Bell Canada’s recent decision to lay off 2,500 managers has caught the attention of several lawyers who specialize in class-action suits, as reported in the National Post on Wednesday.  This has left me wondering, is a class-action suit the best way to address the dismissed managers’ needs?

Class-action lawsuits at times, make litigation easier for those involved. It groups plaintiffs jointly under an umbrella of similar facts and their claims are argued together as one.  The process first involves certifying a group of applicants and then bringing a claim.  If successful, Plaintiffs then receive damages paid from the entire settlement or judgment, as the case may be.

I believe, however, that employment law claimants may be better served with individual actions for wrongful dismissal, instead of joining a class action lawsuit.  Here are some potential problems that I see:

a.  Mitigation: How will the differences in each claimants mitigation efforts be dealt with in the class action lawsuit.  Although, I suspect, the differences may be dealt with by way of allocating damages or settlement monies, I find that Plaintiff’s need to receive specialized and fact specific advise in respect of their mitigation efforts, as opposed to more uniform advice they may receive in a class setting.

b.  Notice Periods: How will the individual differences between each Plaintiff in a class suit be adjusted in respect of the appropriate notice period?  As the SCC recently confirmed in the Keays v. Honda case, the Bardal analysis, which considers age, tenure, type of job and availability of comparable employment, among other facts, is still the dispositive test.  Accordingly, how can Plaintiff’s in a class setting ensure that their individual characteristics have been considered, as opposed to being lumped into a category of Plaintiff’s, in the class, that happen to have similar characteristics?  For example, although three of the Bardal factors may allow Plaintiff’s to be lumped into a category, I would argue that the availability of comparable employment analysis requires an assessment of a Plaintiff’s circumstances on an very individual basis. 

c.  Legal fees:  Class action lawsuits pay lawyers based on a percentage of recovery, in most cases.  However, in a class action setting, the work performed for each claimant is, in part, a duplication of the work performed the group.  While duplication of work is usually written off or discounted in an individualized plaintiff setting, this is probably not done to the same degree for class actions.  Further, if the lawyers are paid based on a percentage of recovery for the group, what incentive do they then have to really consider the unique circumstances facing each Plaintiff?

Daniel A. Lublin is a Toronto Employment Lawyer focusing on the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com