► Because of the relative complexity of this topic, we've set this legal information over two pages. This is page 1. Page 2 includes not just the second and concluding part but also the references, which appear at the end of Page 2.

What Is It?

Class action law suits, also known as class proceedings, are defined as;

"... when different persons combine their lawsuits into one opposed to a common defendant, because the facts are sufficiently similar."1

In the Report of the Attorney General’s Advisory Committee on Class Action Reform (1990), a class action was defined (as):

"... an action brought on behalf of, or for the benefit of numerous persons having a common interest ....

"... a procedural mechanism that is intended to provide an efficient means to achieve redress for widespread harm or injury by allowing one or more persons to bring the action on behalf of the many."

Class actionNo other area of the law holds as much promise to the citizenry as without class actions, bona fide law suits against deep pocket defendants would be all but impossible as no lawyer or law firm would risk their financial necks on a long hard-fought trial where, as is often the case, the very reputation of the defendant is at stake.

But so too, in many class action suits, is the suggested negligence of the defendant in putting out there a product or service that kills or harms unsuspecting consumers.

Canada's largest class action litigation as of 2013 was Nora Bernard's law suit against Canadian churches and government for abuse against some 70,000 survivors of residential schools, settled in 2005 for $5-billion. That case was managed by lawyer John McKiggan of Halifax who later wrote:

"It took Nora twelve years to achieve her goal. It was not an easy fight and her role representing survivors often took a toll on her health. Sometimes it looked like the fight for survivors couldn't be won. But Nora never gave up."

The incidence of brain tumours in cellphone users ... pharmaceutical product that are insufficiently tested before being released .... the needless rate of speed built into every road vehicle ... the spam we all receive ... harmful or unlawful privacy breaches or unfair competition by mega-corporatins such as Google or Facebook .... are examples of potential class action litigation that attract the attention of the very few law firms in Canada that can afford the expensive trek to judgment against a deep pocket defendant that most class action law suits involve.

class action memeChief Justice B. McLachlin wrote these immortal words in Western Canadian Shopping Centre v Dutton:

"The class action plays an important role in today’s world. The rise of mass production, the diversification of corporate ownership, the advent of the mega-corporation, and the recognition of environmental wrongs have all contributed to its growth. A faulty product may be sold to numerous consumers.... The class action offers a means of efficiently resolving such disputes in a manner that is fair to all parties.

"... by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. The efficiencies thus generated free judicial resources that can be directed at resolving other conflicts, and can also reduce the costs of litigation both for plaintiffs (who can share litigation costs) and for defendants (who need litigate the disputed issue only once, rather than numerous times)....

"Without class actions, those who cause widespread but individually minimal harm might not take into account the full costs of their conduct, because for any one plaintiff the expense of bringing suit would far exceed the likely recovery. Cost-sharing decreases the expense of pursuing legal recourse and accordingly deters potential defendants who might otherwise assume that minor wrongs would not result in litigation."

Pre-class action statutes, most Canadian provinces had a rule similar to this, former Supreme Court of Ontario Rule 75, which is the common law genesis of class actions in Canada:

"Where there are numerous persons having the same interest, one or more may sue or be sued or may be authorized by the Court to defend on behalf of, or for the benefit, of all."

This differed little, if at all in substance, from the Alberta ABQB Rule 42 of same import:

"When numerous persons have a common interest in the subject of an intended action, one or more of those persons may sue or be sued or may be authorized by the Court to defend on behalf of or for the benefit of all."

This rule was the itself subject of litigation and the Ontario Court of Appeal wrote (though judgment later overturned by the Supreme Court of Canada, not on this point):

"... for a representative action to be properly formed, there must be a “common interest” of the named plaintiff and those he claims to represent. If he wins, all win, because all have been injured as members of the class, and there is no separate defence available against some members of the class and not others."

The Supreme Court of Canada suggested reform in this area - dedicated class action statutes - and each province went off on its own and did its own thing. Unfortunately, there was no concerted national effort.

But still, considerable hope, as was articulated by Justice Macpherson of the Ontario Court of Appeal in Carom v Bre-X, borrowing extensively from recent law reform papers:

"Disasters spawn litigation. Trains collide or derail, planes crash, ships sink, lakes and rivers become polluted, chemical factories explode, ordinary people eat, drink, wear or use unhealthy or defective products. People – sometimes hundreds, even thousands – are injured or killed by these events. When the crisis subsides, some of the victims turn to the courts for redress and compensation.

"One of the modern mechanisms for dealing with the litigation fallout from major disasters is the class action. In Ontario, this type of action is regulated in a detailed fashion by a relatively recent statute, the Class Proceedings Act, 1992....

"(O)ne of the principal procedural goals of class actions is stated explicitly, namely litigation efficiency. This goal is sometimes framed with different terminology – judicial economy. The underlying objective of either formulation is the same, namely to find a mechanism to enable the court system to deal efficiently with a large number of claims being made by many aggrieved persons who have all suffered injuries from the same event or product.

"There is, however, a second fundamental procedural goal of class actions. It is to encourage access by victims to the court system. ... (M)any claims are not individually litigated, not because they are lacking in merit or unimportant to the potential claimant, but because of economic, social, and psychological barriers. We believe that class actions can help to overcome such barriers and, by providing increased access to the courts, may perform an important function in society. Quite clearly, effective access to justice is a precondition to the exercise of all other legal rights."

Still, there is a significant institutional problem with class action litigation, despite all its promise. As the authors of Class Actions Law and Practice write:

"Class actions are often large and complex lawsuits. Their successful management has been considered a Herculean task. The uncertainty involved in conducing such an undertaking will cause defendants to argue and may cause courts to fear that class actions will become monsters of complexity and cost."

The Weather Report: Storm Clouds

In Canada, circa 2013, the multiplicity of discordant provincial court rules makes it difficult to obtain a truly valid judgment nationwide. The nexus of the problem is to get courts in one province to recognize another's class action decisions, so that independent proceedings in every province was not necessary, especially on the critical first step of certification.

In August of 2011, the Canadian Bar Association set up a task force to lead reform on a national level. But the state of the union words from the CBA's are ominous:

"Actions that are national and multi-jurisdictional in scope are becoming the new norm for class proceedings in Canada. As several superior courts are now willing or able to certify national classes, it is inevitable that overlapping proceedings will be commenced purporting to address the same claim on an opt-out basis. Provincial legislation is currently ill-equipped to address the jurisdictional problems and inefficiencies created by national and multi-jurisdictional class actions. As carriage motions and jurisdictional disputes in national class actions become more numerous, failure to resolve the issues of duplicative and competing class actions will result in the continued waste of resources for plaintiffs, defendants, and the courts alike. The end result would be decreased access to justice for all, as well as more time spent on tactical manoeuvring rather than on a substantive consideration of the underlying merits of the claims."

Canada, like other countries before it, will have to come to a national consensus on these issues if class acctions are to thrive in this country as a fair and judicially efficient way to resolve qualified disputes.

Continued

Continued on page 2. This is the end of page 1 of Duhaime.org's 2-page article Class Action Litigation: The Legal Primer. References are at the bottom of the second page. Click here to go to Page 2.