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Frequently Asked Questions
What is a class action?
A class action is a type of lawsuit where a representative, or representatives, brings the lawsuit on behalf of a group of persons who have suffered a common problem. The outcome of the class action, whether good or bad, is binding on all of the members of the group known as the “class”. Class actions were introduced to advance three objectives: (1) access to justice; (2) judicial economy; and (3) behavior modification, defined below.
Access to justice: class actions level the playing field, allowing people who might not be able to afford to bring a case or who might be intimidated by a formidable opponent to find strength in numbers and bring a case on a cost efficient basis.
Judicial economy: a class action makes more cost efficient use of court resources by bringing one big case instead of many smaller cases.
Behavior modification: the high impact of a class action can be effective in causing powerful entities to change their practices in order to avoid being sued.
What are the steps in a class action?
Like any lawsuit, a class action starts with the filing of a Statement of Claim. In this case, there had been three prior actions filed by various law firms. We, the law firms, agreed to join forces, and have since issued one new unified Statement of Claim in the Federal Court in Montreal and to put the earlier separate actions on hold. We are now in settlement negotiations. At the same time, we will ask the Federal Court to appoint a judge to case manage the class action.
The next step in the class action process would normally be certification. Because the class action has the effect of binding the whole group, the Court must approve or certify the class action before it can proceed as a class action.
If the class action is certified, there will be a notification process to potential class members. At that time, the Court will approve a process whereby class members can decline to participate by “opting out” of the class action.
Once the Statement of Claim has been issued, the case has been certified, and class members who choose to do so have opt-ed out, the case will then proceed through the normal Court process through discovery, pre-trial and trial. However, the trail is limited to what are called the “common Issues”, that is, the issues that affect all class members. Typically the “common issues trial” will resolve an issue that could result in entitlement for class members. For example, in the Hislop case the judge found that restrictions on Canada Pension Plan (“CPP”) survivor’s pensions for same sex couples were discriminatory. It is frequently the case that following the common issue trial each individual class member still has to go through further steps in order to receive individual compensation. For example, in the Hislop case, survivors still had to apply for the pension, and to establish that they had been in a common law relationship with a deceased person that had paid CPP premiums.
After a successful trial there can be appeals. In the Hislop case, although the case was successful at trial, the Government appealed the case all the way to the Supreme Court of Canada.
What is a class member?
A class member is a person who is covered by the class action. Everyone who is included in the class definition that is contained in our Statement of Claim is automatically a class member. They remain a class member unless they decide to opt out when the time comes to do that. Our class definition reads as follows:
“All current or former employees of the Canadian Armed Forces, the Government of Canada or Federal Crown Agencies who were investigated, discharged, terminated, sanctioned or faced threat of sanction, by the GOC because of their sexual orientation, gender identity or gender expression, between June 27, 1969 and the present day.”
What is a representative Plaintiff?
The representative plaintiff or plaintiffs, as is the case in this class action, leads and directs the class action on behalf of the group. Representative Plaintiffs are the only ones who must publicly disclose their identities and reveal information to the Government about their situations at this time. They instruct the lawyers about the case and must approve any settlement that is offered. The representative plaintiffs are not allowed to settle their personal claim at the expense of the class. In this case we have three representative plaintiffs: Todd Ross, Martine Roy and Alida Satalic.
Who is included?
Everyone who is included in the class definition set out above is AUTOMATICALLY included at this time. You do not need to join or even contact us. However, we encourage and welcome you to contact us as we can get a better idea of how many people are affected and the various problems they have experienced.
Who are we actually suing?
Her Majesty the Queen is named as the Defendant in this class action. This means we are suing the Government of Canada.
Why did you choose a cut-off date of 1969?
Prior to 1969, same sex sexual activity, even between consenting adults, was considered a criminal offence in Canada. Although that was morally wrong, it would have provided the Government of Canada with legal grounds for disciplining or terminating employees.
I resigned and left my job voluntarily. Am I included?
Yes. Many of our class members have told us that they quit because they were working in a psychologically challenging environment or due to fear for their safety. Some were effectively forced to resign.
How do I join?
You do not need to join or even contact us. However, it is helpful to us if you do contact us as we can get a better idea how many people are affected and the various problems they have experienced.
What documentary evidence do I need to prove my claim as a class member?
It is too early to say. We have asked the Government of Canada to preserve all the documents that they might still have in their possession, related to this case. You should try to gather and preserve any documents you might have that relate to your case.
Can I bring a claim on behalf of my deceased spouse?
Deceased persons are included in our definition. However, in accordance with the Hislop ruling, deceased persons are not entitled to monetary damages under the Charter of Rights.
If I join, will my identity be kept secret?
Yes. All communications with our class members are strictly confidential. They are covered by what is called “solicitor client privilege.” At some later point it may become necessary for class members who wish to claim compensation to reveal their identity to someone other than class counsel. We do not know yet, however, should that happen, the choice is yours as to whether you would like to reveal your identity in order to receive compensation. Your identity will never be revealed outside the class counsel team without your consent.
What can I expect to get out of this and when will I get it?
It is far too early to say what any individual class member will receive. We believe that the Government of Canada is trying to negotiate a settlement in good faith at this time. However, this is a complex action and it will take time to resolve. If a settlement is achieved, it will still require court approval, followed by application for compensation.
How long will this take?
It is difficult to say how long any case will take. However, even in cases where the Government of Canada has settled in the past, such as the Hepatitis C and residential schools cases, the process of negotiating a settlement and obtaining court approval has taken several years.
How much will this cost me?
You do not have to pay a lawyer now. The legal team, known as “class counsel”, have agreed with the representative plaintiffs that they will work on a contingency fee basis. This means that you do not have to pay anything unless they get money for you. Any fee that is paid to the class counsel will be subject to court approval.
I am really stressed out because of what happened to me. Can I get help now?
Many of our class members report continuing mental health problems related to their workplace experiences. You should seek medical help if you are experiencing psychological difficulties. We are currently negotiating with the Government of Canada to provide access to emergency counseling resources for distressed class members.
Is this connected to Egale’s Just Society Report or the We Demand An Apology Network report?
There is no direct connection to either Egale’s Just Society Report or the We Demand An Apology Network Report. We respect both organizations and their Reports, and some of our legal team and representatives plaintiffs have been involved in those organizations and their Reports. However, class counsel takes their instructions from the representative plaintiffs on behalf of the class members, not from Egale or the We Demand An Apology Network. Similarly, all communications between class counsel and the representative plaintiffs are confidential. The only information shared with Egale and the We Demand An Apology Network is publicly available information, such as the court documents.
How is this connected with the appointment of Randy Boissonnault as Special LGBT Adviser to the Prime Minister and his process? Shouldn’t he be dealing with this?
Mr. Boissonnault was asked to address the matters raised in the above mentioned Reports. However, he has no mandate to deal with this class action. As an elected official who is not a lawyer, it would not be normal or appropriate for Mr. Boissonnault to conduct these negotiations. He has no budget at present in any case.
Is this class action stopping me from getting my Veteran’s Benefits?
Will I get my veteran’s benefits or other benefits?
We are negotiating for those benefits.
Is this class action holding up the apology we were expecting from the Government?
No. We are pursuing an apology as part of our negotiations, but nothing is stopping the Government from apologizing now as far as we are concerned. Contrary to popular belief, an apology does not create legal liability where none exists.