How do I join the class action?
If you fall within the definition of the class as defined by the judge in the certification order you will automatically be included in the class action unless you take steps to "opt out" or be excluded from the class in accordance with the instructions that will be provided in the notice of the certification of the action.
If you opt out you will not be bound by a subequent judgment of settlement of the action, but nor will you be able to benefit.
Should I participate in a class action?
Every member of the class would benefit from a successful class action without being burdened with the risk and expense and inconvenience of commencing their own claim.
Does it cost me to participate?
Class members are not personally liable to pay any costs for prosecuting the class action nor are they liable to pay any legal costs if the class action is not successful.
The lawyers have agreed to prosecute a class action on the basis that they will be paid for their legal services only if the class action is successful and only from the proceeds of the class action.
Court approval of lawyers' fees must be obtained for the lawyers' retainer agreement to be enforceable.
Why are you asking for donations?
The major difference between a US class action and a class action commenced in Ontario is that in the US it is very rare for a costs award to be made against the plaintiff that commenced the action, whereas, in Ontario, the "loser pays" rule applies and if the plaintiff is unsuccessful, even at the certification stage, the plaintiff could be liable to pay the legal costs of the successful party.
One of the reasons there are far fewer class actions in Ontario is that substantial costs awards have been made against plaintiffs who have failed to obtain certification or who have lost at trial.
The plaintiffs in this action could make an application to the Law Foundation of Ontario to save themselves harmless from a costs award. However, in order to do so they have to assign 10% of any future recovery to the Law Foundation, which is a substantial premium for such insurance.
In this action a fund is being established for the sole purpose of protecting the plaintiffs who commenced this action from any adverse costs awards.
The first $10,000.00 will be used to pay for initial expenses of commencing the action and the balance of the funds raised will be held by a group of trustees pending the outcome of the case. If the action is successful, the remaining funds, plus any accrued interest, will be returned to the donors on a proportionate basis. If the action is unsuccessful, then the funds will be used towards any adverse cost award.
The lawyers have accepted this action on a contingency basis and, save and except the initial payment, none of the funds collected will be used to pay the legal fees of the lawyers who are acting for the representative plaintiffs.
Will my participation in this action remain private?
A record of the names, addresses and amounts of those who have contributed will be kept by the trustees. These records will be kept confidential in accordance with the terms and conditions set out in the privacy policy.
How long could this class action take?
This very much depends upon the how aggressively the action is defended.
The Proceedings Against the Crown Act requires that 60 days prior notice be given to the Government of Ontario prior to commencing an action against them.
The motion for certification will be brought at the earliest opportunity following commencement of the action against the Government.
Thereafter, the action will proceed in the same manner as any other Superior Court proceeding, except that it is case managed, which generally means that it will not be allowed to drag on unreasonably.
A settlement could be reached at any time in the proceeding. If there is a settlement, then some time is required for court approval, notice to the class and administration of the fund.
