Mark Your Calendar! How is a Claims Application Deadline Determined?

Written By: Katie Pfaff. Special thanks to Jonathan Foreman of Foreman & Company for lending his insights in the making of this blog.

You have made it. As a class member, you have followed a class action proceeding from its certification all the way to settlement approval, and now, thankfully, you are eligible for compensation under the settlement agreement. So how much time do you have to file your claim? How is it approved? What happens if you miss the deadline? To understand how much time you have, it’s important to first understand how claims distribution protocols are designed.

Distribution Protocols

The length of a claims period is outlined in the distribution protocol, which is found in approved settlement agreements. Determining the claims procedure is complex and involves many moving parts. Factors for consideration include: how extensive the claims application form is; whether funds are to be administered claims-based (where class members are paid as their applications are approved), or pro rata (where class members all receive their share at one time after the period ends); and what must always be considered is the nature of the class action being settled.

Each of these factors help formulate how much time class members should have to complete the claims application form. For example, consider the differences in time and effort between the following two scenarios: 1) sending the serial number of a laptop with a faulty internal microchip in an online form and hitting submit; and 2) a survivor of institutional abuse having to recount and construct a narrative of the horrific events of their past for a third-party claims administrator who will adjudicate whether their story is “enough” to merit compensation under the settlement agreement. The latter claims procedure not only requires more time for class members to understand the trauma they have gone through, but class members may also be at risk for re-traumatization. Therefore, they should have more time to process their past, gather the relevant documentation, and write their narrative. Claims application periods in these types of class actions are known to extend anywhere from 12 months to two years, whereas product liability class action settlements have claims application periods that average 3-4 months.

Why Have Shorter Claims Periods?

Designing a claims period is often more of an exercise in human behaviour. The fact of the matter is this: we as people respond well to a call to action. A shorter claims period incentivizes class members to act and act quickly to ensure they submit their claim on time. Too long and class members forget to apply, and the settlement funds never make it into the hands of the people it was intended for.

This creates the tough balance that must be struck when designing claims and distribution protocols: prioritize the needs of class members, but also make the process logistically efficient for claims administrators. When approving distribution protocols, courts should scrutinize with a similar lens that they apply to settlement agreements on the whole. Distribution protocols must be fair, reasonable, and in the best interests of the class. What must not be forgotten is that they are ultimately a compromise, as found by Justice Perell in Eidoo v Infineon Technoloiges AG. While in principle class members’ needs should be prioritized, their interests are often compromised in favour of procedural and logistical efficiency in distribution protocols.

The Role of the Claims Administrator

After you have submitted your claim, it is being evaluated by a third party known as a claims administrator. A claims administrator’s role is to distribute the funds allotted in the settlement approval to eligible class members. A claims administrator is also responsible for determining whether a class member’s application is deficient and identifying what is barring them from receiving compensation. Often, claims distribution protocols have an appeal mechanism for class members if they are denied compensation. Some distribution protocols may even require the claims administrator to keep a reserve of funds set aside in the event that there are late claimants to assess their eligibility to receive compensation.  

A shorter claims window allows for the claims administration to move efficiently to analyze class members’ claims, to communicate with class members whose applications have been approved or rejected, and then manage any appeals. A claims administrator will also favour a shorter claims application period to complete their job as efficiently as possible. A considerable motivation behind shorter claims application window lies in payment schedules. Some claim administrators are given a flat fee for their services and will want to have a shorter claims period to maximize their profits. Other claims administration payments aren’t paid until all applications are resolved. This incentivizes shorter application windows to allow the claims administrator to complete the distribution as quickly as possible to be paid as quickly as possible.

How can claims periods balance the needs of class members but also be efficient logistically for claims administration?

One way to ensure that there is flexibility to support class members is to build some discretion into the distribution protocol. An example of such a provision can be found in the approved settlement agreement in the Toronto G20 Summit Class Action. The Class Action Clinic was approached by a class member who was not aware of the deadline until after it had already passed. The Clinic studied the agreement with them to determine if they were eligible for any recourse and uncovered a section that states: “[t]he Parties reserve the right, subject to the Court’s approval, to agree to any reasonable extensions of time that might be necessary to carry out any of the provisions of this Settlement Agreement.” This clause benefits class members as it allows for flexibility for claimants to pursue a claim after the deadline while still remaining within the four corners of the approved settlement agreement. Such a clause provides a best-case scenario because class counsel, the defendant, and the claims administrator are prepared for late filings, and the parties can prepare a protocol or allocate funds reserved for late applicants so that eligible class members are able to receive the full benefits of the settlement. Unfortunately, such clauses are not worked into every distribution framework, and many times once the application deadline has passed, there are no grounds for class members to apply.

