Steps of a class action

Class action litigation is comprised of several stages. Some overlap with the steps in standard civil actions, but others—such as “certification”—are distinct and fundamental to the class action regime. Below is an overview of the steps in a class proceeding:

• Pleadings
• Appointment of a case management judge
• Pre-certification motions
• Certification
• Discovery
• Exchange of Expert Reports
• Common Issues Trial
• Determination of Individual Issues
• Settlement

Pleadings

Class actions are commenced through the filing of a pleading that sets out the allegations against the alleged wrongdoers (i.e., the defendants).  The pleading may have a different name depending on the jurisdiction.  For example, in Ontario, the pleading is called a Statement of Claim.  In British Columbia, the pleading is called a Notice of Civil Claim. 

The pleading will set out, among other things:

• the defendants;
• the alleged wrongdoing;
• the proposed class (i.e., the people affected by the alleged wrongful conduct); and
• the remedies sought.  Typically, this includes a request for damages in the form of monetary compensation.  It may also include an injunction asking the defendants to stop certain conduct. 

For example, Siskinds recently filed a case against the manufacturers of Suboxone (the defendants).  The claim alleges that Suboxone drugs are defective and that the manufacturers failed to adequately warn users and their healthcare providers of the increased risk of severe dental and/or oral health issues.  The proposed class is Canadians who suffered oral health issues after using Suboxone products.  The damages sought include the cost of medical treatment for the screening, diagnosis, and treatment of their injuries caused as a result of using Suboxone. 

Filing the pleading with the provincial or federal court is usually the step that formally commences the class proceeding.  In most jurisdictions, the filing of the pleading stops the limitation period for the proposed class.  The limitation period is a statutory deadline for the commencement of litigation.  Typically, the limitation period is two years from the date the legal claim was discovered or ought to have been discovered.  However, the limitation period may vary depending on the nature of the claim and the jurisdiction. Cole Vegso, commercial litigation lawyer, outlines limitation periods in his blog post titled “Limitation periods – Often overlooked, yet potentially fatal to your legal rights.”

In most litigation, the next step would be the filing of a statement of defence by the defendants.  The statement of defence is a response to the allegations in the statement of claim.  In class actions, most defendants will wait until after certification to file a statement of defence.

Appointment of a case management judge

In most provinces, the court will appoint a case management judge who will hear all case conferences and motions relating to the class action. This allows the judge to become more familiar with the subject matter of the class action.

Pre-certification motions

Either the plaintiff or defendant may bring motions prior to certification.  These motions may include, among others, motions challenging the court’s jurisdiction over the claims, motions to strike some or all of the pleadings, motions to strike some or all of the evidence filed on certification, and/or motions seeking summary judgment (i.e., an early determination of the issues). 

Certification

Certification (authorization in Quebec) is an important motion.  As part of the certification motion, the representative plaintiff will ask the court to certify the lawsuit as a class action. The purpose of certification is to determine whether the case can properly proceed as a class action.

When the court considers the request for certification, it will consider several factors, including:

1. Do the pleadings disclose a cause of action (i.e., a valid legal claim)? 
2. Is there an identifiable class?  In other words, is there a defined group of people who are affected by the alleged wrongdoing?
3. Does the claim raise common issues of fact and law between class members?  
4. Is a class action the preferable procedure for determining the common issues?  As part of this analysis, the court will consider other potential procedures, which may include individual litigation, recourse to a tribunal or administrative body, etc.
5. Is there an adequate representative plaintiff? 

Certification is like a screening test that ensures that a case passes certain thresholds before it can proceed as a class action. As an example, Siskinds recently certified a case against the manufacturers of Paraquat, an ingredient in some popular commercial herbicides, including Gramoxone. The class action was certified on behalf of a class who were diagnosed with Parkinson’s disease after they prepared, handled, or applied Paraquat.  A copy of the certification decision is available here: 2024 BCSC 1440 (CanLII) | Gionet v Syngenta | CanLII.

Discovery

Discovery is the process where the parties exchange documents and provide oral evidence about the matters at issue in the litigation.  It is not unusual in a class action to produce hundreds of thousands of documents.  These documents are managed through document review software. 

Oral discovery is where the parties can ask each other’s representatives questions about the matters at issue in the litigation.

Exchange of expert reports

Virtually all class actions involve expert evidence.  The parties will exchange expert reports.  The cost and complexity of the evidence will depend on the facts of the case.  Typically, the cost is in the hundreds of thousands.

Common issues trial

The common issues trial is where the parties put forward their evidence before the court and the court decides the common issues.  For example, in a price-fixing case, the court will decide, among other things: did the defendants participate in an unlawful conspiracy?; did the conspiracy impact prices?; what are the aggregate (total) damages? 

Given the expense and uncertainty associated with trial, most cases settle before trial.  This is true for all types of litigation, not just class actions.

Determination of individual issues

Assuming the plaintiff is successful at the common issues trial, the court will set a process for the determination of any individual issues.  Individual issues might relate to, for example, causation and damages.  Did the relevant medical device cause your injuries?  If yes, what were your resulting damages? 

The nature of the individual issues and required evidence will depend on the nature of the case.  For example, in a consumer case, the required evidence may be limited to providing proof of purchase.  In a pharmaceutical device case, the required evidence may include medical and pharmacy records.

Settlement

At any time during the litigation process, a settlement may be reached. More information about the settlement process is covered in a blog post titled ‘Class action settlements and notice‘ by Jordyn Liebman, a class action lawyer at Siskinds LLP.