How is a Class Action Certified?
Before a class action claim can proceed to court the claim must be approved (the term the courts use is "certified").
Test for Certification
There are five criteria that must be met before a court will certify a class action. The test for certification is outlined in Nova Scotia's Class Proceedings Act.
The Court shall certify a proceeding as a class proceeding on an Application under Section 4, 5 or 6 if, in the opinion of the Court,
- The pleadings disclose or the Notice of Application discloses a cause of action;
- There is an identifiable class of two or more persons that would be represented by a representative party;
- The claims of the class members raise a common issue, whether or not the common issue predominates over issues affecting only individual members;
- A class proceeding would be the preferable procedure for the fair and efficient resolution of the dispute; and,
- There is a representative party who,
- Would fairly and adequately represent the interests of the class,
- Has produced a plan for the class proceeding that sets out a workable method of advancing the class proceeding on behalf of the class and of notifying class members of the class proceeding; and,
- Does not have, with respect to the common issues, an interest that is in conflict with the interests of other class members.
Class Proceedings Act Section 7(1).
The Act requires that all five parts of the test be met in order to certify. However, if all the criteria are met, the Court must certify the class action.
Don't Have to Prove the Merits
The certification stage is not meant to test the merits of the action. In other words, class members do not have to be able to prove that they are going to win. Rather, the certification stage focuses of the form of the action.
Not if You Win or Lose it's How You Play the Game
The question at the certification stage is not whether the claim is likely to succeed, (win or lose) but whether the law suit is one that is better suited to move forward as a class action (how you play the game).