Class action notice and access to justice: an accessibility and design analysis of class action notice campaigns

• Author: Frank Nasca
• Position: Graduated from Osgoode Hall Law School as the gold medalist for the class of 2023
• Pages: 99-157

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Class Action Notice and Access to Justice:

An Accessibility and Design Analysis of Class Action

Notice Campaigns

Frank Nasca

: This is a small-scale empirical study of the accessibility and

design of class action notice campaigns in Canada. Class actions are

unique among procedural tools because the majority of class members

are not parties to the litigation, but their legal rights are nevertheless

affected. In this context, the only way that class members are informed

of their legal rights and options is through the unidirectional communi-

cation tool of notice.

This paper considers whether class action notice campaigns in Can-

ada adequately inform class members of their rights and legal options,

and whether the goal of access to justice is advanced — or impeded — by

the design, accessibility, and quality of notice. After situating my study in

a discussion of literacy rates and barriers in Canada, I proceed to an ori-

ginal analysis of class action notice campaigns. Using a sample of twenty

short form notices of settlement and twenty claims administration web-

sites from actions with claims periods open in 2022, I quantitatively ana-

lyze each notice campaign for content and design. I then use an online

readability checker tool to empirically review the accessibility of the writ-

ten language used in notice campaigns.

The analysis in this paper finds that many class action notice cam-

paigns are not accessible to the average Canadian reader, suggesting that

inadequate notice may impede class members’ ability to access proced-

ural and substantive justice. Throughout the results and discussion, I

provide recommendations and samples of best practices to support the

class actions bar and bench in achieving more accessible notice.

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CLASS ACTION NOTICE AND ACCESS TO

JUSTICE: AN ACCESSIBILITY AND DESIGN

ANALYSIS OF CLASS ACTION NOTICE

CAMPAIGNS

Frank Nasca*

A. INTRODUCTION

One of the overarching goals of class actions is to increase access to jus-

tice, but from an access to justice standpoint, class actions also pose dis-

tinct challenges. Class actions are unique among legal procedures because

when a class action settles or is determined at trial, individuals in the class

are bound by the outcome and their legal rights are affected — whether

or not they consent, participate,1 or even know of the class action. This

paper considers whether notice campaigns for class actions in Canada

adequately inform class members of their rights and legal options, and

whether the goal of access to justice is advanced — or impeded — by the

design, accessibility, and quality of notice. The analysis in this paper finds

that many class action notice campaigns are not accessible to the average

Canadian reader, suggesting that inadequate notice may impede class

members’ ability to access procedural and substantive justice.

*Frank Nasca (they/them) graduated from Osgoode Hall Law School as the gold

medalist for the class of 2023. Frank has a keen interest in legal research that looks at

issues related to access to justice and has previously published award-winning

research about Ontario’s human rights system and research about access to

transgender healthcare in Ontario. Frank also holds a Master of Arts in Sustainabil-

ity Studies (Trent University, 2016), and enjoyed a career in the not-for-profit sector

before law school. I would like to thank Professor Jasminka Kalajdzic for her support

in developing this research.

1 Catherine Piché, “The Fourth Dimension to Class Actions: Access to a Meaningful

Benefit” (2018) 13:2 Canadian Class Action Review 347 at 348.