Major Steps in a Class Action

The Class Action lawsuit starts by the issuance and filing of the Statement of Claim: the legal document setting out the parameters of the lawsuit to be pursued (the allegations against the defendant and the basis for seeking to hold them accountable).

The Court is asked to “certify” the action as a class proceeding by way of a Motion for Certification. Certification is the first step in the legal process, it essentially seeks the Court’s permission to prosecute the lawsuit as a group, as opposed to asking each individual to come forward and file a separate lawsuit.

If the Court certifies the action as a class proceeding, Notice of the Certification is given to everyone affected/bound by the litigation (“Class Members”).  This Notice sets out the basic allegations in the lawsuit and gives Class Members an opportunity to choose whether or not they want to participate (if they do, they are automatically included and don’t have to do anything, if they don’t want to be part of it, they must “opt-out” within a fixed time period).

Each party must provide a list of all relevant documents to the other.

For example:

• the plaintiffs must provide the defendants with copies of, medical records, tax filings, etc…anything and everything that supports the claims made against the defendants and/or speaks to the amount of damages
• the defendants must provide all of their internal documents (emails, marketing documents, financial documents, etc…) relating to the allegations made against them in the Statement of Claim;

Once the documents have been produced and exchanged and each side has had an opportunity to review them, each party then has an opportunity to ask questions of the other in respect of these documents, with a view to further fact-gathering (“Examinations for Discovery”).

Class Action lawsuits are managed and overseen by a Judge through all the stages (i.e. certification, trial and/or settlement approval).  Whenever there are legal and/or procedural issues along the way, either party can approach the Judge for directions on how to proceed.  Because the case is managed by the Court, in an effort to keep up to date on the status of the lawsuit, Case Conferences will be held with the Judge from time to time for this reason as well. (Only the lawyers attend/participate in these Case Conferences – Representative Plaintiffs are not required to attend/participate).

Settlement: the action may be settled at any stage, but only with Court approval. The Court will approve the Settlement only if it is, among other things,  fair, reasonable and in the best interests of the Class.

If the lawsuit is not settled, there will be a Trial.

• There are three stages:

(i)           Trial of the Common Issues:  At this first trial, all of the questions that are common to each Class Member (i.e., what the defendants knew and when, what the defendants did or did not do, etc…) will be addressed and resolved (i.e., whether, generally, the defendants are liable in respect of the claims made against them).

(ii)           Notice to Class:  If successful at the Common Issues Trial a Notice must be given to the Class Members to give them the opportunity to participate because their involvement may be necessary to prove their damages.

(iii)           Individual Trials (or some other simplified Court-approved procedure):  The answers to the common questions will be applied to each individual coming forward to make a claim to determine whether or not in their particular circumstances, the defendant is liable for their specific damages, and what the amount of those damages.

For example:

If one of the claims made is that the defendants’ drug can cause or contribute to a user suffering a heart attack or stroke, and at the Common Issues Trial it is determined that the drug does in fact increase the risk of suffering a heart attack or stroke, each individual would have to prove, in a simplified manner, that their particular heart attack/stroke was more likely than not caused by their use of the drug,  (as opposed to other individual health factors).  They would then also have to show what their monetary damages are in respect of that heart attack/stroke (i.e., wage-losses, out-of-pocket medical costs, past and future care costs, etc…)

Appeals may be made at various stages of the action, by both parties.

For any inquiries with respect to class actions, please contact a lawyer directly by email or by phone at (519) 672-5666. If corresponding by email, be sure to include your name, your telephone number and a brief message.

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