- Why was a Notice sent to me? - Top
The Notice was published pursuant to Orders by the Courts. You may have received the Notice either because the Defendant’s records indicate that you might be a Class Member or you requested that a copy of the Notice be sent to you. If you are a tenant or occupant of a building at the address the Notice was sent, please ensure that a copy of the Notice is provided to the landlord or owner of the building. You have legal rights and choices to make before the Courts decide whether to finally approve the settlement. The Notice summarizes:
- What the lawsuits are about.
- Who is affected by the settlement.
- The basic terms of the settlement.
- Your legal rights with respect to the settlement.
You are encouraged to review the complete settlement, a copy of which is available here. The notice does not alter the settlement.
- What is a class action? - Top
In a class action lawsuit, one or more people called “representative plaintiffs” sue on behalf of other people who are similarly situated. This group of people together is referred to as the “class” or “class members.” One court decides all the issues in the lawsuit for all class members, except for those who exclude themselves from the class.
In this case, the Ontario Court will determine the issues for all class members in Canada (excluding Quebec); the Quebec Court will determine the issues for all class members in Quebec; and the U.S. District Court (Vermont) will determine the issues for all class members in the United States.
- What is this class action lawsuit about? - Top
In this class action lawsuit, it is alleged that BP Organic Shingles are defective and might fail prematurely, resulting in possible damage to the home, residence, building or other structure on which they are installed. BP Organic Shingles were manufactured and distributed by or on behalf of the Defendant, and installed on homes, residences, buildings and other structures in Canada and the United States. The lawsuits do not relate to damages for personal injury or consequential damages to the interior of the building, and the settlement does not affect claims for such damages. The Defendant denies the allegations asserted in the lawsuits and asserts that the BP Organic Shingles are free of any defect and, if properly installed, will last throughout the entire warranty period. However, in order to achieve certainty in terms of its ongoing obligations, the Defendant agreed to a settlement that will resolve the claims at issue in the class action lawsuit. The settlement represents a voluntary resolution of claims.
The class action lawsuit involves three separate proceedings in Ontario, Quebec and the United States. The Ontario action is being heard by Justice Leitch of the Ontario Superior Court of Justice and is entitled Marvin Sherebrin et al. v. Building Products of Canada Corp., Court File No. 4367/11CP.
The Quebec action is being heard by Justice Danielle Turcotte of the Quebec Superior Court and is entitled Diane Fitzsimmons v. La Cie Materiaux de Construction BP Canada, Court File No. 500-06-00580-114.
The U.S. action is being heard by Judge Murtha of the U.S. District Court (Vermont), and is entitled Robert S. Melillo et al. v. Building Products of Canada Corp., Court File No. s618-11 cnc.
- What are the shingles that are the subject of this class action lawsuit? - Top
The shingles that are the subject of this class action lawsuit (referred to in the Notice as “BP Organic Shingles”) are shingles made with a felt reinforcement base material that is saturated with asphalt, also known as “organic” roofing shingles, manufactured during the period from 1985 to 2010 under the brand names: Eclipse, Eclipse H/R, Eclipse LS, Super Eclipse, Weather-Tite (3 Tab Organic), Mirage, Rampart, Tradition, Tite-Lok, Esgard Pro-Standard, Pro-Standard, Esgard 20, Esgard 25, Citadel, Tite-On, Roofmaster, Roofmaster Classic, Roofmaster Plus, Elegance, Elegance II, Europa, and Super Lok.
- Why is the class action lawsuit being settled? - Top
The Courts have not decided in favour of the Class or the Defendant. The Defendant denies any fault, wrongdoing, illegal conduct, or liability whatsoever on its part, and asserts that the BP Organic Shingles are free of any defect and, if properly installed, will last the entire warranty period. However, in order to achieve certainty in terms of its ongoing obligations, the Defendant agreed to a settlement that will resolve the claims at issue in the class action lawsuit. The settlement represents a voluntary resolution of claims. The Defendant does not admit any wrongdoing or liability.
Both sides have agreed to a settlement in order to avoid the risks and costs associated with trial. It could take several years before a trial is heard and decided, and any subsequent appeals resolved.
- Who is affected by the settlement? - Top
The Courts have certified the class actions for settlement purposes. You are affected by the settlement if you fall within the scope of the certified classes.
In Canada (other than Quebec):
The Ontario Superior Court of Justice certified a Canadian National Class for settlement purposes only as follows:
- All individuals and entities, that own or owned, homes, residences, buildings, or other structures located in Canada whose roofs contain or contained BP Organic Shingles, excluding members of the Quebec Class.
