6.4 - Class Actions Flashcards
Describe class action lawsuits, their limitation periods, and judgements
Class Action Lawsuits
-maintenance of a class action depends on compliance with the applicable rules of court concerning representative actions
-there are subtle differences in the rules for each prov. and terr., but as a general rules, a class action may only be brought where:
> each member of the class has the same interest and not just a similar interest in the subject matter of the litigation; and
> the claim is against a discernible fund or an asset existing for the benefit of the class and there only remains to be determined the right of the plaintiffs to the asset in whole or in part and the right of the individual members of the class to a part of the total class entitlement
-a brief outline of the legislation and procedures, as they apply in QC, serves as an example of how class actions operate
-such actions can have far-reaching consequences for insurers
-in QC, legislation provides for the establishment of a fund, financed by the government of QC and designed to provide financial assistance to plaintiffs in class actions who could not otherwise afford it
-‘Act Respection the Fonds D’aide aux Actions Collectives’ replaces the ‘Act Respecting Class Actions’ in QC
-the title of the Act was replaced by Section 827 of Chapter 1 of the statutes of 2014
According to the Act,
a. “assistance” means the assistance granted under Chapter III of this title;
b. “recipient” means the person who received assistance;
c. “Fonds” means the Fonds d’aide aux actions collectives established by Section 6;
d. “representative” means the person who is ascribed the status of representative for the bringing of a class action, in accordance with Article 575 of the ‘Code of Civil Procedure’ (Chapter C-25.01); and
e. “applicant” means a person who applies for assistance
In QC’s ‘Code of Civil Procedure’, members of a class action are described as:
»… natural persons, legal persons established for a private interest, partnerships and associations or other groups not endowed with juridical personality (Article 571)»
-According to the ‘Code of Civil Procedure’, a member cannot institute a class action without the prior authorization of the court obtained on a motion
-The motion must do the following:
> state the facts that give rise to the nature of the application
> describe the group the member is acting upon
> be accompanied by a notice of at least 30 days of the date of presentation
> be served on the person against whom the applicant intends to exercise the class action
-the motion may only be contested orally, and a judge may allow relevant evidence to be submitted
Limitation Periods
-limitation periods are defined as a period of time after which a cause of legal action may no longer be enforced
-the Fed. or Prov. and Terr. statutes of limitation set out the period of time in various circumstances, and any action to recover must be commenced within that period of time, or the cause of action is unenforceable
-under common law, the limitation period for a cause of action in negligence begins to run from the date the injury or damage occurred
-some statutes have altered the limitation period by specifying that the time begins to run from the date the conduct was discovered or some other event
-for example, ON’s ‘Limitations Act’ states that a proceeding concerning a claim cannot begin more than 2 years after the claim was discovered, in turn, the claim is discovered when the claimant knew or ought to have known the relevant facts of the claim as enumerated in the Act
-limitation periods under the common law and the ‘Civil Code’ can vary widely depending on the circumstances and the statutes governing a particular claim
-they are important consideration in any type of ins. but especially in liability ins. because problems often come to light many years after they initially occurred
-this often creates conflict as to when the limitation period begins to run
-courts have often been asked to settle such disputes based on the particular circumstance
-when children are involved, the situation is different, the limitation period begins to run once the age of majority is reached by the child
Judgement Interest
-liability policies also generally cover interest levied on the damage award up to the limit of the policy, however, interest accruing after the entry of judgement is payable over and above the limit of ins. - but only on the part of the judgement that falls within the limit of liability
-in nearly all cases where a court awards damages, there is a period of time of varying duration between the event that gave rise to the damages and the time when the victim received the amount awarded
-interest is normally awarded on these sums. The rate of interest may vary
-it is established by legislation and continues to be applied, notwithstanding market fluctuations, until that legislation is amended
Pre-judgement Interest on Goods
-historically, courts have been receptive to claims for pre-judgement interest for claims arising from contractual obligations for economic loss
-the interest on money owing on goods accrues from the date that payment was due and not the date the plaintiff made recovery at trial
Non-economic Damages
-many jurisdictions now have specific legislation allowing pre-judgement interest from the date of the loss or date of the notice of claim until the date of judgement for non-economic damages
Post-Judgement Interest
-in common law prov. and terr., interest usually runs from the date judgement is rendered until the damages are paid
-in some jurisdictions, the court determines the date from which interest is paid
-in QC, the interest is computed on the amount specified in the judgement form the day the action is filed to the day when it is paid
CCQ Article 1618:
»Damages other than those resulting from delay in the performance of an obligation to pay a sum of money bear interest at the rate agreed by the parties, or in the absence of agreement, at the legal rate, from the date of default or from any other later date which the court considers appropriate, having regard to the nature of the injury and the circumstances.»
CCQ Article 1619:
»An indemnity may be added to the amount of damages awarded for any reason, which is fixed by applying to the amount of the damages, from either of the dates used in computing the interest on them, a percentage equal to the excess of the rate of interest fixed for claims of the State under Section 28 of the ‘Tax Administration Act’ respecting the Ministere du Revenu over the rate of interest agreed by the parties or, in the absence of agreement, over the legal rate»