Conclusion

When done properly, distribution protocols can be written, proposed, and designed to benefit class members so they can actualize the benefits of class action settlements. Unfortunately, this is not universally true of all distribution protocols in Canada. Class members have to be diligent to mark important deadlines in any ongoing class actions they are part of. At the same time, the Class Action Clinic will continue to advocate for better procedures and to assist class members in their lawsuits.

Are you involved in a class action and are having difficulty navigating the claims procedure? Connect with the Class Action Clinic to see how we can assist you in filing your claim.

Reflections on Trauma Informed Lawyering in a Class Action Settlement Hearing

By: Michael Burns

The fundamental principle of trauma informed lawyering is to be aware of the impact trauma can have upon a person. Trauma affects everyone differently and someone who has experienced trauma can react to it in a way that is unique to themselves. The legal system is often set up in a way which does not recognize trauma. Many conventional practices, procedures and policies can lead to re-traumatization. Trauma informed lawyering is focused on learning to better support those who have experienced trauma and to avoid causing re-traumatization.

Trauma Informed Lawyering: A Case Study

A recent class action serves as an opportunity to examine how a trauma informed approach is used in legal practice and how it can be improved upon in the future. Grann et al. v HMQ  (also called the Ontario Crown Ward case) involved allegations by former Crown Wards that the province breached its fiduciary duty and was negligent when it failed to make Crown Wards aware of their rights to seek compensation as a result of abuse suffered in foster care. Class Counsel and the Government of Ontario agreed to a settlement under which class members would get a maximum of $3000 (before legal fees). Justice Pierce presided over a hearing to determine if the proposed settlement was fair, reasonable and in the best interests of the class members. Over 100 class members attended the Zoom hearing, most of whom objected to the settlement as being inadequate. Justice Pierce ultimately rejected the settlement.

Typically to be an objector, a class member must write to class counsel to let them know they wish to object and class counsel then creates a list of approved class members with standing to speak at the hearing. The presiding judge decides who is allowed to speak and for how long, based on what is in the best interests of justice. While there was a small number of objectors who requested beforehand to address the court, on the day of the hearing a much larger number of people asked to speak. These class members either were unaware that they had the option to speak, were unaware of the process of being allowed to speak, or they had tried to contact class counsel but were not added to the objectors list.

The hearing was originally scheduled to take a day and a half. However, Justice Pierce made the decision that regardless of who had been put on the official speakers list, she would allow everyone who wanted to speak the opportunity to do so. Sixty class members ended up speaking, most of whom told the court about their horrific experiences of abuse and why the proposed settlement was inadequate. The hearing ultimately lasted three days.

The Good

Throughout the hearing, Justice Pierce exhibited several examples of trauma-informed practices. First, she allowed all class members the opportunity to speak and tell their stories. While this may not be seen as much, for some class members it was extremely important. Many felt that those who were charged with protecting their interests – from the government that had not protected them as children in care, to their own class counsel who were proposing what class members viewed as an unfair settlement – had never given them an opportunity to be heard. For some, it was vital that they be permitted to speak for themselves. Typically, objectors are given five minutes to speak, and the judge restricts them to the legal issues to be decided in the hearing. But Justice Pierce allowed class members to tell their story, not limiting them to legal arguments, nor the five-minute allotment. It was perhaps for this reason that many class members thanked Justice Pierce for listening to their stories; they said that no one else was listening.

Second, in addition to allowing class members to speak, Justice Pierce thanked the class members for telling their stories and she apologized for the trauma and abuse that they had experienced. For some class members, this was the first time anyone had apologized to them.

