Will a lawsuit help Ontario students get their money back after college strike?

Frustrated and financially burdened students affected by the Ontario colleges strike are turning to the courts to try toget some cash back.

A class action was commenced on Tuesday that seeks to recover tuition money on behalf of the thousands of students at 24 colleges who have been out of class since mid-October.

Going down the lawsuit road could be a long and ultimately unsuccessful journey, but there could still be some benefits to it in the short term, say class action experts.

• Ontario announces legislation to end strike
• Faculty members vote against contract offer

"Bringing that lawsuit has got the plight of the students some more press and that is inherently pressure, political or otherwise, potentially economic, on the colleges at least, maybe the union," said Jason Squire, head of the class action group at Lerners LLP in Toronto.

Pressure on the Ontario government to step in and force an end to the strike, now in its fifth week, ramped up Thursday when the latest contract offer from the College Employer Council was rejected by striking faculty, represented by the Ontario Public Service Employees Union.

Premier Kathleen Wynne met with representatives from both sides on Thursday afternoon, and several hours later her government announced it would introduce legislation to force them into binding arbitration and end the strike. The premier said she wants to see students back in class by Monday morning.

This will be the longest college strike in Ontario's history, and students have been demanding tuition refunds since it began. A petition they started says full-time students are owed $30 per day of the strike based on the average tuition cost per semester.

Legal action can send a message

The petition and now the proposed class action are helping draw attention to students' voices, said Joel Willett, president of the College Student Alliance.

"We encourage students to have that voice heard because we don't have that voice at the table in negotiations," said Willett. "We are being ignored."

Class action lawsuits can be used as pressure tactics and, according to lawyer Ranjan Agarwal, a partner at Bennett Jones, they are also used as deterrents.

"It's supposed to send a message to industry, government, defendants, whoever is on the other side, that the next time you should be alert to the fact that you may be causing harm and you may have to pay big dollars as a result," said Agarwal, who teaches class action law at the University of Toronto.

The class action is being proposed by CharneyLawyers in Toronto. None of the lawyers was available for an interview Thursday, but a website dedicatedto the legal action says the claimalleges breach of contract and breaches of Ontario's Consumer Protection Act.

It claims that in exchange for a fee, colleges agreed to provide a full term of regularly occurring classes, among other services, and that means offering a specified number of classes over a specified period of time.The claim alleges the colleges haven't held up their end of the contract and have made false or misleading representations.

Must be certified to proceed

Aside from tuition, the law firm says students also deserve to be paid back for meal plans and residence costs.

For the class action to proceed it has to be certified by a court. A judge has to essentially agree that as a group, students have been similarly affected and that one lead plaintiff can represent them.

If the class action is certified, the lawsuit proceeds. Agarwal said often the parties come to a settlement agreement. If they don't, the suitwould proceed to trial, "probably years from now."

Convincing a judge to certify a class action is one challenge, and then winning the case is another, said Agarwal. It's debatable, for example, whether a "contract" exists between students and their school, he said.

Other class action lawsuits against schools because of strikes were unsuccessful and dragged on for months. In the fall of 2010, a judge denied the certification of a class action launched in January2009 by York University students following a three-month strike. The judge ruled the allegations that the school breached its duty and students suffered weren't backed up.

With this Ontario-widestrike there is a chancestudents could see some money back regardless of what happens with the class action.The government is requiring colleges to puttheir savings from the strike into a dedicated fund.

"The money is being set aside for students who have experienced real hardship," Deb Matthews, minister of advanced education and skills development, told reporters at Queen's Park Thursday.She wouldn't speculatehow much the fund would be worth.

Matthews said details on how much students will be compensated and in what format are yet to be determined.

Fund set up to provide relief

"We're consulting with students on that right now," Matthews said.

The colleges' contributions to that fund could actually help them avoid the class action lawsuit, said Squire.

In meeting the test for certification a judge can consider whether a class action lawsuit is the "preferable procedure," the lawyer said. Squire said the colleges may point to the hardship fund as evidence that they are managing the issue and therefore a class action isn't needed.

Whatever happens, Squire predicts students will be compensated for losing so much of their semester.

"Hook or crook, you've got to assume the students are going to get some kind of redress. The open question is whether they will be satisfied with it," said Squire.