Yes, a class action law suit is an option, one we could investigate as a future tool.
Its certainly a very different approach than what the rec community has endeavoured to do previously. The main thing is to establish that the government failed in a duty, and that the failure lead to damages suffered by a wide range of plaintiffs. One example could be where government failed to properly conduct scientific research to demonstrate they exercised a standard of care when forming a policy decision - and that the policy they put in place caused financial harm to a group of plaintiffs.
In a recreational fishery worth over a $billion each year, it doesn't take long for a class action suit to be attractive to a law firm.
A class action legal suit is less risky if you have a strong case, and a law firm sees there is large potential damages. The reason being they would take on such a case on a contingency fee agreement basis, as opposed to the way most litigation is funded by plaintiffs - payment for hourly fees and disbursements.
An example could be a decision by the Federal Government to move ahead with Critical Habitat designation and management measures based on poorly constructed science advice that leads to wide spread economic harm to coastal communities impacted by Area Closures for example. That could be hundreds of millions in damages - thus on a 30% contingency fee basis could be quite attractive to a law firm to take on such as case. So the financial risk to government could be very significant, and not the sort of litigation they have become accustomed to with regard to fisheries management - although class action suits against the Federal Government are actually quite common.
Deciding to launch a class action suit is a big deal. The next steps are of course understanding that litigation is high risk for many reasons that would take way too much time to explain. Litigation would be a last resort - one would hope we can accomplish similar results through consultation or negotiation...but as a last resort, yes I would go there if we are backed into a corner.
Secondly, one would need to have the right set of circumstances created by the Federal Government to set in motion the conditions necessary for the Class Action suit to have a legal basis for success.
Timing is another consideration - often more can be accomplished by having the legal position and financial capability to carry litigation forward - the parties take you more seriously when you are negotiating!
I'm not a fan of initiating a regular legal suit, but certainly under the right set of circumstances a class action legal suit makes more sense and represents less financial burden to pursue if you have the right case.
Here's a quick bit of background in terms of how they work, and how you get one certified to move ahead:
What is a class action?
A class action is a lawsuit that groups people with a common claim together against the same defendant. Otherwise, all the claims would be separate lawsuits. Mass production and marketing of consumer goods and services mean that a single mistake or wrongful act at any stage of design, production, or distribution can harm many people in a similar way. A class action is one response to these injuries or losses (called
mass wrongs).
Often, injured people won’t sue individually because the money they seek is less than their legal costs. And it’s often not practical for just one buyer of a defective product to sue a large manufacturer. But the total loss or damages suffered by many injured people or buyers may be very large. Class actions make lawsuits more affordable by allowing all the victims of a mass wrong to share the cost of a lawsuit. Class actions are mass-produced lawsuits for mass-produced wrongs.
What kinds of cases can use a class action?
Class actions work well in product liability cases when a manufactured item, like a drug or a vehicle, is defective and injures many people. Class actions are also common against governments, banks, and businesses related to the stock market—for overpayment of taxes, illegal service charges, misrepresentations, and even systemic discrimination. Class actions may also work against companies for price fixing, monopolizing the market, and misleading advertising and information. Whenever a mistake or wrongful act affects many people, a class action may be effective. Class actions have been possible in BC since 1996.
Where do you start a class action?
The
Class Proceedings Act lets one person sue in BC supreme court for a group of people if they have similar claims against the same wrongdoer. The Federal Court of Canada also allows certain class actions involving federal law and the federal government.
How do you start a class action?
A person who has been hurt or suffered loss can apply to BC supreme court to be the
representative plaintiff in a lawsuit for a group of people. The representative plaintiff must also ask the court to
certify the lawsuit as a
class proceeding. Once the court certifies a lawsuit, it appoints the lawyer for the representative plaintiff as
class counsel. This lawyer is then the lawyer for all the class members. A defendant in two or more cases can also ask the court to convert them into a class action.
Many class actions that are certified are eventually settled. If a court doesn’t certify a class action, the members of the group can usually sue individually, as if the class action had never started.
What does a court need to certify a class action?
The court must certify the lawsuit as a class action if the following five criteria are met:
- The document that the plaintiff files in court (called the Notice of Civil Claim) shows a legally valid claim based on a mistake or wrongful act.
- The court can identify two or more people as a class, who are then the class members. The class is easily defined, so people can easily tell if they fit into the class. (In some cases, classes are again divided into subclasses.)
- There are common issues in the claims of the class members.
- A class action is the best way to fairly and efficiently resolve the common issues.
- There is a representative plaintiff—someone to represent all the members of the class.