Finally, unlike in-person court hearings, where talking in the gallery would not be permitted, class members in the Zoom hearing were free to use a chat box to communicate with one another. Throughout the hearing there were constant messages being sent. These messages were usually in support of each other as they told their stories. Most class members did not know anyone else who experienced similar trauma and the chat box provided a way for class members to communicate with other people who had shared experiences. Many agreed to continue communicating after the hearing to continue their support of one another.

The Bad

While Justice Pierce allowed everyone an opportunity to speak and tell their story, this also created a burden. It was very emotionally difficult to hear what others experienced. No doubt it was also very difficult for class members to remember and disclose their trauma. One of the goals of trauma informed lawyering is to avoid re-traumatization.  Both class members who spoke and those who were present but stayed silent had to relive this trauma. Reactions varied.  Some were furious, some were distraught, some seemed hopeless, and some heartbroken. There were no formal supports for those who attended the hearing. Ideally, in a case where the focus was trauma and abuse that class members suffered, the court and counsel should prepare for and address the risk of re-traumatization. For example, creating Zoom breakout rooms where people can either have time alone or time to talk to a trauma specialist may make provide support for those who need it.

Conclusion

On the one hand, the hearing gave class members the option to tell their story and to finally be heard, in a setting where they were not alone, but where they were supported by people who had suffered like them. There is value in the experience of recounting one’s truth to an empathetic and patient judge who listens and offers apologies to survivors. On the other hand, the countless accounts of horrific abuse may have caused class members to re-suffer the trauma they experienced as a Crown Ward. A justice system that is trauma-informed should not leave it to class members to support each other or to rely on luck to get an empathetic judge. The justice system, and the lawyers, judges, and administrators who work as part of it, need to learn about and incorporate trauma-informed practices at all stages of litigation.

For more information on Trauma Informed Lawyering, please click here.

To read Justice Pierce’s decision, please click here.

                      

Pearce v Pillars: What’s the deal with ‘class action waiver’ clauses in contracts of adhesion?

By: Emma Walsh

Introduction

Class actions can, and often do, serve as a procedural vehicle to aid comparably weaker parties in holding larger organizations accountable. Yet, at the outset of their relationship, larger organizations may require individuals to contractually waive their rights to participate in a class action. The British Columbia Court of Appeal recently rejected the validity of one of these clauses in Pearce v. 4 Pillars Consulting Group Inc., 2021 BCCA 198. The decision confirms that class action waiver clauses are not only unconscionable, but also contrary to public policy.

Class Action Waiver Clauses

Class action waiver clauses often emerge in contracts of adhesion, meaning the signing party has no say in the contractual terms. Most consumer contracts are considered contracts of adhesion. In this situation, the weaker party tends to sign the contract without familiarizing themselves with the terms. Large actors take advantage of this fact by including terms that unfairly disadvantage the individual.

Class action waiver clauses are an example of these types of terms. In essence, they state that an individual forfeits their right to be part of a class action for matters arising from the contract. Individual suits or mandatory arbitration become the only avenues for recourse, and very few individuals pursue either route.

The unequal bargaining power inherent in these clauses is a catalyst for consumer protection laws across Canada; these statutes in Quebec, Ontario, and Saskatchewan include provisions that prohibit the use of class action waiver clauses in consumer contracts. Unlike these provinces, however, British Columbia’s Consumer Protection Act is silent on the use of class action waiver clauses. 

What Happened in Pearce?

One of these clauses is at the heart of Pearce. The case emerged out of the business dealings of 4 Pillars Consulting, debt advisors who provided debt restructuring services to individuals on the brink of insolvency. Their customers brought a class action against them seeking damages for allegedly operating illegally and looking to recover the fees they had paid.

In response to the class action, however, 4 Pillars attempted to invoke the class action waiver clause that was standard in their business contracts. The clause read:

To the extent permitted under applicable law, you may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or class member in a class, consolidated, or representative action. Class arbitrations, class actions, general actions, and consolidation with other arbitrations are not allowed.

The lower court found the clause was invalid because it was unconscionable and because it violated public policy. 4 Pillars appealed to the BCCA, who ruled against them and affirmed the invalidity of the class action waiver clause.

Unconscionability

The BC Courts held that the class action waiver clause was unconscionable because there existed unequal bargaining power between the parties, and because the clause conferred an undue advantage on the stronger party such that it was an improvident bargain.

