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Improving notification around class actions

Speaker's Corner

There are literally hundreds of ongoing and recently settled class actions taking place in Canada today that directly affect the rights of Ontario residents.

It seems though that the methods used to notify potential class action participants of these lawsuits are sorely lacking in scope and detail, compared with the for-profit notification model employed in the United States. Many Ontarians may be missing out as a result.

Today, Ontarians are notified of class action lawsuits by a patchwork system consisting of newspaper articles, direct mailings and information found on the websites of law firms and settlement administrators.

In class actions such as the case where the federal government lost a USB containing the confidential personal information of hundreds of thousands of Canadians, potential defendants already know the identities of the class members and the courts can order them to notify potentially damaged parties through the mail.

However, the same cannot be said for consumer protection and product liability cases, which have the potential to affect millions of people but are not necessarily high-profile cases attracting media attention. Unfortunately, both the government and legal community’s approach to solving this particular access-to-justice problem has been mediocre at best. 

Firstly, Ontario does not have a mandatory central register for class actions like Quebec, which falls under Article 1050.2 of the province’s Civil Code. In the rest of Canada, including Ontario, law firms are merely encouraged to submit information to a voluntary database run by the Canadian Bar Association. As a result, the National Class Action Database run by the CBA lists only some of the class actions operating in Ontario today.

Both the mandatary database in Quebec and the CBA’s optional one really only serve as repositories for the media to pick out what it believes to be the top public interest stories. One can’t rely on the media to report on all of the specific cases that apply to a given person’s particular situation. 

The United States has a fresher and more realistic approach to notifying people about class action settlements. There are a number of privately run websites operating south of the border that cash-strapped individuals use to give them the latest news on ongoing class action litigation, current settlements and submission deadlines. There is an economic incentive to having a well-run website providing worthwhile and up-to-date information about a potential claimant’s chances to acquire compensation in a consumer protection matter. Nothing like this operates in the private sector in Ontario today. One reason why class action notification websites have not been a fit in Ontario is that they are better suited to a jurisdiction where class litigation has historically been an instigator for social change and consumer protection in a much larger and more integrated nation-state. Class action litigation has been a mainstay in the United States since the 1960s, and more so than anywhere else in the western world. 

Meaningful class action litigation has only been around in Ontario for approximately 20 years. In addition, the ease with which people can sign up for claims on class action notification websites could further persuade ordinary people to submit false claims from the comfort of their own homes.

Nonetheless, we cannot ignore the fact that class actions are becoming a larger and more important vehicle for achieving justice in consumer protection matters in this province.

Large corporations are genuinely fearful of years-long, multi-million-dollar class action lawsuits, especially when compared to the trivial fines and other toothless penalties issued under the auspices of the Competition Act and the Canadian Code of Advertising Standards. From this perspective, class actions can be seen as a wonderful development in our jurisprudence, but it is imperative that the general public’s full participation take place or else their value becomes diminished. On that note, Ontario law firms may wish to take the initiative and channel their resources by creating the country’s first broad-based class action notification website. There are enough class action lawsuits in existence now to warrant such a project.

Websites operating in the United States have shown that serving the public interest is not strictly within the governmental sphere and, in fact, private sector entities can often be better trusted to take on these sorts of tasks. There has always been a market demand both for information and access to justice. It is time to shed our fears about “Americanizing” our province’s legal culture and better connect the Ontario public to class action counsel and settlement administrators.

Shane O’Herlihy practises civil litigation and provincial offences law in Toronto. He can be reached at 416-824-5914, or soherlihy79@gmail.com.

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