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Steps in a Class Action Litigation

The following is an outline of the most common steps in a class action. While every effort has been made to place these steps in their usual order, some steps like motions may occur at any time, and others may overlap.

  • Investigation: of the facts and law to determine if there is merit to the action and whether proceeding as a class action is appropriate. This step may include selecting a steering committee, interviewing potential class members, and selecting one or more representative plaintiffs.
  • Drafting the Statement of Claim: This specialized document sets out the particulars of the lawsuit: the parties, the remedy sought, the material facts which, if proven, entitle the plaintiff and class to recover.
  • Issuing the Statement of Claim: marks the start of the lawsuit. A copy of this pleading is filed with the Court, then served upon all named defendants.
  • Notice to the Crown: is given to the Ministry of the Attorney General for Canada if the Crown is one of the defendants, and precedes issuing the statement of claim.
  • Motions: can be initiated by either side, and may occur at any time to determine issues law or procedure.
  • Settlement: can be initiated by either side, and may occur at any time. Any settlement must be approved by the Court.
  • Certification Motion: The court decides whether the lawsuit should proceed as a class action.
  • Certification Motion Materials: Each side must provide the Court with certain written materials to support or oppose certification of the action. At a minimum, their materials must include affidavits sworn by the proposed representatives. These materials must be filed with the Court and served on the opposing side in advance of the motion hearing.
  • Cross Examinations: each side has the opportunity to cross-examine any person who swore an affidavit on the motion.
  • Motion Argument: Counsel prepare and file written argument with supporting caselaw. Counsel also appear in court to argue whether the action should be certified as a class action (i.e. whether it meets the test set out in the statute).
  • Notice to the Class (assuming certification is successful): Under the direction of the court, notice is given to potential members of the class.
  • Opt out procedures: Those who do not wish to be part of the class action can opt out and thereafter take no part in the proceeding. Those who do not opt out will be legally bound by the outcome of the action.
  • Affidavits of Documents: Subject to certain limitations, each side must provide to the other side all documents relevant to any matter in issue.
  • Oral Discovery: Each side is afforded the opportunity to “discover” the other side’s case by asking questions of the opposing party under oath. A transcript of this evidence is prepared and may be used at trial.
  • Pre-Trial Conference: Shortly before trial, the parties meet with a judge to discuss the case in order to narrow the issues and promote settlement.
  • Trial of the Common Issues: The parties appear before a judge, present their evidence and the judge renders a decision on the merits of the case based on the law and the evidence presented. The trial judge will decide each of the issues that have been certified as common to all members of the class
  • Individual Issues: If there are any individual issues that remain to be determined after the trial (i.e. those that were not common to all the class members), these will be dealt with based on a procedure determined by the trial judge.