First, the Courts found there to be unequal bargaining power between 4 Pillars and the class members. The class members were all on the brink of bankruptcy when engaging its services, invoking the notion of necessity. Further, the class action waiver clause did not adequately explain its consequences so that a layperson would understand them.

The clause also represented an improvident bargain. The chambers judge had performed a cost-benefit analysis and determined a class action was the only economically viable route for class members to exercise their rights; the claims at issue were complex, and individual claimants would only be able to recover a mere $5,000. Thus, the clause was a direct barrier to access to justice.

Public policy

Though already invalid on the grounds of unconscionability, the Courts further stated that class action waiver clauses violate public policy. These clauses offend three of the major goals of class action proceedings, as identified by the Supreme Court of Canada in a landmark 2001 decision.

First, these waivers prevent class actions from preserving judicial resources. Forcing litigants to pursue individual actions, which could instead be consolidated, means multiple courts would be occupied with considering the same issues. Class actions “protect the rights of all Canadians by freeing up judicial resources to resolve other conflicts.”

Second, these waivers prevent individuals from cost-sharing, posing a barrier to access to justice. One of the main purposes of class actions is to make economically viable a lawsuit that would otherwise not be worth pursuing for an individual. Again, the chambers judge had opined that it would be economically irrational to pursue this claim as an individual.

Third, these waivers absolve large actors of responsibility for wrongdoing, contrary to the behavior modification goal of class actions. Large actors are, at least in theory, constrained from committing wrongdoing so long as the threat of a large class action lawsuit looms over their heads. Curbing one’s customers’ rights from participating in a class action defeats this purpose.

Just before the BC Court of Appeal rendered its decision, the Supreme Court of Canada rejected a mandatory arbitration clause in Uber Technologies. The BC Court of Appeal affirmed that Uber further solidified the correctness of their ruling.

Looking Forward

The decision in Pearce confirms what many have previously argued: class action waiver clauses run contrary to our conceptions of access to justice. In particular, the Court of Appeal’s public policy analysis demonstrates that these clauses frustrate the very functioning of class actions. In jurisdictions lacking the legislative protections of Quebec, Ontario, and Saskatchewan, this decision will serve as a strong signal.

What am I Getting Myself Into? The Role and Responsibilities of the Representative Plaintiff(s)

By: Micheline Chevrier

Who is a “representative plaintiff”?

In a class action, the representative plaintiff is the individual who commences an action on behalf of a class of similarly situated individuals. Theoretically, the class may be as small as two individuals who would be represented by the representative plaintiff, but in reality, the class is usually made up of hundreds, thousands or tens of thousands of people. It is not uncommon for there to be more than one representative plaintiff.

Initial Steps

The first step is to sign a retainer agreement with the law firm that has decided to take on the class action (“class counsel”). The retainer agreement will set out the fees that counsel will seek at the end of the case. Often, the fees are calculated as a percentage of the anticipated recovery of the action (a contingency fee agreement). A judge will determine the appropriate fee after a settlement or trial. The fee in the retainer agreement is only one of many factors the judge will take into account.

The lawyers will draft and issue a Statement of Claim which lays out the facts that are alleged and the award being sought from the defendant(s). The proposed representative plaintiff’s name will appear on the lawsuit and materials, and it is their personal situation that will be described in this document as being representative of the claims of all the other proposed class members.

Certification and Court’s Determination of Suitability of the Representative Plaintiff

Once the claim has been issued, the first major procedural step in a class action is usually “certification”. This is a motion brought on the basis of affidavit evidence. Class counsel will seek an order from the Court that says that this case is appropriate to proceed as a class action. At this point, the representative plaintiff will have sworn an affidavit to support the motion. The lawyers generally take the lead in drafting those materials but should do so in close communication with the representative plaintiff.

A person does not become a representative plaintiff until the Court certifies and approves them as an appropriate representative of the class based on the requirements found in s. 5(1)(e) of the Class Proceedings Act (“CPA”). The representative plaintiff must fairly and adequately represent the interests of the class, have a plan for pursuing the action (class counsel takes the lead on this), and must not have a conflict of interest with any class members.

