In Fontaine v. Canada (Attorney General) 2016 ONCA 241, Chief Justice George Strathy reiterated the court’s responsibility under class action legislation to promote access to justice and to protect the interests of class members. The University of Windsor’s Faculty of Law has launched what is believed to be the first ever legal clinic dedicated to class actions in North America and whose goal is to do just that. The Class Actions Clinic will certaintly be something members of the class actions bar should familiarize themselves with, and where appropriate, direct prospective or current class members to the clinic’s services.
While Windsor Law is home to a variety of legal clinics targeted at the local Windsor-Essex community, the Class Actions Clinic is devoted to providing legal services to class members in Windsor and beyond.
A class member has unique standing in a class action. The court has typically viewed a class member as an absentee litigant. In Dabbs v. Sun Life Assurance Co. of Canada 35 O.R. (3d) 708, the court noted that in the very technical sense, members of a class action in a certified class action are not parties to the action. This was reiterated by Justice Paul Perell in Haddad v. Kaitlin Group Ltd. 2012 ONSC 4515 where he noted that class members “are not parties to the litigation in the normal sense.”
Section 14(1) of the Class Proceedings Act, 1992, the statute governing class proceedings in Ontario, provides that “in order to ensure the fair and adequate representation of the interests of the class or any subclass or for any other appropriate reason, the court may, at any time in a class proceeding, permit one or more class members to participate in the proceeding.” However, in most cases, class members are not active participants in a class action. A class member seeking to become actively involved in the action may arise during the settlement approval stage. At this stage of the litigation, a class member may wish to object to all or a portion of the settlement.
The lawyer-client relationship exists between class counsel and the representative plaintiff and does not necessarily apply between class counsel and all the class members. There are many instances where a class member has questions about an active class action that cannot be readily answered by class counsel. While class counsel strive to provide status updates regarding the litigation on its website, there are times where there may be a delay in providing a prospective or current class member a detailed answer to their inquiry.
The Class Actions Clinic identified an underserviced market: prospective and current class members seeking assistance in class proceedings. The Class Actions Clinic will be limited to such inquiries related to court notices, the filling of an opt-out form, and participating in settlement, to name a few. The clinic will not be engaged in commencing class actions of its own. The clinic also plans to develop a class actions database that will allow for open access to current and past class actions. This will provide important empirical data that will be accessible to not only the legal community but to the public as well.
The Class Actions Clinic will be led by Windsor Law professor Jasminka Kalajdzic. Kalajdzic is a well known scholar in the area of class actions law, co-authoring the leading class action texts, The Law of Class Actions in Canada, and more recently Class Actions in Canada: The Promise and Reality of Access to Justice. Notably she is one of the authors behind the Law Commission of Ontario’s Class Actions Report, released in July 2019. The report is the first of its kind in Ontario undertaking an empirical study of class actions over the last 27 years.
This article originally appeared on The Lawyer's Daily website published by LexisNexis Canada Inc.