Mass Torts are Trending: What does this Mean for Access to Justice?

By David Balzer

At the end of 2022, Robin Linley of Blake, Cassels & Graydon observed a new legal trend in Ontario:  a “surge” of mass-tort claims and a decrease in new class actions, at least for product-liability claims. A mass tort is not quite a class action. Whereas a class action is a single lawsuit brought by a group of two or more individuals against the same defendant(s), a mass tort is a series of individual, coordinated lawsuits against the same defendant(s), often in response to an incident, such as a plane crash, giving rise to similar claims. In Canada, class actions are regulated by provincial legislation, while mass torts do not have comparable regulatory oversight.

Legal insiders had predicted the mass-tort trend since 2020, when the Ford government’s Smarter and Stronger Justice Act amended the Class Proceedings Act to include superiority and predominance requirements, effectively making it harder for a class action to get certified—that is, approved to proceed as a class action—in Ontario. With the new superiority requirement, plaintiffs must now show the court that a proposed class action is not just the preferable means of resolving the issue but superior to all other means of doing so. With predominance, it is no longer enough that common issues among class members advance the claim. Instead, the court must be convinced that these common issues predominate over any individual issues.

Learning from the U.S. Experience

Ontario’s amendments are undeniably inspired by class-action regulation in the U.S., where Rule 23(b)(3) of the U.S.’s Federal Rules of Civil Procedure contains stringent predominance and superiority requirements. However, as Ontario lawyer Michael Peerless notes, other U.S. rules lend balance to these restrictions. For example, U.S. class actions allow for partial certification, so a class’s common issues may still proceed to trial, despite the existence of varied individual claims. Nonetheless, these requirements are likely responsible for the prevalence of mass tort claims in the U.S.

The U.S. also regulates mass torts in ways that Canada doesn’t, and arguably can’t. Another recent piece on Ontario’s mass-tort trend, by Deborah Templer, Byron Shaw, and Daniel Moholia of McCarthy Tétrault, provides a useful breakdown of the differences. U.S. mass torts happen by way of so-called inventory litigation, a regulated type of claim distinct from class actions that proceeds via multidistrict litigation (MDL) in the Federal Court system. MDL has, among other things, an established process for test cases (so-called bellwether trials) in which certain individual plaintiffs carry their claim through the trial process to give both parties a sense of the general outcome they may expect, and thus a template for subsequent settlements.

Although mass torts are not impossible in Canada—the website for a current hernia-mesh mass tort touts its benefits over a class action—they cannot proceed with the same ease. Canada does not have anything like MDL, for instance. And, as Templer, Shaw, and Moholia note, Canada’s tort claims are largely heard by provincial superior courts, because the Canadian Federal Court is not designed like its U.S. counterpart. Further, any attempt to legislate a Canadian version of MDL could run into serious issues, given the powers bestowed on provinces by the constitution. As a result, the perseverance of mass torts in Canada will, in the words of Templer, Shaw, and Moholia, depend on the “skill, ingenuity, and creativity of counsel” and the availability of third-party funding to enable the claims.

Policy Implications of a Mass-Torts “Trend”

Another reason to be skeptical of a Canadian mass-torts trend is the access-to-justice issues it raises. Mass torts may suit some product liability claims, but what about litigants bringing, say, institutional abuse claims? The lack of regulation and clear precedent for Canadian mass torts may make them harder to navigate for such claimants. Consider that class actions make it possible for class members who do not opt out to have limited involvement in how the claim proceeds. Some marginalized claimants may not have the financial or emotional capacity to direct mass-tort litigation. Mass torts may also take longer to resolve than class actions. This, when the lengthy nature of class actions, typified by the recent Gottfriedson case, already presents access-to-justice problems.

Mass torts may also not be as effective as class actions at deterring wrongful behaviour, another policy objective of class actions alongside access to justice. As Craig Jones explains in his classic 1992 study Theory of Class Actions, notably cited by Perell J. in 2038724 Ontario Limited v. Quizno’s Canada Restaurant Corporation, 2010 ONSC 5390, a defendant in a mass tort has the advantage of reusing the litigation work product. Mass tort plaintiffs on the other hand, even with sufficient financial resources, must use more of their own time, energy, and fortitude—which can create structural asymmetry that favours defendants.

Dominey: No Alternative to Individual Claims?

