What is a Class Action?

You have probably heard about class actions, and even more so in the recent past, while related notices have been posted on social media or even in your community. But do you know what they mean, and how they work?

Class action proceedings have existed in Quebec since 1979, while also being available in other provinces and territories. They are intended as a way to promote collective access to justice by allowing one person or a small group of individuals, called the Representative(s), to file a lawsuit on behalf of all other people who are facing or faced a similar situation, who make up the Class members.

This makes class actions very different from the usual way of going to court. In a class action, only the Representative(s), and the defendants, appear in front of the court. The Representative(s) will speak for all the people in the Class with the goal of obtaining a remedy for the whole Class. If the Representative(s) win and the court awards a remedy, such as compensation, then all the Class members are also entitled to a share of that compensation or of any other remedy provided by the court. Any person who qualifies as a member of the Class is automatically entitled to benefit from any favourable result, whether by judgement or by settlement.

Because the Representative(s) would be representing the rights of all the Class members in court, it is important that all the Class members are informed about the class action. That is why here and then notices of class actions are found in social media, newspapers, radio, or television broadcasts to which you may reacting by saying, “my, my, this applies to my case, and just now am I being aware of it!”. That is normal, as the persons included in the description of the Class do not need to sign up or authorize the Representative(s) to act on their behalf, or take any steps in order to benefit from the conclusions of the case.

What happens if you do not want to be part of the Class? Once made aware of a class action, a person who would qualify as a member of the Class may rather wish to assert his or her rights individually by opting out of the group. There are certain procedures to follow to exclude oneself from a Class, as usually a request by form will have to be filed with the court within a set and defined amount of time.

Who can act as Representative(s)? One person or a small group of individuals can become Representative(s) if they:

– Have a direct interest in the problem that led to the Class action;
– Understand the issues involved in the Class action; and
– Agree to be actively involved in advancing the Class action in the interests of its members.

The Representative(s) must hire a lawyer, who will help bring the case to court and act for all Class members. This is needed because the procedure applicable to Class Actions is quite unique!

In Quebec, representative(s) may get financial aid from the Fonds d’aide aux actions collectives (Class Action Aid Funds), made available by the government to help finance class actions. In addition, as a rule, a person who hires a lawyer must pay the lawyer’s fees. But in a Class action, lawyers are usually paid only if they win. Lawyer fees are generally claimed as a percentage of the total amount awarded to the members by decision or settlement. The Representative(s) and the lawyer must agree on the percentage at the beginning of the process. In few cases, although not being the norm, courts had to intervene to ensure that professional fees remain fair and reasonable for the members, reminding Class actions’ counsels that their fees, usually part of the settlement agreements, shall not be exaggerated but rather be proportional to the remedies offered to the Class members.

THE PROCEDURAL STEPS OF A CLASS ACTION:
Step 1: Authorization
To ensure that the Representative(s) would properly represent the Class members, a special step is built into Class actions. The Representative(s) must seek and obtain authorization from a judge of the Quebec Superior Court for the Class action to move forward. The authorization is just the first step. It is a pre-match; the game is not on yet.
In order to obtain authorization, the Representative(s) must demonstrate that a set of conditions are met :

1- the Class members must have identical, similar, or related questions of law or fact;
2- the facts alleged must seem to justify the conclusions sought;
3- the proposed class must be large enough that it is not feasible to obtain a mandate from all members; and
4- the representative must show that he or she is able to adequately represent the interests of the class. Again, it will not be necessary to know the names of the Class members or how many there are. It’s enough to be able to define them as a group.

In addition, the judge will also consider whether a class action is better for solving the problem than many separate court cases and whether the class action has a chance of succeeding. If the judge finds that all the requirements are met, authorization will be given to start the class action.

Step 2: The Court considers the Merits of the Class Action
If the class action is authorized, it then proceeds like any other civil action, although class actions tend to be more complex and require extensive evidence. The role of the court in this step is to consider the merits of the case, which means the court examines the evidence and hears the legal arguments on the main issues.

Class actions are long battles. They can take years. Generally, the rule of thumb is that it takes about two years to get an action authorized and once it is authorized it can take many years before the judge makes the final decision. For example, members of a class action against banks for overcharged fees had to wait over 12 years before they got any money.

Remedies if the Class Action is Successful
In the event of a favourable final judgment, the Court will determine the compensation to which Class members are entitled, or the means to determine the compensation.

The Court will also set out the process that Class members must follow to apply for the available remedy. In some cases, this involves filling out a form and in other cases the process may be more complex. The judge will order that a notice be published in the registry for class actions, as well as in media available to the Class members, for instance local newspapers and websites. The notice must state the outcome of the Class action, what the members can get as compensation, and how to get it. Members will however have to respect a deadline or possible conditions to get their money.

If the Class Action is resolved through a Settlement
Given the length and complexity of Class actions, it is not surprising that many are settled through negotiations. As a protection for the Class members, all settlement agreements must be approved by the Court. This is to ensure that the settlement agreement treats the Class members fairly, for instance by giving them an adequate amount of compensation. In addition, a process will be put in place so that the Class members can apply for their share of the compensation.

There are at least seven class actions which may be of application to Nunavik Inuit that are in different stages of proceeding: some have been authorized with no hearing dates set yet, others still have to present their request for authorization. Moreover, class actions targeting other groups of Class members may be of interest for Nunavimmiut (ex. against Facebook; Apple; etc.). You can always consult the Superior Court of Quebec’s Registry of Class Actions, available online, and your newspaper or other source of information, as public awareness usually forms part of any Class action process right from inception.

Legal tips aim at explaining to the Nunavik Inuit clientele in a general and broad manner some elements of the law applicable in Quebec and are not legal opinions nor legal advice which can be obtained by contacting private practitioners (lawyer or notary).