The Supreme Court of Canada in Western Canadian Shopping Centres Inc. v Dutton stated that the proposed representative need not be “typical” of the class, nor the “best” possible representative. The Court should be satisfied however, that the proposed representative will vigorously and capably prosecute the interests of the class. Generally, suitability of the representative plaintiff is not the largest hurdle to the certification of a class action. Nevertheless, there are situations where the Courts have determined the proposed representative plaintiff to be unsuitable. For instance, in Sondhi v Deloitte the Court directed that the proposed representative plaintiff be replaced. Justice Belobaba stated that the proposed class members are entitled at the very least to a representative plaintiff who can be counted on to take her job seriously, review key documents and demonstrate an appropriate level of interest in a class action that is being brought in her name. In Chartrand v General Motors Corporation, the proposed representative plaintiff’s lack of participation in the decisions relating to the litigation and poor understanding of the issues led to a finding of unsuitability and ultimately, certification was dismissed.

Responsibilities and Duties to Class Members

Class action litigation is unique in that class counsel takes the lead and takes their instructions from the representative plaintiff. The various obligations and responsibilities associated with being a representative plaintiff may include the following: instructing counsel; reviewing the Statement of Claim; taking part in oral and/or written discovery; taking part in cross-examinations; swearing affidavits; expressing opinions to class counsel; participating in settlement discussions; and communicating with class members and the media. Ultimately, the representative plaintiff must consider the interest of the class, not just their own.

Perhaps the greatest responsibility of the representative plaintiff arises if and when a settlement agreement is reached between the parties. At that point, class counsel will recommend a proposed settlement agreement as being fair, reasonable and in the best interests of the class. Thereafter, the representative plaintiff will have the opportunity to express their thoughts and determine whether to sign off on the settlement. Class action settlements must be approved by the Court. The representative plaintiff should be aware that there is a possibility that some class members will be unhappy with the settlement agreement and may formally object to it. The settlement must be in the best interests of the class members.

Costs and Financial Assistance for Representative Plaintiffs

If the case is unsuccessful at certification or trial, or at any step along the way, the representative plaintiff may be ordered to pay costs to the defendant, which can be in the hundreds of thousands of dollars. The other class members are not responsible for these costs. Usually, class counsel will agree in the retainer agreement to pay any such costs on behalf of the plaintiff. Alternatively, the Law Foundation of Ontario administers the Class Proceedings Fund (“CPF”) which is available to assist representative plaintiffs in financing disbursements used for the advancement of a class action. It also provides an indemnity against cost awards. In return for this indemnity and funding, the CPF receives a 10% fee of the net settlement fund available for distribution to the class. Merits, risk and the public interest are factors considered by the Class Proceedings Committee when lawyers apply on behalf of the representative plaintiff for funding from the CPF.

Additional Compensation for Representative Plaintiffs

In some instances, an application may be made to the Court at the time of settlement in order for the representative plaintiff to receive additional compensation (an honorarium) for their work in the class action. This too shall need to be approved by the Court. The payment of an honorarium is an exception rather than the rule. An honorarium is awarded only if the representative plaintiff “has gone well above and beyond the call of duty”, according to Park v Nongshim Co., Ltd. Honorariums range from $2,000 to $20,000, but are usually less than $10,000.

What To Do Before You Become a Representative Plaintiff

The role of representative plaintiff is an important and challenging one. You give up making decisions about your own legal dispute with the defendant because you are acting on behalf of many. For example, you will likely be required under the retainer agreement to stipulate that you will not settle your own individual claim even if the defendant offers to compensate you fully for your losses.

Here are some steps to take to ensure you have all the information you need before deciding to act as a representative plaintiff:

  1. Get independent legal advice. Before signing the retainer agreement, ask to speak to another lawyer at a different firm. You can also get advice from the Class Action Clinic.
  2. Discuss timelines and expectations with class counsel. It is important to know how long the case might take, and the possible outcomes in the case, in order to have reasonable expectations. Not all class actions settle, but very few go to trial.
  3. Insist on getting a costs indemnity. Either class counsel, the CPF or a third-party funder should protect you against any costs orders.
  4. Class actions often attract media attention. Be prepared to have your name and the details of your claim discussed openly by the lawyers, in court rulings, and by the media, especially in high-profile cases.

For more information regarding class actions and the rights and responsibilities of representative plaintiffs, please do not hesitate to contact the Class Action Clinic.