In VLM v. Dominey, 2022 ABQB 299, an institutional-abuse case in Alberta involving a youth correctional facility, the claimants—among the first survivors in Alberta to take legal action after the provincial government lifted its time restrictions on filing sexual-abuse claims—were denied certification and are currently awaiting appeal. Although Alberta’s class-proceedings legislation is looser on predominance than Ontario’s, Henderson J. still determined that the claimants’ common issues did not predominate over individual ones. “For vulnerable prospective class members,” he wrote, “neither individual actions nor a class proceeding will be easy. Neither is a preferable procedure.” (at para 107).

However, Henderson J. went on to hold that any breach of duty to the claimants, by Alberta or by the Synod that also oversaw the facility, could not be determined through issues common to the class. In other words, the instances of sexual abuse among the claimants were, Henderson J. determined, too individual and varied for a class action. The claimants, trauma survivors dealing with many social challenges, disagree. For almost all of them, there will be no action if not a class action.

The courts in Canada have tended to confirm this view, deeming class actions expressly suited to institutional-abuse claims. One pivotal case is Cloud v. Canada (A.G), 2004 CanLII 45444 (ONCA), where a residential-school survivors’ claim was held to be preferable because the systemic nature of their issues made them sufficiently common. A class action on such issues would serve access to justice, and maximize judicial resources.

Rumley v. British Columbia, 2001 SCC 69 has also stood tall in Canadian class-actions law. As Jasminka Kalajdzic puts it in her book Class Actions in Canada, Rumley is a rare example of the Supreme Court interpreting “access barriers” to justice “in something other than economic terms.” The claimants in Rumley were survivors of institutional abuse at Jericho Hill School for the Deaf in Burnaby, BC. Kalajdzic compares the courts’ interpretations in Cloud and Rumley: because the claimants, as survivors, face ongoing social issues, a class action for them would enhance access to justice.

Henderson J.’s view of Rumley in the Dominey decision unsettles this interpretation. Henderson J. reminds us that Rumley was eventually decertified because of procedural difficulties, citing Slatter J. in TL v Alberta (Director of Child Welfare), 2006 ABQB 104, who proposes that, had the Chambers Judge in Rumley been given the chance to re-evaluate, they “would not have certified systemic negligence as a common issue” (at para 109). Perell J.’s recent citing of Dominey in Carcillo v. Canadian Hockey League, 2023 ONSC 886, another institutional-abuse case the courts have refused to certify, is a concerning affirmation.

A judicial fixation with predominance runs the risk of raising the certification bar beyond the reach of those who need class actions the most. And, in Canada, individual actions via mass torts are simply not an adequate recourse for such claimants. It is worth noting that there is a robust record of similar class-action cases after Rumley that can help address manageability concerns about individual claims that led to that case’s eventual decertification.[1]

Remembering the Statute

It is also worth noting that s. 6 of Ontario’s Class Proceedings Act may function to mitigate the limitations of the new predominance and superiority requirements. The section stipulates, for instance, that a court shall not refuse to certify a class action in which “relief claimed includes a claim for damages that would require individual assessment after determination of the common issues.” Alberta has similar stipulations in s. 8 of its Class Proceedings Act, recently affirmed as key to a preferability interpretation by Rooke ACJ in Robinson v Alberta, 2022 ABQB 497 (at para 86). It is a certifying judge’s duty not to ignore these provisions.

It is undoubtedly important to be vigilant about marginalized claimants’ ability to bring class actions under the current regulations, and to question available alternatives. Class actions are not perfect, but they are, now, time-honoured in Canada, with a firm basis in established law. This is precisely why the policy goals central to their procedural existence must be properly upheld. Legal trends may come and go, but the Canadian class action as an access-to-justice vehicle must not go out of style any time soon.

[1] See, for example, the following settlement approval decisions: Dolmage v. HMQ, 2013 ONSC 6686, Seed v Ontario, 2017 ONSC 3534, and Doucet v. The Royal Winnipeg Ballet 2022 ONSC 976.

What is Effective Notice? Examining Class Actions Notice and the Day Schools Settlement

By Joudy Sarraj

The Six Nations Grand River Council recently filed a motion asking the Federal Court to extend the claims deadline in the Federal Indian Day Schools and Federal Day Schools (“IDS”) settlement to December 31, 2025. The settlement agreement was reached in a class action concerning the systemic abuse suffered by generations of Indigenous children at day schools.

The motion record documents a myriad of issues: a short claims period; pandemic related disruptions; lack of transparency on the take-up rate; and insufficient assistance for survivors navigating the claims process — especially those required to demonstrate severity of harm to prove higher-level claims.

