Jordan: Hi, I’m Jordan Virtue.
Nathan: And I’m Nathan Kanter, and welcome to this episode of the Blakes Sound Business podcast.
Jordan: Nathan, we’re hearing more and more about mass torts and how they’re on the rise in Ontario but not so much in other provinces. Any idea why some plaintiffs’ firms prefer this alternative to the traditional class action?
Nathan: Hmm. I think it may have something to do with class actions being seen as more difficult to certify in Ontario, but I’m sure there’s more to it.
Jordan: That rings a bell. But let’s learn more from our experts. Joining us today are Blakes lawyers Robin Linley, Ariane Bisaillon and Robin Reinertson from our Litigation & Dispute Resolution group. They’re here to tell us more about mass torts, their rise in popularity in Ontario and why class actions remain the preferred choice in other provinces.
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Jordan: Robin Linley, can you tell us what a mass tort is and the factors influencing a trend towards this type of litigation claim?
Robin L.: Jordan, I think, basically, a mass tort, at the end of the day, is plaintiffs’ counsel who instead elect to bring a series of individual actions. So, instead of commencing one action, they are commencing anywhere from five to maybe a hundred different cases, all involving the same or similar products, often against the same manufacturer in the context of a product liability claim.
Plaintiffs’ counsel, in Ontario at least, would push you in the direction of focusing on the changes to the class action regime here, in particular the recent legislative changes, which are perceived to have made it more difficult for cases to be certified in Ontario and has resulted in many of them choosing to pursue this model — “them” being the plaintiffs’ counsel who traditionally worked in the area of class proceedings.
The other factors, I think, are carriage fights. Those are often time consuming and expensive and will delay actions for considerable periods of time. The other one is many plaintiffs’ counsels assume that if they bring these individual actions, they are, in effect, kind of guaranteeing themselves a seat at the settlement table. If you have a series of individual cases, on the assumption that the company may ultimately settle the cases, that they’ll be able to be there and be part of that discussion.
Typically, class actions do not have significant regard to the individual class members when it comes to assessing the value of those claims. Instead, settlement occurs on a class-wide basis, whereas on an individual inventory basis, you’re able to look at each of the individual plaintiffs and assess the case.
Nathan: Arianne, is Quebec experiencing a similar trend?
Arianne: The short answer is no. Product liability claims and other types of claims that would otherwise be tried as mass torts or multidistrict litigation in other jurisdictions continue to be tried as class actions in Quebec, or at least for the purposes of the authorization process, which is our equivalent of certification.
One area that may be open to a growth in mass torts in Quebec would be claims relating to sexual assaults because there have been cases in Quebec where courts have blocked sexual assault class actions due to the lack of commonality. So, that’s maybe an area where there would be an opening for this type of claim.
Nathan: What do you think explains the lack of enthusiasm for mass torts in Quebec?
Arianne: I would say there are perhaps three factors that explain this lack of enthusiasm.
First is, unlike what Robin has described in Ontario, Quebec courts have adopted a very liberal approach when looking at the commonality requirement at the authorization stage, and so, one common issue suffices to authorize a class action as long as it’s not insignificant. And it doesn’t even require a common answer, which means that a class may not meet the commonality requirement in other jurisdictions but could be authorized to proceed as a class action in Quebec.
Then, the second factor is, unlike what Robin described, we don’t have any carriage fights in Quebec. Instead, we have the “first to file” rule, which allows the counsel who files first to proceed with the class action unless certain exceptional circumstances are met.
And finally, our procedural rules are not well adapted to case manage mass torts, whereas the rules governing class actions and the existence of a group of 10 judges who are dedicated to case manage class actions make this procedural vehicle more appealing to plaintiffs’ counsel.
Jordan: Robin Reinertson, what are you seeing in British Columbia?
Robin R.: It’s complex, but in my view, there are a number of drivers. First, and this is similar to Quebec, the certification threshold is lower in B.C. Also, the types of cases that are being brought, don’t really lend themselves to a mass tort strategy. Often, plaintiffs’ counsel are commencing cases where they’re trying to recover for a risk of harm as opposed to having any substantial injury, and so, it’s not cost-effective to bring those as individual actions.
It can also relate to the need to gather claimants or potential class members. We’ve seen that, in some cases, it’s been hard for plaintiffs’ counsel to find claimants or class members in advance.
