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FAQ's on Class Actions

What is a Class Action?

A class action is a distinctive type of lawsuit that allows a group of people who have comparable issues to sue another party as a group, or class. A class action is a powerful legal tool which allows ordinary Canadians to pool their resources to fight injustice. The idea of a class action is that everyone who has been injured by the same conduct should not have to be put to the expense of hiring his/her own lawyer and go through the stress of a trial. Rather, a representative plaintiff can represent all people who have been injured by the same conduct. Common types of class actions include product liability, where people hurt by a defective product can combine to sue the manufacturer, or mass accidents, where people hurt can sue the people responsible for the accident.

Class actions are relatively new to Canada. However, while the Ontario Class Proceeding Act only came into force in 1993, countless ordinary Canadians have already seen its promise. Victims of faulty breast implants, corporate downsizing and mass disasters have all brought successful claims in Canada and have recovered much needed compensation.

In this case, Canadian residents who were prescribed and have taken Baycol can be part of a class action. If the representative plaintiff is able to prove that Baycol was unsafe and that the defendant drug company covered up this knowledge, then everyone in the class action wins.

What are the purposes of Class Proceedings Legislation?

The purpose of the Class Proceedings Act and other similar legislation is to help level the legal playing field between big corporations and average people. The three often cited goals of the Act and class actions may be summarized as follows:

1. Access to justice:

By allowing people to pool their resources, class actions give people who might not otherwise be able to afford a lawyer their day in court.

2. Judicial economy:

By handling a number of individual cases in a single lawsuit, multiple proceedings are avoided saving the judicial system both time and money.

3. Behaviour modification:

By allowing people to pool their resources and increasing access to the justice system, corporations are forced to be accountable for harm they have caused and this also serves to force corporations to modify their behaviour and act responsibly so as to avoid being sued.

What are the benefits of Class Actions?

Perhaps the main benefit of class actions is the saving of money. In the absence of class proceedings legislation lawsuits would have to be commenced by individuals separately. In the past, the cost of initiating a lawsuit has often proven to be prohibitive and, as such, only those who stood to recover large amounts or had the financial means to do so were able to pursue their claims through the judicial system.

Another major advantage of class actions over individual lawsuits is the reduced risk and cost for the class members. In individual lawsuits, each individual is responsible for their own lawyer’s costs. With class actions, you have the option to retain a law firm for a contingency fee basis. That is, lawyers representing the class will only be paid if the case is won or settled and those legal fees will be paid only from the money that the defendants are ordered to pay. Also, the fee which to be paid must first be approved by a judge. That way, the judge will ensure that the fees paid are fair and reasonable and based on the difficulty of the case, the amount of work done, as well as on level of risk involved.

Further, in an individual lawsuit a person could be ordered to pay some of the other side’s legal costs if some of the procedural steps or the case is lost. In a class action, class members (excluding the representative plaintiff) cannot be made to pay the other side’s legal costs no matter what happens.

What is a Representative Plaintiff?

For class actions to proceed, one or more members of the group are designated as representative plaintiffs. Representative plaintiffs are the ones who will primarily be involved with the lawsuit by dealing with the lawyers and giving evidence at the common issues trial. Other members of the class only have to become involved when the common issues are resolved and it comes time to deal with individual claims.

How do I join a Class Action?

In Ontario, once a case is certified as a class action, all members of the class who have not previously settled their claim will automatically be included in the class action. Following certification notice will be sent out to members of the class. This allows class members the opportunity to opt-out of the class action if they choose to do so.

Should you wish to participate in the Baycol Class Action, you need to make sure that we have a current mailing address for you. In this way we can keep you informed of important developments in the case. It would also be helpful if you could provide us with information about your health. If you have not already done so please complete and submit the online Medical Questionnaire so that we can learn about your case. Note that you are under no obligation to complete the questionnaire. However, by filling it out and sending it to us, it will help us evaluate your case, and better understand how Baycol may have affected you and other Canadians.

What does Certification mean?

Before an action can proceed as a class action, it is necessary to first get the court to approve the case as a class action. At the certification hearing the court does not decide the merits of the case, but merely, examines whether the case is appropriate for treatment as a class action. The court looks at whether the case raises common issues, and at whether there are alternative means for handling the plaintiff's claim. If the court decides that a class action is the “preferable procedure” for dealing with the plaintiff’s claim, then the lawsuit is certified as a class action, and it is allowed to go forward. If not, then the plaintiff will only be allowed to bring his or her claim as a separate, individual lawsuit.

What does opting-out mean?

A class member can choose not to participate in a class action by opting out. If a person opts-out, he will not be bound by any settlement or judgment in the class action. However, if they case is successful, he will also not be entitled to any payment from a settlement or judgment that is reached. A person who opts-out would, however, be entitled to bring an individual action or otherwise try to reach their own settlement with the defendant(s).

How is a judgment distributed?

Assuming the representative plaintiffs were successful at the common trial, there should be an award to be distributed to all of the class members who enrolled and did not opt-out, whether or not they actually participated in the common trial. Money can be distributed to class members in a number of ways. It may be that a class member can simply submit a claim form to the plaintiff's lawyers, in order to be re-imbursed. It may be that certain class members will need to go to a lawyer's office to give sworn evidence, or attend a mediation or arbitration, or even a mini-trial, before getting re-imbursed. In the end, how the money will be distributed, will depend on the type of case that was brought, and the number of people who are entitled to compensation. 

How long does it take to resolve a Class Action?

The short answer is, it depends. In Ontario, some class actions have gone from start to finish in under 6 months. Many class actions also settle, usually before the case proceeds to trial. In other cases however, defendants have fought long and hard to avoid liability. There are many cases which have gone on for years and years, and still have not been resolved. It is hard to predict how long a particular case will last, particularly in the face of a determined opponent. The battle for justice however, is never easy. One must be patient, and determined, in order to succeed.

Why Choose Rochon Genova?

Rochon Genova is a litigation law firm with extensive experience in class action lawsuits against pharmaceutical companies, large corporations and government. Our current class actions include defective drugs such as diet drugs and heartburn drugs, tobacco, Ford/Firestone, institutional abuse, shareholder disputes, price-fixing and vanishing insurance premiums. A list of our achievements is on our web site at www.rochongenova.com. We always continue to investigate potential new class actions.

Rochon Genova is affiliated with the pre-eminent American class action firm Lieff, Cabraser, Heimann & Bernstein, LLP. Our two firms share information, experience and expertise to work toward success on every file.

For more information on the Baycol Class Action please refer to the Notices page or contact Rochon Genova at 1-866-881-2292.