For persons in the Province of Québec:
The Superior Court of Québec authorized a Québec Class for settlement purposes only as follows:
- All natural persons, as well as all legal persons established for a private interest, partnerships and associations having no more than 50 persons bound to it by contract of employment under its direction or control during the 12-month period preceding September 28, 2011, that own or owned, homes, residences, buildings, or other structures located in the Province of Quebec whose roofs contain or contained BP Organic Shingles.
- Note: If you own or owned homes, residences, buildings, or other structures located in the Province of Quebec and you have more than 50 employees or are a government entity or legal person established in the public interest, you cannot be part of the Québec Class, but you are part of the Canadian National Class.
In the United States:
The U.S. District Court (Vermont), certified a U.S. Class for settlement purposes only as follows:
- All individuals and entities, that own or owned, homes, residences, buildings, or other structures located in the United States whose roofs contain or contained BP Organic Shingles.
For purposes of the Notice, the Canadian National Class, the Québec Class and the U.S. Class are collectively referred to as the “Class”.
- Are there any exclusions from the Class? - Top
You are not a class member even if you have or had BP Organic Shingles installed on your home, residence, building or other structure if:
- You excluded yourself from the settlement.
- You previously filed a claim concerning your BP Organic Shingles in any court of law and your claim was resolved by a final judgment or settlement, whether or not that judgment was favourable to you.
- You are an entity related to the Defendant.
If you have previously filed a warranty claim with the Defendant, please see No. 18 for more information regarding your rights under the settlement.
- How do I know if I have BP Organic Shingles? - Top
There are several ways to determine if you have BP Organic Shingles:
- Check your receipts, invoices, brochures, etc. from when you purchased your shingles.
- Contact the contractor or company that installed your shingles.
- Ask an experienced roofer.
- Go to the Product Identification page for further information and photographs.
- Who is eligible for compensation under the settlement? - Top
Generally speaking, you will be eligible for compensation under the settlement if you meet the following criteria:
- You are a class member.
- You submit a timely and complete Claim Form, along with any other required information.
- You have not already removed the BP Organic Shingles. (unless the shingles were removed as a result of a denied warranty claim issued after June 9, 2009)
- You have experienced damage to your BP Organic Shingles. Such damage includes blistering, clawing, cracking, curling, cold weather curling, fishmouthing, and delamination. See section 4.5 of the settlement for complete information about the type of damage covered by the settlement.
- The damage to the BP Organic Shingles was not caused by improper installation, improper maintenance, weather-related events, or some other factor unrelated to the manufacturing process. See section 4.6 of the settlement for complete information.
- What constitutes damage to BP Organic Shingles? - Top
To be eligible for settlement benefits, you must establish that you have experienced damage to your BP Organic Shingles. The following conditions qualify as damage to BP Organic Shingles:
- an open hollow bump, ¾" or 19 mm or more in diameter, in the coating layer of the shingle resulting in the underlying asphalt being weathered (that is, oxidized and dirty), also known as “blistering”;
- corners and edges of shingle tabs that are curled downward toward the Roof Deck raising the portion of the tab just interior to the edges by more than ½" or 12.7 mm, also known as “clawing”;
- cracks in the top-coating of the shingle penetrating through the organic felt that present a source for leakage, also known as “cracking”;
- tab corners that are raised above the plane of the Roof Deck by at least 1/2" or 12.7 mm for BP Organic Shingles manufactured more than ten years before the submission of the Claim Form, or by at least 3/8" or 9.5 mm for BP Organic Shingles manufactured less than ten years before the submission of the Claim Form, also known as “curling”;
- tab corners that are raised above the plane of the Roof Deck by at least 3/4" or 19 mm after being placed in a freezer at 0° Celsius for 15 minutes, also known as “cold weather curling”;
- puckers of at least 1/4" or 6.35 mm that appear along the side and bottom edges of the tabs, also known as “fishmouthing”; and
- a loss of top surface of the shingle resulting in an exposure of the substrate equal in size to a dime, also known as “delamination”.
