Law Times

Law Times • March 30, 2015 Page 7 www.lawtimesnews.com COMMENT let's consider new ways to boost take-up rates for class actions By david Weir For Law Times lass action administrators are seeing spe- cific roadblocks with respect to increas- ing take-up rates in certain types of class actions. As a result, we must step beyond accepted notice and administration practices to perse- vere and discuss new strategies to address the needs of both class members and the public at large. Looking for street-level perspectives on class ac- tions, class actions administrator NPT RicePoint Class Action Services Inc., talked to the public about the is- sue in a November survey. The survey asked post-secondary students, work- ing adults, and seniors about their awareness of class actions, willingness to join a class, and daily media use. Approached in a range of neighbourhoods in Toronto and London, Ont., 260 individuals discussed basic le- gal terms and recent cases. Comprised of uniform questions and methodolo- gies but admittedly carried out on a small segment of the population, the survey doesn't provide sweeping conclusions. Instead, our month-long project offered a public viewpoint of opportunities for improving the take-up rate of Canadian consumer class actions. While many participants were aware of class ac- tions, such as the chocolate price-fixing case and the U.S. Red Bull litigation that created buzz in the media, only one person interviewed had actually participated in a consumer class action. Survey responses reflected two intertwined challenges: creating awareness of a class action on a public level and forming a class with as many notified claimants as possible who are will- ing to take the steps necessary to recover their losses. It is no surprise, given the results, that an even greater difficulty lies in converting awareness into filed claims for cases not related to health, safety or other topics that often inflame both the public and media. Digging deeper into why people don't participate, interviewees showed a reluctance to wait months for small claims of $20 to $50. Participants saw cases with high payouts involving personal harm or financial damages, how- ever, as hot-button issues justifying the time and work required to participate in a class action. Apart from the appeal of large claims, others were willing to join cases regardless of claim amounts as a means of public expression or punishing wrongdoers. In other words, money took a back seat to a just cause. The survey results reflected the generally accepted trend of growing digital media use. Most working adults surveyed accessed online news publications and broadcasts daily in addition to print media, for example. Yet even among youth, more direct forms of legal notice hold merit. While social media seems like a go-to tool for engaging youth — several mentioned the Red Bull case that made the rounds on Reddit and BuzzFeed — those surveyed said online content was unlikely to drive them to fill out a claim. In fact, with the proliferation of phishing sites, technologically savvy youth may be suspicious and therefore hesitant to give out personal information online unless familiar institutions, such as their schools, had vetted and en- dorsed the web sites. Seniors were by far the least familiar with com- puter and Internet use, instead preferring TV and newspapers as their main sources of information. This group also made up the majority of respondents who wouldn't join class actions. They indicated they did not trust the legal process or felt overwhelmed by the idea of a complicated legal battle in which some believed they'd have to take an active role. While moving notice of class actions to digital plat- forms seems to make intuitive sense, too drastic a cut to traditional platforms like newspapers and TV could limit participation from a large portion of Canada's po- tential claimants, especially given the country's aging population. A 2014 Statistics Canada study of Canadian seniors' online activities showed they accessed the Internet the least despite being the fastest-growing group of users. If online services are to become the norm, tools must be in place to serve seniors as well as people of all ages who may require accommo- dations in web design, phone or direct mail services. The survey provided a chance to profile a variety of individuals based on how they view class actions. Here lies an opportunity for plaintiff 's counsel and administrators to dig deeper into the responses. Take, for instance, those surveyed who chose not to partici- pate in consumer cases with a small payout. Would their stance change given the opportunity to actively make a difference with their entitlement? This is a chance to think outside of the box, especially in class actions where damages to individuals are small and, in the class members' view, often not worthy of the time required to complete a claim. Would potential class members' motivations change given the opportunity to donate their entitlement to a charity or an institution, especially if they could consolidate their donation with other litigants to form a significant contribution? Tak- en a step further, donating an entitlement may be even more attractive if a recognized institution endorsed the idea. For example, could a university or college reach out to students and alumni who may have purchased a defective computer part and offer them the oppor- tunity to consolidate their entitlement with others into a donation to the