By Jessica Rocha, 2L
Class actions aim to enhance access to justice, create judicial efficiency, and seek to promote behaviour modification. At first glance, these objectives appear to align well with the interests of litigants who are survivors of sexual assault. In recent years, the number of class actions resolving human rights disputes has surged. Well-known cases such as the Canadian Armed Forces-Department of National Defence Sexual Misconduct Class Action Settlement, Cadets class action, and the Leduc class action have employed class proceedings as a means to provide justice to sexual assault survivors. Nevertheless, class actions are not necessarily the optimal way to adjudicate such sensitive yet significant issues. Survivors and their advocates should be aware of both the advantages and the drawbacks of class actions.
Benefits of Pursuing a Class Action
The foundation for employing class actions in cases of abuse was initially established by the Supreme Court of Canada in the case of Rumley v British Columbia. The Court acknowledged that class actions are a preferable method of large-scale human rights disputes, citing cost-effectiveness and the fact that the class often comprises a vulnerable group lacking the financial means to pursue individual civil litigation. Class actions operate on a contingency fee basis resulting in no upfront costs for class members. Class proceedings are often the only viable way to provide access to justice and redress for survivors as they remove high economic barriers to accessing justice.
Sexual assault survivors also face non-economic barriers to litigation. Stigma, fear, and hesitancy to believe survivors make seeking justice for sexual assault a challenge. However, through collective action, these obstacles are significantly diminished. Class actions can play a crucial role in reducing social and psychological barriers. The credibility of numerous independent accounts of abuse is harder for a defendant to undermine compared to the testimony of a single victim.
It is important to recognize that sexual assault actions extend beyond mere compensation. They symbolize an opportunity for survivors to step forward, to be heard and acknowledged, and to hold those responsible accountable. Participating in a class action empowers survivors with a profound sense of justice and closure. Without it, the majority of these survivors would be left without access to the courts, deprived of any compensation, and left with no opportunity for justice and closure.
Potential Drawbacks
Despite their potential benefits, sexual assault class actions also come with inherent drawbacks for survivors. Canada operates an opt-out class actions system meaning class members are automatically included in a class proceeding if they fit within the definition of the class. They do not have to sign up or opt-in to be a part of the process and bound by the outcome. An opt-out regime is supposed to assist with achieving better access to justice for class members and judicial efficiency. However, in practice, opt-out deadlines require survivors to process their trauma by a fixed date. Trauma-informed lawyering recognizes that sexual assault survivors process trauma in distinct ways, with no set timeline. Under a trauma-informed approach, progressive disclosure allows survivors to gradually reveal more information as time goes by. Such an approach is not usually possible in class actions. If a survivor has not processed their trauma within the timeline set by the opt-out deadline, they are precluded from initiating their own individual action years later, even if they did not make a meaningful choice to participate in the class action. If there is a settlement of the class action, survivors must meet another deadline to submit their claim for compensation. Again, these deadlines may not be conducive to a trauma-informed model of legal representation.
As class members, survivors do not have a traditional lawyer-client relationship with class counsel. Only the representative plaintiff is the public face of the litigation with a direct relationship with class counsel; the other class members are ‘absent’ and have a passive role. This may be preferable to some survivors; however, others may hope for a more active role in their pursuit of justice.
Additionally, the goal of judicial efficiency requires a trade-off with individualized access to justice. Collective claims may not yield the highest possible financial compensation for individual class members. While financial compensation is not the only form of justice sought by survivors, it is a significant piece. Survivors must be aware of this when deciding how to pursue their claim.
Conclusion
Overall, there are significant advantages and disadvantages to pursuing a sexual assault claim within the framework of class actions. Mitigating financial, social, and psychological barriers may provide survivors with an adequate avenue to justice. However, time limits and restrictions put on survivors’ processing of trauma through opt-out provisions and claims deadlines are not ideal. Lack of control and direct involvement in the litigation process and lower financial damages than if pursued in an individual action are also important issues to consider. Both survivors and legal practitioners should be mindful of these considerations when choosing the preferred method for dispute resolution.
