Class actions can deny justice to many survivors
Recently, there have been several classaction lawsuits certified for claims of historical sexual abuse in institutions. This is a dangerous practice that can deny access to justice for many abuse survivors. If people don’t come forward on the timetable set by the lawyers and the court, they can be forever prevented from making a claim.
In class actions, the court sets a procedure for class members to be notified and given the right to “opt out” (come forward and say they do not want to be part of the class). A time limit is set and if class members do not opt out by the specified date, they are deemed to be included in the class.
Next, there is a trial of the common issues (often liability or legal responsibility is a common issue) and after the trial of the common issues, there are individual damages trials.
It is at this point that class members need to come forward and pursue their individual claims for damages. The only way they can pursue an individual claim is if they come forward before the opt out deadline and follow the procedures set out by the court at the beginning of the case. If they don’t opt out and don’t participate in the class, they are forever prevented from pursuing an individual claim.
Some people have their claims extinguished without ever even knowing about the class action. It’s hard to get notice to class members. Sexual abuse survivors often suffer psychological problems, substance-abuse problems, problems with education, employment and criminal activity in later life. Many are homeless, move around or are “off the grid.” These problems, and the long passage of time, can make it difficult to reach class members. If they don’t know, they can’t “opt out.”
Even if class members do get notice, they may not be ready to come forward. It often takes abuse survivors decades to come forward because of misplaced shame, guilt and fear, or to avoid thinking about the horrendous pain they suffered.
The importance of allowing abuse survivors to come forward in their own time was recently acknowledged by the Ontario government when it enacted Bill 132 amending the Limitations Act 2002, to eliminate limitation periods (time limits for suing) for sexual assault and childhood assault. This is a clear message to abuse survivors that their claims are important and should not be stopped simply because it has taken time to be ready to address the issue legally.
Bill 132 provides more access to justice for abuse survivors. In my view, any law or rule that requires a survivor to come forward at a particular time is potentially harmful and contrary to the public interest expressed by the Ontario government in eliminating limitation periods.
Even if they are ready to come forward, often people are better off pursing individual lawsuits. Class actions are not very empowering. Class members have a minor role to play and are not involved in instructing the lawyers or making decisions about how the case proceeds.
In an individual action, the client is the one making decisions and instructing the lawyer. For sexual abuse survivors, legal cases are usually about more than just money. They are about coming forward, being heard and acknowledged, and being empowered, as well as gaining a sense of justice and closure. In a class action, these goals can get lost.
Also, in sexual abuse class actions, the quantum of damages is usually much lower than the recovery in an individual action. So, to the extent that a sexual abuse survivor wants to maximize financial recovery, an individual action is usually a better option. Class actions can be appropriate where there are relatively minor claims.
One solution is to have an “opt-in” provision. In this way, potential class members would have the choice of coming forward, opting in and becoming part of the class action, or staying silent and not having their claims extinguished.
Class action lawyers should be required to advise potential class members to get independent legal advice to better understand the advantages and disadvantages of class actions versus individual lawsuits before making a decision whether or not to “opt-out.” Most personal injury lawyers work on contingency and give free consultations.
Any law or rule that requires an abuse survivor to come forward at a particular time is potentially harmful and contrary to the public interest
Loretta Merritt is a lawyer at Torkin Manes LLP who represents abuse survivors in civil lawsuits.