Law Times

Law Times • OcTOber 29, 2018 Page 9 www.lawtimesnews.com Can address gross disparity in awards Opting out of class action can have its rewards BY MARG. BRUINEMAN For Law Times T he opportunity to opt out of a class action is offered in all Ontario class-action proceed- ings, but lawyers say there are some fact situations in which pursuing individual claims makes more sense than being part of a class. And while the law around certification has generally been tested and clearly developed, the areas around those who opt out because they don't want to be part of the class, along with set- tlement approval and competing class actions, are continuing to be defined, says Samaneh Hos- seini, a partner in Stikeman El- liott LLP's litigation and dispute resolution group in Toronto. In this continuing evolution, there are cases in which a lawyer representing an individual seeks to opt out and not be part of the class in a class action, deciding instead to launch their own ac- tion, she says. The concern, she says, is the risk too many opting out could have on the actual class action. If there are several decid- ing not to be part of the class, she says, the defendant might feel the settlement will not ad- equately resolve their exposure and refuse to come to a settle- ment agreement. "That raises challenges be- cause the settlement will com- monly have an opt-out thresh- old," she says. The threshold means that if a certain percentage of the class opts out, the settlement may no longer be valid, which can "po- tentially interfere with the settle- ment," she adds. The ability to opt out is only available once, even if there are several cases being advanced on the same issue, says Linda Viss- er, a plaintiff class action lawyer and a partner at Siskinds LLP in London, Ont. In price-fixing cases — her particular area of concentra- tion — there is often more than one class action going on at once if the issue is relevant in several jurisdictions. And if a potential member of a class opts out, that person is opting out of all the class actions that are launched for that particular product. She points out that the win- dow to opt out is only offered at a prescribed period during the process for a limited amount of time. "Typically, I would say, you would only really want to opt out if you want to pursue the liti- gation on your own or if you're reaching your own separate res- olution with them," says Visser. Loretta Merritt of Torkin Manes LLP says that distinc- tion around injuries is an im- portant one and can make class actions inappropriate for some circumstances in which there was harm. She says the process is f lawed and, therefore, not always adequate for those involving sexual assault, particularly his- torical institutional abuse. There have been several class actions certified for claims of historical sexual abuse in in- stitutions, which Merritt says she finds troubling. She says the time restraints in class ac- tions can deny access to justice to many of those who have been harmed and the damage awards end up being much smaller than those who pursue individual claims. Merritt says certifying in- stitutional abuse cases as class actions started with Rum- ley v. British Columbia in 2001, which landed before the Su- preme Court of Canada. Rum- ley involved abuse and systemic negligence at a residential school for deaf and blind children run by British Columbia. A class action was certified after a government-established compensation scheme was deemed inadequate, she says, and class members were ulti- mately granted a maximum of $125,000 each. Several institutional abuse cases have since been certified and settled, including three in- volving the Huronia Regional Centre, the Rideau Regional Centre and the Southwestern Regional Centre, which were res- idential facilities in Ontario for those with developmental dis- abilities. The maximum payout was $35,000 per class member. She says there's a gross dis- parity in damage awards be- tween what members of a class are receiving in some settle- ments and the limited number of people coming forward versus what they can get if they pursue litigation individually. "I can think of a reason why someone may want to opt out. They might want $100,000 or $200,000 or $300,000 or $400,000 in damages, as op- posed to $3,711," she says, refer- ring to what some class mem- bers received in the Ontario resi- dential facilities cases. Merritt is also concerned that the limited timeline potential class members have to opt out of a class action conf licts with legislation that removes limita- tion periods for historical sexual assaults. She says if people don't come forward on the timetable set by the lawyers and the court in class actions, they are deemed to be included in the class and are pro- hibited from filing a claim in the future and their rights to pursue a claim are extinguished. "A small fraction of the fund is being paid out because a small fraction of people are coming forward to collect their money and settlements paid are shock- ingly low . . . when you look at individual actions," she says. LT FOCUS Samaneh Hosseini says there are cases in which a lawyer representing an individual seeks to opt out and not be part of the class in a class action, deciding instead to launch their own action. • Transfer Rights • Amending Agreements • Notice Of Lease & Nda • Smoke Gets in Your Eyes: Issues Involved in the use of Recreational and Medical Cannabis • Landlord's Security/Tenant Financing • Estoppel Certificates • Miscellaneous Agreements COURSE HIGHLIGHTS: COURSE LEADER: STEPHEN J. MESSINGER, SENIOR PARTNER, MINDEN GROSS LLP *Discount applies to in-class only REGISTER BEFORE OCTOBER 26 AND SAVE UP TO $300* DEALING WITH THE LEASE SUPPLEMENTARY LEASE DOCUMENTATION Toronto In-Class Course • Online Live Webinar | November 21 Register online at www.lexpert.ca/legal-programs For questions and group rates, please contact: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • • Email: cpd.centre@thomsonreuters.com Untitled-5 1 2018-10-24 2:52 PM

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