By Alexis MacDonald, 3L
The three main objectives of class actions – judicial economy, behaviour modification, and access to justice – aspire to level the playing field for those unable to pursue their own individual claims. These objectives, however, can only be met if class members are given proper notice of the claim and their rights in the proceeding.
Notifying class members presents unique challenges when the class is known to include people who were incarcerated in federal and provincial jails. In these cases, typical ways of giving notice to class members (email, social media posts, and media releases for example) are not always sufficient, resulting in many class members unable to access important resources and information and to miss various deadlines including opt-out, settlement objection, and claims deadlines. As the typical means of giving notice present practical barriers for incarcerated class members, there are modifications and improvements courts can, and have begun to, adopt to ensure these class members are informed of their rights in a class action.
Courts have a supervisory role in overseeing notice
Section 17.6 of the Ontario Class Proceedings Act, 1992, requires courts to approve “the best notice that is practicable in the circumstances”[1]. This broad discretion allows for consideration of the unique circumstances of each class action in order to craft a bespoke notice plan that is likely to reach the particular class members in a class action. Although courts carry a supervisory role over notice, the current system lacks a single standard protocol for groups who are hard to reach, including those who are incarcerated. Without due consideration for ensuring that notice reaches incarcerated individuals, many class members will be unable to access important information which can result in missed deadlines – such as the deadline to file a claim in a settled class action.
Barriers in and out of jail
Restrictions in communications and access to legal support in prisons present significant barriers to incarcerated class members. Moreover, a notice plan in a class action does not need to guarantee that every class member receives notice of their rights, only that it is likely that the information will reach intended recipients. This means that seeking out each class member to provide them with the necessary information is not required.
In Johnson v Ontario, a class action involving the conditions at the Elgin-Middlesex Detention Centre (“EMDC”) in London, Ontario, a class member was incarcerated and transferred out of EMDC to another correctional facility in Ontario during the certification notice period – a period in which class members had to make the choice of whether to remain in the class action, or opt-out. In accordance with the court’s notice approval order, notice was to be posted at EMDC as well as sent to class members’ last known addresses by mail. Because the class member was no longer at EMDC and did not have access to the mail at his last known address, he had no knowledge of the class action when he commenced his individual lawsuit[2]. This is despite the fact that the defendant, Ontario, knew, or ought to have known, of the class member’s transfer to another facility and his current location at the time notice was circulated. Nonetheless, the court found the notice plan adequate and that it was carried out appropriately.
Another complication is the fact that incarcerated class members and those that work in correctional facilities may distrust the notice. Incarcerated class members may lack confidence that the information is reliable, and those working in corrections may be reticent to share information about claims that allege harms resulting from the conditions in jails. A good example of this is Fraser v Canada, where the court noted that while there had been a notice order for jails to post the notice in 16 facilities, eight facilities failed to do so.[3]
The 2020 Lessons Learned report also highlighted the challenges Indigenous people faced while being incarcerated during the Indian Residential Schools Class Action, resulting in them being left out of the settlement.[4] Some incarcerated survivors did not receive notice of the Independent Assessment Process or the Common Experience Process until they were released; however, this was not enough to address extenuating circumstances required by the settlement to allow class members to make their claims after the formal deadline.[5]
What the Courts have Done
Given these known issues, Canadian courts have recently moved beyond traditional forms of notice in detention-related and other class actions involving a class made up of incarcerated people. In Francis v Canada, a case regarding administrative detention in Ontario jails, the notice distribution did not solely rely on mail and newspaper ads. Ontario was required to make their best efforts to prepare a spreadsheet identifying each inmate who was incarcerated during the class period and to updated regularly throughout the claims process.[6] Routine notice given in the form of newspaper ads, websites, and direct mail may miss a sizable portion of class members because of the inability to access such information in prisons. In turn, the “best practicable” standard must be interpreted through the lived realities of incarcerated class members. This was highlighted in Johnson, where the court noted that while a notice plan may be approved and followed, that alone does not settle the issue of whether an individual class member was reasonably aware of the action and could respond in time.[7]
Improvements that make notice more effective
In order to improve notice for incarcerated class members, the following should be considered:
- Use of institutional records would allow administrators to utilize correctional records to generate targeted lists for direct delivery. Privacy protections and court oversight could guard against overbroad disclosure.
- Given the mobility and re-entry of incarcerated people, courts should be inclined to longer opt-out, settlement objection, and claim periods or multiple rounds of government-assisted posting of notices inside facilities. Additionally, courts could enforce rather than take a supervisory role in the distribution of notice to ensure
- Scheduling on-site claims assistance in the form of information sessions and recurring legal aid outreach during the claims period. This recommendation reflects on the claims administration process and recommendations around claims assistance for vulnerable classes.
- Auditing and reporting obligations for claims administrators on the effectiveness of notice practices could help adjust strategies if the reach is low. Such transparency, alongside a willingness by the parties to extend deadlines if certain metrics are not met, would help to ensure and verify that the “best practicable notice” obligation is actually met.
Ultimately, giving notice is only meaningful when the notice is seen or heard, and understood by the people affected. Parties are encouraged to consider and propose tailored protocols that address foreseeable problems and identify metrics by which the effectiveness of the notice plan can be assessed. By requiring more in facility supports, notice stops being a legal checkbox and becomes genuine mechanism by which incarcerated people can access the justice promised by class actions.
[1] Class Proceedings Act, 1992, SO 1992, c 6, s 17.6.
[2] Johnson v Ontario, 2022 ONCA 725 at para 18-22.
[3]Francis v Ontario, 2023 ONSC 5355 at para 21.
[4] National Centre for Truth and Reconciliation, Lessons Learned: Survivors’ Perspectives (Report, January 2021) at 22 https://nctr.ca/wp-content/uploads/2021/01/Lessons_learned_report_final_2020.pdf.
[5] Ibid.
[6] Francis & Chandra Distribution & Individual Issues Protocol, s. 3.5–3.7.