- What if the damage was caused by some other factor? - Top
You will not be eligible for settlement benefits, if the damage to the BP Organic Shingles was caused by one or more of the following:
- lightning, hurricanes, tornadoes, hailstorms, earthquakes, Act of God, fortuitous events, fire, flood, explosion, earth movement, or other force majeure events;
- settlement, distortion, failure, cracking or movement of the Roof Deck, walls or foundation of the building, as well as flashings or metal work;
- improper drainage, erosion, ordinary wear and tear, work performed on or to the roof (including the installation of any equipment on the roof), traffic on the roof, impact of foreign objects, or ice backup or ice damming;
- any defects or failure of the material used as a Roof Deck over which the BP Organic Shingles have been applied;
- the failure to install in accordance with the Defendant’s published application instructions or good roofing practices, including the failure to install the shingles using the Defendant’s cements or equivalent cements that meet applicable Can/CGSB or ASTM standards;
- attic or roof ventilation that is not in compliance with applicable building codes, or by installing BP Organic Shingles directly over Roof Decks insulated with rigid insulation board, if there does not exist at least 1” or 2.54 cm of free-flowing air space between the Roof Deck to which the BP Organic Shingles are applied and the rigid insulation board;
- the failure, on low slope roofs (between 2:12 and 4:12 pitch), to use appropriate BP Organic Shingles or to install ice and water underlayment or two layers of felt;
- a design failure of the home or other building or the failure to comply with any applicable local, provincial, state or national building code, including without limitation the National Building Code of Canada and the International Building Code,
- exposure to or application of paints or any improper cleaning solutions, coatings, or harsh air born or liquid chemicals or modifications of any kind;
- failure to perform required roof maintenance or by improper roof maintenance such as pressure washing, failure to remove vegetation, moss, algae, fungus, lichens, mold or mildew growth from the roof, or failure to remove tree branches that are in contact with the roof. However, Damage to BP Organic Shingles caused by “blue-green” algae will only constitute a Causation Defense to the extent that the Applicable Warranty does not warrant against “blue-green” algae; and
- intentional, reckless, or negligent conduct of a party other than the Defendant.
- What disputes does the settlement resolve? - Top
The proposed settlement seeks to resolve all past, present and future, known and unknown, direct or contingent claims of Class Members against the Defendant and its related entities, including Emco Corporation and BPCO Corp., in relation to damage to BP Organic Shingles. The settlement does not affect Class Member claims for personal injury or consequential damage to the interior of the building.
- How does the settlement work? - Top
The settlement codifies the BP Organic Shingles warranty and provides for some additional enhancements to the BP Organic Shingles warranty. Key improvements to the BP organic shingles warranty program include the following. (Section references are to the Settlement Agreement, a copy of which is available by clicking here)
- If 5% or more of a roof slope is damaged, Eligible Claimants will be entitled to settlement benefits based on the total number of squares on the entire roof slope. Previously, the entire roof slope would only be replaced in 10% or more of the roof slope was damaged (sec. 6.2)
- In most circumstances, during the Claimant’s warranty proration period, Eligible Claimants will now receive benefits based on a prorated value of the actual costs of labour and materials rather than being limited to the original costs of labour and materials (sec. 6.4)
- The minimum non-proration period is now the latter of 5 years and the non-proration period provided for in the Applicable Warranty. (sec. 2.7)
- Eligible Claimants may choose a cash settlement option if they do not wish to replace their roof with shingles manufactured by BP (sec. 6.5)
- If a Claimant has previously filed a warranty claim with the Defendant and the claim was denied, in whole or in part, after June 9, 2009, the Claimant is able to make another claim, even if the Claimant has replaced the BP Organic Shingles in question. Claimants whose claims were rejected prior to June 9, 2009, may only file another claim if the conditions of their BP Organic Shingles have worsened, such that they now qualify as Damaged BP Organic Shingles (sec. 4.2, 4.3)
- In the event that a roof inspection is required, Claimants will be notified of the date and time the inspection will occur (sec. 5.18)
- The Defendant must now adhere to specific deadlines to ensure prompt resolution of claims (sec. 5.19)
- In the event that a Claim is rejected, the Defendant is required to provide reasons for the rejection as well as information explaining the Claimant’s right to request a review of the decision (sec. 5.21)
- Where a claim has been rejected in whole or in part, the Claimant can request a review of the decision by an independent court-appointed third-party. (sec. 5.25, 5.26, and 5.27)
You will only be eligible for compensation if you meet the criteria set out in No. 9 above. Assuming you are eligible for compensation, the amount of the compensation payable to you will depend on the following factors:
- The terms of the applicable warranty.
- The number of damaged BP Organic Shingles on the relevant roof slope.
- The length of time the BP Organic Shingles have been installed on your roof.
- Whether the claimant selects the cash settlement option or the repairs settlement option.
- What compensation is payable under the settlement? - Top
Class Members can select between the cash settlement option and the repairs settlement option.
In reviewing the settlement options, it is useful to keep the following in mind:
- A “square” means 100 square feet of roofing shingles. A “square” is typically composed of three bundles/packages of shingles.
- The non-proration period is the period during which the Defendant is obligated to pay the full settlement benefits without any “proration” or discount to account for the years of use you have already received from your shingles. The non-proration period is the later of five years from the date of installation and the non-proration period as per the applicable BP warranty. The applicable non-proration periods are posted on the Settlement Benefits page.
