A certified class proceeding takes place in two stages. The issue of fees can arise at the end of each stage.
Stage one is the common issues trial during which the issues common to all class members as set out in the Statement of Claim are resolved. If the common issues are resolved in favour of the class, the plaintiffs’ lawyers (called class counsel) will be awarded a class counsel fee. This fee forms a first charge on any amounts awarded to class members. In this lawsuit, Klein Lawyers, has signed a retainer agreement with the representative plaintiff for fees of 25% of any settlement or judgment. This fee is subject to court approval. If we are unsuccessful at the common issues trial, then this lawsuit will be at an end (subject to appeals) and no fees will be owing [25% of zero is zero].
British Columbia has “no costs” class action legislation. This means that even if the plaintiffs are unsuccessful, the defendant will not be awarded the “costs” of this action. Class members will not be held responsible for the defendant’s costs in this lawsuit.
If stage one ends successfully, either through settlement or trial, then a mechanism is put in place for individual class members to make claims against the settlement fund or judgment amount. The individual claims process is stage two. The procedures for making individual claims differ from class proceeding to class proceeding and are determined during stage one.
Depending on the claims procedure, a class member who pursues an unsuccessful claim in the second stage may be responsible for the costs of the defendant in opposing the individual claim. Some class members hire their own lawyers to help them file their individual claims. If they do, they are responsible to those lawyers for fees and disbursements as agreed between themselves and their lawyers.
Class members can wait until after stage one is complete, and the process for stage two is in place, to decide whether they want to file an individual claim for compensation. A class member does not incur the risk of costs to the defendant unless he or she files a claim in stage two — and then only if the claim is unsuccessful and if claims process provides for the recovery of costs by the defendant.
Please note that non-residents cannot wait until the end of stage one to decide if they want to opt-in to the class action. Non-residents must opt-into the class action by the deadline established by the court if they want to be class members and to have the possibility of filing a claim in the second stage. To read more about opting in, refer to the Notice of Certification (201 KB) .