How to apply – Class Proceedings Fund
How to apply to the Class Proceedings Fund
Application procedures are set out in:
- Section 59.3 of the Law Society Act (the “Act”)
- Ontario Regulation 771/92 (the “Regulation”)
- Class Proceedings Committee Practice Directions
Applicants make separate applications for funding in respect of different stages of a proceeding, as set out in section 2 of the Regulation. These stages are:
1. Steps taken up to the end of the hearing of a certification motion;
2. Appeals of orders relating to certification;
3. Steps taken up to the end of discovery or cross-examination on affidavits;
4. Steps taken regarding the determination of common issues; and
5. Steps in respect of appeals from a judgment on common issues.
Initial applications for funding
Initial applications must follow a prescribed format which is set out in section 3 of the Regulation and include:
- A legal opinion on the likelihood of certification,
- A legal opinion describing and assessing the merits of the applicant’s case; and
- An itemized statement of financial support being requested.
Materials be bound into a “Class Proceeding Funding Application Record,” with tab numbers that correspond to the paragraph numbers of section 3(1) of the Regulation.
In addition to Tabs 1 -15, the initial Application Record should contain:
- Tab 16 which lists and describes the individual lawyers who will conduct the case on behalf of the representative plaintiff(s), a statement of whether or not a contingency fee agreement has been entered into and an estimate of the number of hours which counsel expect to devote to the case;
- Tab 17 which contains information regarding the defendant(s)’ ability to pay any judgments or comply with any orders made;
- Tab 18 which contains the draft litigation plan;
- Tab 19 which contains a disbursements budget up to and including trial; and
- Tab 20 which contains an Executive Summary of the application.
Precedents to guide you in preparing the Application Record: Tabs 1 – 20, are available under Resources. One electronic copy of this application must be forwarded to the Committee at its offices located at 20 Queen Street West, Suite 3002, Toronto, Ontario, M5H 3R3.
After the Committee receives an initial Application Record, it reviews the Application for completeness, and conducts the appropriate conflicts searches and contacts applicants for the purposes of scheduling a hearing date. The Committee endeavors to schedule hearings at the next available hearing date.
Hearings are held at the Committee’s offices, in the absence of the public. These hearings are typically held in the evening. Plaintiff counsel and the proposed representative plaintiff(s) are asked to attend and provide brief oral submissions which do not exceed 20 minutes. After these submissions, the Committee may ask questions regarding the case after which it retires to consider the matter. After it has made its decision, the Committee provides written notification of its decision to the applicant.
Supplementary applications for funding
Once an initial Application for Funding has been approved, any Supplementary Applications for Funding are made in writing only, and need only contain any additional information relevant to the Supplementary Application for Funding. These Supplementary Applications should also be compiled and should be referred to as “First, Second or Third (etc. as the case may be) Supplementary Class Proceeding Funding Application Records.” One electronic copy of such Supplementary Application Records must be provided to the Committee at its offices. The Committee will endeavor to consider any Supplementary Applications for Funding as soon as possible and will provide written notification of its decision to the applicant thereafter.
All information provided to the Committee in the Application Record, or by way of oral submissions, is held in strict confidence by Committee members. All hearings are held in camera.
As set out in Practice Direction #2, the Committee may ask the plaintiff to consent to the Committee requesting submissions from the defendant in the proceeding subject to certain safeguards set out in an “Acknowledgement and Undertaking” which the defendant is asked to file with any written submissions. In the event the plaintiff consents to defence submissions, the defendant will not be entitled to make oral submissions or receive or review any information provided by the plaintiff to the Committee. Further, defence submissions will not be treated as confidential and the plaintiff will receive a copy of them.
If the plaintiff does not consent to defence submissions, then the Committee will not contact the defendant or advise the defendant of the fact that the plaintiff has made an application for funding.
Once a proceeding is funded, the plaintiff must provide advance notice of:
- All motions in the proceeding relating to settlement,
- Details respecting any changes in any information provided in any Applications for Funding, and
- A copy of all documents filed with the court in the proceeding and any order made by the court in the proceeding (on request)
Applicants who receive funding are also asked (are required) to provide comprehensive annual (semi-annual) updates on the progress of the proceeding on or about January 31st and July 31st. Applicants are also asked (required) to provide reports in respect of any significant events in the proceeding which occur in the interim and any data or documentation requested by Fund counsel to assist Fund counsel in the preparation of written or oral submissions as to costs.
Requests for payment of funded disbursements
Pursuant to the Regulation, once the Committee awards funding, any applications for payment of such awards are made to the Board of the Law Foundation of Ontario, and not to the Committee. In order to receive payment, applicants must provide the Board with:
a) a statement of the disbursements to which the award relates, certified by the lawyer who made the disbursements to be complete and accurate; or
b) such other proof that the disbursements have been made as the Board considers appropriate.
Notwithstanding the above, the Board has discretion to make payments of awards in respect of disbursements that have not yet been paid by the plaintiff if the Board considers that the plaintiff would otherwise suffer undue hardship.
In all cases, the Board has the right to review any records which relate to any given disbursement for which financial support is claimed.