Problems with the design of the IDS claims process are well known. Previous blog posts discuss the claims administrator’s refusal to accommodate for progressive disclosure so that class members could change their applications to higher-level claims as they came to terms with traumatic experiences and felt more comfortable divulging details. Other class members could not get legal assistance to complete their claims or accurate information about the claims process.

The recent motion record shows that settlement notice is a key part of settlement design. Lack of effective notice in the IDS case created a real barrier between survivors and just access to their entitlements.

“The shortcomings of IDS settlement notice”

According to the Six Nations Council, the notice campaigns for the IDS settlement failed to include sufficient direct outreach, performance measurements, and culturally sensitive communications. Class counsel visited very few First Nations communities in person, and a pivot to online webinars and electronic communications during the pandemic was ill-suited to community needs. For example, class counsel allegedly made no effort to advise incarcerated IDS survivors about the claims process despite the over-representation of Indigenous populations amongst the incarcerated. Moreover, according to a 2017 study, only 24% of households in Indigenous communities have reliable access to high-speed internet.

Class counsel’s absence from the community effectively left the Six Nations Council with the responsibility of providing notice about the settlement, despite having no training or expertise in class actions. The Council conducted ad-hoc community outreach and would locate precariously housed survivors to deliver copies of the notice and claims form. The Council took the initiative to make arrangements to allow those without a permanent mailing address to use the Council office to receive communications from the claims administrator. The Council expected that the parties responsible for the implementation of the settlement agreement would provide effective notice, but class counsel and the claims administrator fell short.

What is the legal standard for appropriate settlement notice?

The Class Proceedings Act (CPA) provides some guidance on the means parties can use to give notice in section 17(4): personally, by mail, advertising, leafleting, individual notice, electronic means, and “any other means the court considers appropriate.”

Section 17(5) of the CPA describes the required contents of notice, including a description of the proceeding, potential financial consequences like the amount available to be claimed, a description of the rights of class members, a note about legal fees and disbursements, contact information for inquiries about the proceeding, and “any other information the court considers appropriate.”

In practice, these guidelines offer little objective guidance on how to draft and distribute good notice. The shape and form of effective notice vary significantly based on context. What is fair, reasonable, and in the best interest of the class will diverge in each class proceeding. Despite the necessity of such a situational analysis, however, it is possible to identify general principles of effective notice and to learn from past experience.

The Quebec Code of Civil Procedure for example, links the time, form and manner of publication requirements — as explained in the CPA — to the broader objective that notice reach class members “having regard to the nature of the class action, the composition of the class and the geographical location of its members.” While “reach” will look different in each case, a genuine effort to reach is essential. In other words, the way notice is designed, must make it likely that the information will reach the intended recipients.

Moreover, statistics and anecdotal evidence about previous notice plans can help inform future ones. In particular, counsel in IDS would have known that community outreach and clear, understandable information in IRSSA were integral to the effectiveness of that settlement.

The motion record demonstrates that the IDS notices and communication plan failed to reach many affected class members.

Reaching the hardest to reach

Interestingly, the Notice Plan in the IDS Settlement includes a “situational analysis” which acknowledges the following:

  • Former students are located throughout Canada on reserve, within Indigenous communities/settlements including northern communities, as well as within the general population. Those residing outside of an Indigenous community are located in both rural and urban areas.
  • The education level of the Class varies widely.
  • A small percentage of the Class is in correctional institutions or resides outside of Canada.
  • Languages appropriate for communicating with those affected include English, French, and five Indigenous languages.

Unfortunately, there is a gulf between the Notice Plan and its implementation. The Notice Plan identifies the very cultural and situational variables which actual notice failed to address. Recall, for instance, the lack of outreach to incarcerated class members, and the lack of access to web-based information.

Since notice is approved by the court as part of settlement approval, parties are judged with respect to their ability to identify such situational variables, but not necessarily on their ability to deliver effective notice. How can parties move beyond identifying and acknowledging the situational context of the class, to designing and delivering notice that is effective in this specific context? What remedies are available to class members once the Notice Plan has been approved, if the Notice Plan is deficient in its scope or implementation? These are questions for both the Federal Court to answer and the legal community to consider.

In its motion record, the Six Nations Council has stressed that an extension of the claims deadline alone, without appropriate notice and trauma-informed support, will not be a meaningful response to the barriers that necessitated an extension in the first place. A settlement that does not actually distribute benefits to a substantial number of class members cannot be fair. Effective notice is essential to transforming theoretical entitlements to real claims.