Other than for the individual issues trial in a class action, an individual litigant loses the right to settle the action when he or she is a class member in a proceeding. After certification of the class, the right to receive and accept offers on behalf of class members is reserved exclusively for the representative plaintiffs or defendants. Consequently, other class members do not generally have a right to be informed of settlement offers that have been rejected by the representative litigant.
Class proceedings permit multiple parties to settle a matter all at once, saving everyone time and money. However, not everyone has an equal voice or access to information exchanged during settlement negotiations.
The Ontario Supreme Court confirmed in Berry v. Pulley the following guidelines for settlement offers in class proceeding during the period after the certification motion and before the individual action stage:
- Any party to the class action may make settlement offers as they may be advised.
- If the offer is made to a class of plaintiffs or defendants, the offer must be made by delivery of it to the representative plaintiff or representative defendant who is acting on behalf of the class members.
- The terms of the offer may treat class members including the representative plaintiff or representative defendant differently.
- If the offer is acceptable to the representative plaintiff or representative defendant to whom it is made, it may be accepted, and the resulting settlement will be subject to court approval.
- If the offer is unacceptable to the representative plaintiff or representative defendant to whom it is delivered, then the representative plaintiff or representative defendant, as the case may be, need not disclose the offer to class members for their acceptance