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
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
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
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.