- After the non-proration period, settlement benefits will be prorated or discounted to account for the years of use you have already received from your shingles. For example, if you file a claim for BP Organic Shingles that have a warranty period of 30 years (360 months) exactly 12 years after they were installed, you would have used the shingles for 144 months and 216 months would remain on the warranty. Your settlement benefits would be calculated by multiplying the compensation amount by 216/360 (the proportion of the warranty that remains).
The number of squares on which settlement benefits will be calculated will depend on the size of the roof slope and the extent of damaged BP Organic Shingles on the roof slope. If the damaged BP Organic Shingles make up less than 5% of the roof slope, settlement benefits will be calculated based on the number of damaged BP Organic Shingles. If the damaged BP Organic Shingles make up more than 5% of the roof slope, settlement benefits will be calculated based on the number of squares on the entire roof slope.
Under the cash settlement option, during the non-proration period, eligible Class Members in Canada will receive Cdn $75/square and eligible Class Members in the United States will receive US $75/square. After the non-proration period, the Cdn $75/square (or US $75/square, as appropriate) will be prorated or discounted to account for the use the eligible Class Members have already received from their BP Organic Shingles.
Under the repair settlement option, eligible Class Members will be compensated for the costs of repairing and replacing the damaged BP Organic Shingles, in accordance with the terms of the applicable warranty. During the non-proration period, the Defendant will reimburse the eligible Class Member for the full costs of repairs or replacement in accordance with the terms of the applicable warranty. After the non-proration period, the Defendant will reimburse the eligible Class Member for the costs of repairs or replacement in accordance with the terms of the applicable warranty on a prorated basis, to account for the use the eligible Class Members have already received from their BP Organic Shingles. In completing the repairs or replacement, eligible Class Members can select the roofer of their choice, but must use shingles manufactured by the Defendant. Copies of the applicable warranties are on the Warranty Documents page.
- How do I claim for settlement benefits? - Top
Claim Forms can be obtained by completing the request form located at the top right corner of this page or by calling 1-800-515-3626. Claim Forms will be sent within 7 business days of the request.
In order to claim for settlement benefits, you must submit a completed Claim Form, together with any required information. You must also respond to reasonable requests from the Defendant for more information, including sample shingles. The Claim form requires the following information (items marked with an asterisk (*) are mandatory):
- Your name, address, and telephone number*
- The address on which the shingles are installed (if different from Mailing Address)*
- Whether you have assigned any of the claims relating to your shingles and if so, any documentation related to the assignment*
- Whether you have previously filed a claim with BP in respect of your shingles and if so, the date and outcome of the claim
- Whether you have any co-owners and if so, what their names and addresses are*
- Two forms of proof of property ownership*
- Proof of purchase of BP shingles*
- The brand name and colour of your BP shingles*
- Proof of the date of installation of your BP shingles*
- The name and contact information of your roofer if you had a roofer install your shingles
- The name and contact information of your dealer if you purchased your shingles directly from a supply retailer or dealer
- The type of roof structure the shingles are installed on*
- The number of slopes on your roof
- The roof slope (if known)
- The measurements of your roof*
- The numbers of roof bundles installed on your roof OR the square footage of your roof structure*
- A drawing of your roof showing all roof slopes
- Any concerns you have with your roof *
- The number of slopes with damaged shingles*
- The number of damaged shingles on each roof slope*
- Whether you have received any prior compensation from an insurer, builder, roofer or any other party in respect of the shingles*
- Any reports you have received from a roofing contractor documenting the condition of your BP shingles
- Photographs showing the condition of the shingles (a minimum of 2 photographs per slope)*
- Whether you are choosing the cash settlement option or the repair settlement option*
- What is the claims deadline? - Top
Claim Forms must be submitted no later than the later of the two following dates: June 20, 2013, that is 150 days after the Effective Date of the settlement (January 21, 2013) or 150 days after the Claimant’s discovery of the need for repairs or replacement and, in any event, no later than the expiry of the applicable warranty period and prior to the removal of the BP Organic Shingles from the home, residence, building or other structure upon which they were installed.
Notwithstanding the above, where a Claimant has previously filed a warranty claim with the Defendant and which warranty claim was denied, in whole or in part, after June 9, 2009, and the Claimant has replaced the BP Organic Shingles that were the subject of the denied warranty claim, the Claimant can file a Claim Form.
Unless and until you experience Damage to BP Organic Shingles (see No. 10 above), you should not file a Claim Form.
For more information, see the Claim Deadline page.
