Law Times

Law Times • September 2, 2013 FOCUS Page 13 Are class actions going to trial assumptionsoften? more to contrary Lawyer's data suggests percentage remains constant despite BY Julius Melnitzer For Law Times O ne popular view of the class action landscape in Canada's common law jurisdictions is that the process has entered a new era in which a greater proportion of class actions, particularly those involving long hearings, are going to trial. But preliminary results from a study spearheaded by Sonia Bjorkquist of Osler Hoskin & Harcourt LLP suggest otherwise. "To our surprise, the percentage of class actions going to trial in Ontario has been relatively constant at eight to 10 per cent, a proportion that isn't all that different from what we experience with individual litigation," she tells Law Times. "So the reason that we're seeing more trials is likely because there are more class actions." Kirk Baert of Koskie Minsky LLP, who represents plaintiffs in class actions, is of a similar mind. "I don't believe that there are a greater proportion of cases going to trial or a greater proportion settling," he says. "It's all part of the general increase in class action activity." Jonathan Foreman of Harrison Pensa LLP in London, Ont., has compiled actual trial statistics for 2012. Of the 92 Canadian class action trials that took place that year, the vast majority, 62, were in Quebec. Ontario had 18; British Columbia had eight; and no other province had more than one. Of the 88 trials where the courts have determined a final result, plaintiffs won 55 or about 63 per cent of them. That overall number for Canada largely stems from the results from Quebec where Foreman scores outcomes as being 71 per cent in plaintiffs' favour. Ontario results were more balanced at 10-8 in plaintiffs' favour while more defendants drew blood in British Columbia where they succeeded in five of eight trials. Whatever the outcome, trials are now a regular feature of the class action landscape and, according to Foreman, they'll remain so. "What we have now are good, tangible examples of manageable trials in class actions and they have been a huge illustration for the bar, which is much more comfortable with the reality of doing common issues trials than it was five years ago," he says. Otherwise, interesting data is emerging from settlement statistics that Oslers has compiled. "Our initial observation is that most class actions take four to five years to settle," says Bjorkquist. "About one-third of the cases, however, are settling in the first year or two, which is somewhat higher than expected." Putting aside outliers that have taken more than eight years to settle, parties resolve most class actions within a range of three to eight years. "These numbers don't seem like a big win for anyone involved because they indicate that most complex cases don't settle early," says Bjorkquist. "And my own experience with business- However that may be, critical litigation suggests it's difficult for defencethat it does in fact take a side lawyers to advise clifew years to settle class ents to channel significant actions, which tend to get resources into a dormant traction more slowly than case. individual actions." "For all the defendants Individual actions know, the plaintiff may don't have to endure the never start pushing the often-tortuous route of case," says Bjorkquist. the certification proceOtherwise, a slightly dure, but Bjorkquist says larger number of cases setanother reason class actle before certification than tions don't settle early afterwards. is because a significant "What's interesting here number of plaintiffs don't is that there is no dramatic display much urgency in difference as to whether the period that follows the cases settle before or after issue of their claim. "In the class action The percentage of class actions going to certification, which indicontext, clients are seeing trial in Ontario has remained fairly con- cates that the spectre of cerlong periods of inactivity stant at eight to 10 per cent, says Sonia tification is not driving behaviour in any significant — months and even years Bjorkquist. way," says Bjorkquist. — after the claim has been "That's different from a decade ago, and issued," she says. "It may be that many plaintiffs are watching similar cases develop south today it seems like people are doing what's of the border before they proceed with the best for the case and taking the time to work through all of the issues before settling." LT litigation in Canada." STEVE NOYES I. T. Consultant Volunteer The McKellar Structured Settlement™ Financial security. Guaranteed payments. 100% tax free. Some decisions are easy. Untitled-1 1 www.lawtimesnews.com 12-05-08 11:11 AM

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