’t keep delaying forever. When it does, the next step is to bring a Motion to Certify the Class Action. The Plaintiff has 90 days to do so on the book, but it’s not difficult to ask for an extension at the Civil Practice Court (CPC). In Ontario, all class actions must be certified. Pursuant to s. 5(1) of the Class Proceedings Act, 1992, the court shall certify a proceeding as a class proceeding if: (1) the pleadings disclose a cause of action; (2) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant; (3) the claims or defences of the class members raise common issues of fact or law; (4) a class proceeding would be the preferable procedure; and (5) there is a representative plaintiff or defendant who would adequately represent the interests of the class without conflict of interest and there is a workable litigation plan.
The motion must be supported by an affidavit sworn by the representative plaintiff. It must also contain a preliminary litigation plan – a plan on how to proceed with the litigation if it gets certified as a class action. Failing of which, the Class Action dies at certification stage.
Make no mistake, the defendant employer will most certainly oppose a motion for certification of a class action. Wouldn’t you if you are in the same shoe? After the motion to certify the class action is scheduled, but before the motion is heard by the Court, most judges will mandate pre-certification case management conferences where the judge tries to narrow down the issues to be argued about certification and sets a schedule for how things are to proceed until the motion itself is heard.
Pre-certification discovery is becoming the norm. The Employer will probably have the opportunity to cross-examine the representative plaintiff on his or her affidavit, and vice versa. The discovery is limited in scope to facts relevant to the certification motion itself, and not to inquire into the merits of the class action.
In Ontario, the Court will determine the threshold questions relating to whether the proceeding is appropriate for a class action, and if so, have the definition irons out regarding:
the precise class description;
the description of any sub-classes (if necessary);
defining the common issues; and
setting out the litigation plan in detail.
It’s not difficult to survive the certification hearing, assuming proper groundworks have been done, and that the representative plaintiff, and the class action lawyers works out a deal to finance the legal expenses, usually in the form of a contingency fee agreement.
9. Notice to Class Members
Surviving the certification hearing, the Court will approve a method of providing notice to all class members of the class action (a “class notice”) to inform them that a class action has been commenced on their behalf, and to give them the opportunity to opt out if they inclined to do so. Notice can be sent via mail, advertisements, public announcements on TV and in newspapers, etc… . After notice of the class action is sent out, disinterested class members has about 90-120 days to opt out by contacting the representative plaintiff of their intension to do so.
10. The Rest of the Way
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.
In Ontario, mediation is compulsory in any employment law class action. If a settlement has been reached, it must be approved by the Court. The court will regulate this by blocking any settlement offers that unfairly tilt toward personal gain of representative plaintiff.
Usually class member didn’t need to do anything and will only need to get involved once the case settles. In most cases, class members need to submit a claim, either online or through the mail, to receive their portion of the settlement or judgment. Information on how to do so will be found in the class notice that the class members will receive in the mail.
Do I Need A Class Action Lawyer?
An Employment Law Class Action suite is extremely complicated and is highly technical. If you are a victim resulted from a transaction involving more than one victims, you are advised to seek legal advice immediately from an experienced Employment Lawyer before the matter is statutory barred from commencing. A Class Action Lawyer can walk you through the whole employment law class action process steps by steps from A to Z, to make an employment law class action as easy as ABC.
If you intend to bring a class action against the employer as an representative plaintiff or you are an employer defending against a class action suite, Call us now at 647-849-6582 or Contact Us Now for Immediate Assistance. HTW Law can help. Don't wait, as time is of the essence!! Free Initial Consultation, No Win No Fee for qualified Employment Law Class Action case.
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