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Focus: Are class actions going to trial more often?

Lawyer’s data suggests percentage remains constant despite assumptions to contrary
|Written By Julius Melnitzer

One popular view of the class action landscape in Canada’s common law jurisdictions is that the process has entered a new era in which a greater proportion of class actions, particularly those involving long hearings, are going to trial.

The percentage of class actions going to trial in Ontario has remained fairly constant at eight to 10 per cent, says Sonia Bjorkquist.

But preliminary results from a study spearheaded by Sonia Bjorkquist of Osler Hoskin & Harcourt LLP suggest otherwise.

“To our surprise, the percentage of class actions going to trial in Ontario has been relatively constant at eight to 10 per cent, a proportion that isn’t all that different from what we experience with individual litigation,” she tells Law Times.

“So the reason that we’re seeing more trials is likely because there are more class actions.”

Kirk Baert of Koskie Minsky LLP, who represents plaintiffs in class actions, is of a similar mind.

“I don’t believe that there are a greater proportion of cases going to trial or a greater proportion settling,” he says.

“It’s all part of the general increase in class action activity.”

Jonathan Foreman of Harrison Pensa LLP in London, Ont., has compiled actual trial statistics for 2012. Of the 92 Canadian class action trials that took place that year, the vast majority, 62, were in Quebec. Ontario had 18; British Columbia had eight; and no other province had more than one.

Of the 88 trials where the courts have determined a final result, plaintiffs won 55 or about 63 per cent of them. That overall number for Canada largely stems from the results from Quebec where Foreman scores outcomes as being 71 per cent in plaintiffs’ favour.

Ontario results were more balanced at 10-8 in plaintiffs’ favour while more defendants drew blood in British Columbia where they succeeded in five of eight trials.

Whatever the outcome, trials are now a regular feature of the class action landscape and, according to Foreman, they’ll remain so.

“What we have now are good, tangible examples of manageable trials in class actions and they have been a huge illustration for the bar, which is much more comfortable with the reality of doing common issues trials than it was five years ago,” he says.

Otherwise, interesting data is emerging from settlement statistics that Oslers has compiled.

“Our initial observation is that most class actions take four to five years to settle,” says Bjorkquist.

“About one-third of the cases, however, are settling in the first year or two, which is somewhat higher than expected.”

Putting aside outliers that have taken more than eight years to settle, parties resolve most class actions within a range of three to eight years.

“These numbers don’t seem like a big win for anyone involved because they indicate that most complex cases don’t settle early,” says Bjorkquist.

“And my own experience with business-critical litigation suggests that it does in fact take a few years to settle class actions, which tend to get traction more slowly than individual actions.”

Individual actions don’t have to endure the often-tortuous route of the certification procedure, but Bjorkquist says another reason class actions don’t settle early is because a significant number of plaintiffs don’t display much urgency in the period that follows the issue of their claim.

“In the class action context, clients are seeing long periods of inactivity — months and even years — after the claim has been issued,” she says. “It may be that many plaintiffs are watching similar cases develop south of the border before they proceed with the litigation in Canada.”

However that may be, it’s difficult for defence-side lawyers to advise clients to channel significant resources into a dormant case.

“For all the defendants know, the plaintiff may never start pushing the case,” says Bjorkquist.

Otherwise, a slightly larger number of cases settle before certification than afterwards.

“What’s interesting here is that there is no dramatic difference as to whether cases settle before or after certification, which indicates that the spectre of certification is not driving behaviour in any significant way,” says Bjorkquist.

“That’s different from a decade ago, and today it seems like people are doing what’s best for the case and taking the time to work through all of the issues before settling.”

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