- What happens if I bought the building with BP Organic Shingles already installed? - Top
Provided you can meet the other eligibility requirements and have not assigned the right to file a claim to the previous owner, you can file a claim.
- What happens if I have previously filed a warranty claim with the Defendant? - Top
If you previously filed a warranty claim in relation to your damaged BP Organic Shingles and your warranty claim was accepted, you cannot claim under the settlement with respect to the same damaged BP Organic Shingles, but you can claim under the settlement with respect to other damaged BP Organic Shingles.
If you previously filed a warranty claim in relation to your damaged BP Organic Shingles and your warranty claim was rejected after June 9, 2009, you can resubmit a claim under the settlement. If your warranty claim was rejected before June 9, 2009, you cannot claim under the settlement with respect to the same BP Organic Shingles unless the condition of the shingles has worsened such that the condition now qualifies as damage to BP Organic Shingles as per the terms of the settlement (see No. 10 above). You can however claim with respect to BP Organic Shingles that were not the subject of the previously-filed warranty claim.
If you have an outstanding warranty claim, you do not need to file a Claim Form under the settlement. Your warranty claim will be adjudicated based on the terms of the settlement. However, if you wish to select the cash settlement option (see No. 14 above), you must advise BP in writing that you wish to do so.
- What happens if I file a claim under the settlement and I believe that my claim was improperly denied? - Top
If your claim has been denied, in whole or in part, or if you disagree with the Approved Repairs Amount and/or the proration of the Approved Repairs Amount, you can request a review of the Claim Decision by an independent third-party.
To request a review, you must properly complete the Request for Review Form and submit it no later than 35 days from the date of the Claim Decision. Request for Review Forms are available here.
- I completed the approved repairs and submitted related invoices and I believe that payment was improperly denied. What should I do? - Top
If payment has been denied, either because the invoices submitted do not relate to approved repairs and/or do not demonstrate that you used BP shingles, you can request a review by an independent third-party.
To request a review, you must properly complete the Repair Dispute Form and submit it no later than 15 days from the date of the notice received from BP regarding your repair invoices. Repair Dispute Forms are available here.
- How do I exclude myself or opt out of the settlement? - Top
The deadline for excluding yourself has passed.
If you excluded yourself, you are not eligible for compensation under the settlement. You keep any right to file or proceed with a lawsuit against the Defendant regarding damage to BP Organic Shingles.
If you did not exclude yourself, you can claim under the settlement, but cannot file or proceed with any claim you might have against the Defendant regarding damage to BP Organic Shingles.
- When and where will the Courts decide whether to approve the settlement? - Top
The Final Approval Hearing for the Canadian National Class was held on October 12, 2012. The Ontario Superior Court of Justice has approved the settlement. The settlement approval order is available here.
The Final Approval Hearing for the Quebec Class was held on September 21, 2012. The Superior Court of Québec has approved the settlement. The settlement approval order is available here.
The Final Approval Hearing for the U.S. Class will was held on December 12, 2012 at 10:00 a.m at US District Court, 204 Main Street, Room 201, Brattleboro, VT 05301. The settlement approval order is available here.
- Do I have a lawyer in the class action lawsuit? - Top
The following firms act on behalf of the plaintiffs and Class Members in the class action lawsuit. They are collectively referred to as “Class Counsel”. If you have any question regarding the settlement, you should contact the appropriate Class Counsel.
Counsel for Canadian Plaintiffs
Harrison Pensa LLP
450 Talbot Street
P.O. Box 3237
London, ON N6A 4K3
Toll free: 1-800-263-0489 ext.369
Counsel for Québec Plaintiffs
Lauzon Bélanger Lespérance Inc.
286 Saint-Paul West
Montréal (Québec) H2Y 2A3
Co-lead counsel for U.S. Plaintiffs
Charles J. LaDuca
Cuneo Gilbert & LaDuca, LLP
507 C Street, NE
Washington, DC 20002
Co-lead counsel for U.S. Plaintiffs
Audet & Partners, LLP
221 Main Street
San Francisco, CA 94105
Toll free: 1-800-965-1461
- How will these lawyers be paid? - Top
You will not be individually billed or charged for Class Counsel's work. Under the terms of the settlement, the Defendant has agreed to pay Class Counsel’s fees and expenses in an amount not to exceed Cdn $2,400,000.00. Class Counsel fees are subject to the approval of the Courts.
- How can I obtain more information about the settlement? - Top
A copy of the Settlement is available here. For additional information call toll-free 1-800-515-3626 or contact Class Counsel at the addresses listed above (see No. 23).
You should regularly visit this website for updates on the status of the litigation.