Class Action

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AHS Class Action

What Is A Class Action?

A class action is a type of representative action that is pursued in the litigation through the Courts. It is where one or more people represent a group with similar issues, and advance the action on behalf of the group. Although class actions are common in the United States and they are becoming more common in Canada. Many countries around the world do not use these types of representative actions. Although class actions can span multiple jurisdictions, each Canadian province and/or territory has their own governing legislation. In Alberta the governing legislation for class actions is the Class Proceedings Act, SA 2003, c C-16.5 (the “Act”). The legislation governs the proceeding and provides the framework for its management.

Why Is A Class Action A Better Option Than Individual Actions?

A class action is often a better avenue for people to pursue for many reasons. Class actions allow people to pursue an action they would not otherwise have the means to do so. For instance, when the potential individual recovery may not be enough for a person to pursue a matter in Court or pay for a lawyer on their own. However, when a lawyer is acting for a large group of people, then it becomes more economical. As such, class actions provide access to justice.

Through class actions, the Courts can address more complex matters. A class action is also often a better option for the purposes of judicial economy. Judicial economy sets out that there should be maximum efficiency with respect to the Court system and the Court’s time. This is done by avoiding duplicative actions and minimizing costs for claimants.

What Is The Test For A Class Action?

In order for a class action to continue under the Class Proceedings Act, a plaintiff must obtain the approval of the Court to pursue the class action. The process for obtaining the Court’s approval is called certification. However, the Court does not approve all actions that want to continue as class proceedings. Rather, there is criteria that must be met to obtain the Court’s approval to continue as a class action.

In accordance with s. 5(1) of the Class Proceedings Act, it says:

“5(1) In order for a proceeding to be certified as a class proceeding on an application made under section 2 or 3, the Court must be satisfied as to each of the following:

(a) the pleadings disclose a cause of action;

(b) there is an identifiable class of 2 or more persons;

(c) the claims of the prospective class members raise a common issue, whether or not the common issue predominates over issues affecting only individual prospective class members;

(d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues;

(e) there is a person eligible to be appointed as a representative plaintiff who, in the opinion of the Court,

(i) will fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, in respect of the common issues, an interest that is in conflict with the interests of other prospective class members.”

The Pleadings Disclose A Cause Of Action

Generally, a person can pursue a civil claim for any reason. However, that does not mean that a civil claim is appropriate. Nor does it mean that one should pursue the civil claim. As such, for the purposes of a class action the Act seeks to ensure that there is a valid and reasonable legal claim in order to screen and remove any frivolous or vexatious actions. In addition, there must also be some basis in fact for the claim, and the plaintiff must establish that the claim is not set to fail.

There Is An Identifiable Class Of 2 Or More Persons

This is a fairly self-explanatory portion of the test for certification. Although it is necessary to identify a class of 2 or more persons, it does not mean that the Court will approve a class action of a handful of people. The Court will have to consider the numerosity of the class when making a determination as to whether a class action is the best method of resolving the matter. In the alternative, they will consider whether there are better procedures through the Courts that would better serve the claimants to obtain resolution to their matter. There must also be some basis in fact to establish that there are 2 or more persons part of the class.

There Are Common Issues Among The Class Members

The Act requires there to be common issues amongst the class members. The common issues do not need to be identical issues of fact and/or law. There have been many cases that have determined that the common issues need to advance the action. In addition, the resolution of the common issues contribute to the resolution of each of the class members’ claims. The common issues need to be a substantial ingredient to the class members’ claims.

A Class Proceeding Is The Preferable Procedure

Section 2 of the Act provides fairly clear guidance with respect to identifying whether a class action is the preferable procedure to the fair and efficient resolution of the common issues. Some of the considerations are as follows:

5(2) In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, the Court may consider any matter that the Court considers relevant to making that determination, but in making that determination the Court must consider at least the following:

(a) whether questions of fact or law common to the prospective class members predominate over any questions affecting only individual prospective class members;

(b) whether a significant number of the prospective class members have a valid interest in individually controlling the prosecution of separate actions;

(c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings;

(d) whether other means of resolving the claims are less practical or less efficient;

(e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means.

The Court seeks to satisfy itself that a class proceeding would be a fair, efficient and manageable method of resolving the action. The Court also wants to ensure that a class action is the preferable option in comparison to any other procedures.

The Representative Plaintiff Is The Right Person For The Job

The representative plaintiff needs to be someone who will fairly and adequately represent the interests of the class and who does not have any conflict of interest with the class members’ claims. Moreover, the representative plaintiff must have a plan that sets out a workable method for advancing the action. However, the plan is often developed with the assistance of counsel.

We Can Help!

If you believe you are in a situation wherein you and others have been subject to the same misconduct, you may have grounds to participate in or commence a class action. Our experienced litigation team can assess your circumstances, explain whether a class proceeding may be appropriate, and guide you through the certification process and Alberta’s legal requirements. If you have any questions, please do not hesitate to call us at 403-225-8810 or email us at [email protected].

 

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not a legal opinion or advice. This information may have changed from the date of publication, please contact Kahane Law Office for further information.