institution or another meaningful organization? Before we can put new structures in place, we must address various legal and practical details. In a land- scape of growing technology and changing demo- graphics, there is little question that new ideas for ad- ministration warrant discussion. Further research that draws public opinion while triggering discourse and brainstorming across the legal industry may be the first step. LT uDavid Weir is president of NPT RicePoint Class Action Services Inc. u SPEAKER'S CORNER Suds and plonk take centre stage at Queen's Park he great thing about real bur- lesque, they tell me, is the tease is the show, not what you actually see or think you see. Ontario Premier Kathleen Wynne has been leading a merry dance of her own over the last few weeks much like those old time burlesque performers. It's what you don't see, however, that's the real art. Wynne has been f lashing hints about changes faster than a showgirl moving the feathers and fans around at the end of her act as she distracts the audience from the bits she doesn't want them to see: ques- tions around the bribery allegations in relation to February's byelection in Sud- bury, Ont.; the ongoing probe into the gas-plant e-mails; the lack of control on Pan Am Games spending; and looming tax hikes and job cuts in the upcoming budget. The big show, however, has been around potential changes to beer and wine sales in Ontario. What we know is the province wants to move fast and it will auction off licences to the highest bidder. At first, it was just grocery stores that stood to gain. That would cut out the small corner stores, although some have suggested the big chains like Hasty Mar- ket, Becker's, and Mac's Milk may be able to join the action. We heard 300 stores are to get li- cences with individual chains not able to hold more than 25 per cent of them. The scheme will further break down into stores allowed to sell both wine and beer and those able to offer only one or the other. Not everyone is happy. The Ontario Convenience Stores Association and its site, freeourbeer.ca, continue to push for a seat at the auction. Predictably, the United Food and Commercial Work- ers Union, which represents 6,000 Beer Store workers, and the Ontario Public Service Employees Union, which represents 5,000 LCBO em- ployees, oppose the idea. Public sentiment, however is over- whelming, although we've seen promises on the issue as far back as 1985 with for- mer premier David Peterson giving us a song and dance but little else. The relevant section here is subsection 3(1)(e) of the Liquor Control Act that sets out the mandate of the Liquor Control Board of Ontario: "To authorize manu- facturers of beer and spirits and winer- ies that manufacture Ontario wine to sell their beer, spirits or Ontario wine in stores owned and operated by the manu- facturer or the winery and to authorize Brewers Retail Inc. to operate stores for the sale of beer to the public." It wouldn't take much to tweak the mandates since, as Toronto lawyer Mi- chael Hassell of Hassell Trial Counsel notes, the key issue revolves around just three words: "Brewers Retail Inc." You could replace them with "any licensed outlet" or similar wording, he notes. "There may be a need to change some regulations, but it is very simple," he says. Small businesses deserve a level playing field, he argues, and the easiest way to do that would be to levy licence fees according to volume of sales. "It really is about fairness," says Has- sell, who had sought to bring an applica- tion in January to strike down the clause and end the Beer Store monopoly. While he's not associated with the On- tario Craft Brewers organization that rep- resents 50 small-batch brewers, Hassell is a fan. More pointedly, he has created Barge Craft Beer Distribution and Retail Co. Ltd. and wants in on the opportu- nity to open a craft-beer store as the law changes. "I think people are aware and comfort- able that consumption of alcohol comes with responsibility in Ontario," he says. "It's time." While Wynne's initial hints didn't in- clude them, she now says she's open to the idea of allowing boutique stores that craft brewers could operate collaboratively to increase the exposure of their concoc- tions. Hopefully, Hassell says, the develop- ments will further open the discussion around boutique wine outlets that are under similar corporate control. Why not create standalone boutiques carrying products from several independent On- tario wineries? Ontarians clearly want choice, and that's the sticking point with both the LCBO and the Beer Store system. Local grocery stores tailor their shelves to their community. In my east Toronto neighbourhood, there are halal selections. Out in the west end, there are kosher op- tions with everything under the sun avail- able in the rest of the city. So it is with booze. The upside will be more craft products and greater brand choices that better ref lect local tastes and provide increased accessibility. The downside will be higher prices to pay for the cost of licensing by auction, limited products in some cases, and restricted hours. What we're getting is the dance of a thousand promises as the province builds our expectations but may not deliver ev- erything we expect. But such is the art of burlesque and politics. LT uIan Harvey has been a journalist for more than 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@ rogers.com. C Queen's Park Ian Harvey T

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