How does the role of plaintiffs' counsel in a class action
differ from the role of plaintiff's counsel in ordinary
litigation faced by a business enterprise?
At the most fundamental level, a business enterprise that has
been named as a defendant in a class action needs to understand
that the real adversary is the plaintiffs' lawyer rather than
Canadian class action statutes have clearly established the
plaintiffs' lawyer as the agent by which the goals of class
action legislation are to be realized. Provisions governing
the financing of class actions and the remuneration of class
counsel are intended to, and result in, plaintiffs' lawyers
seeking out potentially actionable claims.
Class actions subject business activity to legal scrutiny; in
some cases, this amounts to market entrepreneurs using the
machinery of the courts seek to act as regulators. As such,
the class action can supplement – or even replace –
public agency initiatives with private regulatory activity driven
largely by a profit motive.
Class action legislation contains mechanisms to make the role of
plaintiffs' counsel more financially attractive. These
include court-approved contingency fee arrangements, statutory
funding mechanisms governing fees and disbursements, and
court-approved solicitation of class members. Of these, the
contingency fee arrangement, paired with the potential for large
damage awards, is the most compelling incentive.
Contingency fees are those that are only payable if the claim
succeeds. At the start of the case, the contingency fee must
be agreed upon between plaintiff's counsel and the named
plaintiff. In order for counsel to be paid, the court must
approve the amount of the contingency fee paid to counsel.
Courts have the discretion to reduce the agreed-upon amount of
plaintiffs' fees, and have done so; courts have also approved
more creative fee arrangements, including in one Canadian province
by allowing class counsel to finance the litigation through
marketing the case as an investment.
The availability of remuneration only in the event of success
means that the plaintiffs' lawyers have a far greater personal
financial stake in the outcome of a class action than he or she
would in a traditional lawsuit. As such, the defendant will
be engaged in a negotiation or contest not so much with a group of
claimants as with plaintiffs' counsel, who is motivated by a
combination of professional integrity and economic
For more information on this and other class action issues, see
McCarthy Tétrault, Defending Class Actions in Canada, 3rd
ed., (Toronto: CCH, 2011)
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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