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.
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.