On the flipside, it’s relatively straightforward to take a case to a certification application. It’s primarily a procedural inquiry — it’s not a preliminary merits test — and it can be much more costly in terms of lawyer time and disbursements for a plaintiff’s firm to invest working up 10 or 20 or 30 individual cases.
Finally, I don’t think that we can overlook the role of the “no cost” regime in B.C. It continues to be one of the few national no-cost jurisdictions for class actions, and so, I think that filing a proposed class action is really seen as low risk or no risk to some plaintiffs’ counsel as opposed to in Ontario.
Jordan: Why do you think there’s a continued focus on class actions versus mass torts in B.C.?
Robin R.: Most product liability claims are still being brought as class actions in B.C. It remains the dominant model in this province, and we have seen a significant number of product liability class actions filed in B.C. in recent years. Interestingly, where we do see a large number of individual cases filed regarding the same product, it is often Ontario plaintiffs’ counsel that have filed those cases in B.C. as part of a national mass-tort strategy.
Nathan: Robin Linley, it must be a challenge to manage multiple individual claims issued in multiple provinces. Can you give us some insight into how this is done?
Robin L.: Nathan, it definitely can be a challenge. Counsel facing a mass tort, potentially with claims across the country, have a few, you know, options available to them in terms of management. But all of them require a fair amount of cooperation with plaintiffs’ counsel to find ways that are going to serve both parties’ interests while still maintaining obviously the defence of the case.
One thing we are seeing a little bit is resort to case management. Now, you cannot do that nationally, but you can do that potentially at a provincial level. I think case management needs to be looked at very carefully as to whether or not it’s appropriate and, in my view, would only be something you would want to do if the relationship between you and plaintiffs’ counsel has entirely broken down, such that you need the assistance of the court.
I also often engage local counsel, as many of these cases are being governed by local rules in other provinces, and your ability to manage those actions will require familiarity and comfort with the rules of those other jurisdictions.
Jordan: The final question goes to all three of you. What strategic factors do you consider when managing national litigation involving both individual tort claims and class actions? Robin Linley, let’s start with you.
Robin L.: Yeah, I’m very interested in Arianne and Robin’s views on this, but, you know, I’m seeing an increase in the individual actions in Ontario that are being brought by way of mass tort. It’s not unusual to increasingly see national class actions being commenced at the same time in B.C. and Quebec, and it’s absolutely imperative when dealing with these kinds of actions to have a team that can respond nationally and to ensure that, you know, all provinces are being managed in a similar way.
There’s going to be complex questions that are inevitably going to arise in terms of timing issues around the class action versus the individual actions and how defence counsel will ultimately use their resources to defend the cases and what strategies and skills are brought to bear in each province, depending on the state of the action and where it’s at, at a given point in time. It’s candidly quite hard, I think, to sort of prescribe a similar strategy, and what we ultimately need to do as a national firm is remain alive to whatever issues may be arising in each of the jurisdictions when we’re dealing with competing class actions and mass tort claims.
Jordan: Arianne, what are you thoughts?
Arianne: I have to say, I agree with Robin. I think one issue that is always front of mind when we address those multiple parallel claims is sequencing. And on that, I will say that anyone who’s been involved in this type of matter will know that Quebec tends to move fast, and there’s limited means available to control timing in Quebec, but there are certain procedural ways to avoid defending on multiple fronts and proceed before the court with the most expertise to address those complex scientific claims, and stays are one of those.
But coordination between counsel and a very united defence team is paramount to ensure the best defence strategy and to ensure that we make the best use of our resources.
Jordan: Robin Reinertson?
Robin R.: Coordination, coordination, coordination. I don’t want to sound like a broken record and say exactly what Arianne and Robin have already said, but it cannot be reiterated enough that making sure you’re thinking about the implications of each case within your own jurisdiction and nationally or internationally is really important.
In cases where you have a mass tort and a class action, there are going to be interprovincial elements. And one thing to keep in mind is that not only the procedural decisions but the substantive decisions can also be used in different provinces, and the rules of estoppel can apply asymmetrically to the detriment of defendants but not to the detriment of plaintiffs.
And so, it’s really important that you have counsel that are experienced with these issues and thinking about all of the different permutations and even, possibly, how you might use the individual actions to your benefit on a certification application.
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Jordan: Robin Linley, Ariane Bisaillon and Robin Reinertson, thank you for taking the time to join us today. We hope our listeners have learned as much as we have.
Nathan: For more on this topic and our podcast, please visit blakes.com.
Jordan: Until next time, keep well!
