Documentation:Torts/Class actions

TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index

Class actions
A class action is a type of lawsuit commenced by one or more plaintiffs on behalf of a larger group of people, all of whom claim the defendant caused them the same type of loss. Plaintiffs may find it beneficial to sue in the form of a class action because it allows those who have suffered similar harms to put forward a united claim and hold a larger entity, such as the government, accountable. A class action suit also helps promote access to justice, improve judicial efficiency, and incentivize defendants to modify their behaviour.

Possible disadvantages of a class action may include the lengthy process, sometimes exorbitant legal fees, and the inability to tailor the claim to individual circumstances.

History of class action lawsuits

Class actions are a relatively new type of procedure in Canada. Quebec was the first province to introduce class action proceedings via its Rules of Civil Procedures statute in 1978. It was followed by Ontario, which introduced the Class Actions Proceedings Act in 1992, and then came British Columbia with the Class Proceedings Act in 1995. Prince Edward Island was the last province to enact class action legislation when its Class Proceedings Act received royal assent in 2021. The Act came after the P.E.I Court of Appeal in King & Dawson v. Government of P.E.I. stated that P.E.I residents ought to have better access to justice through "a modern comprehensive legislative scheme in which to litigate their claims." Prior to having this legislation, P.E.I had relied on the common law regime established in Western Canadian Shopping Centres Inc. v. Dutton for class action certification.

The past decade has brought an increased number of class actions across Canada, especially as the number of plaintiffs' lawyers specializing in class actions has also grown and developed more experience and coordination with others in the field.

Stages of a class action

Certification

In Canada, a class action lawsuit must be certified (i.e. authorized) by a judge before it is allowed to proceed. Certification is a procedural step that does not determine the merits of the case or give rise to new causes of action. As required by the Federal Court Rules (and similarly by provincial class action statutes), a class action may only be certified if a judge is satisfied that it meets five criteria:

1. the pleadings disclose a reasonable cause of action;
2. there is an identifiable class of two or more persons;
3. the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
4. a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
5. there is a representative plaintiff or applicant who

   • would fairly and adequately represent the interests of the class,
   • has prepared a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members as to how the proceeding is progressing,
   • does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and
   • provides a summary of any agreements respecting fees and disbursements between the representative plaintiff or applicant and the solicitor of record.

Class actions in Canada
In this episode of Disputed by Norton Rose Fulbright, the hosts discuss recent class action trends as well as certification requirements across provinces.

In determining whether there is a reasonable cause of action, the court presumes the facts alleged in the statement of claim to be true without considering any evidence. The test is whether it is "plain and obvious" that the plaintiff's pleadings, assuming the facts to be true, disclose no reasonable cause of action.

To fulfill the latter four criteria, the plaintiff must show "some basis in fact" that those requirements have been met. The evidentiary threshold here is lower than the balance of probabilities because it has been deemed inappropriate to attempt to resolve conflicts in evidence at the certification step. Such conflicts are saved for trial instead.

Common issues trial

After a class action receives certification, it moves on to the common issues trial. This is where a judge addresses the issues that are common to all class members. Procedurally, a common issues trial is similar to that of an individual action, and the decision is binding on all members of the class. At the common issues trial, a judge may award aggregate damages on a class-wide basis. Aggregate damages can be described as "a form of rough justice" and promotes judicial economy.

An award of aggregate damages generally requires three provincial legislative criteria to be met: 1) a claim for monetary relief; 2) no questions of law or fact remain to be determined to establish the defendant's liability; and 3) the defendant's liability can be determined without proof by individual class members. While the first requirement is relatively easy to meet, the second and third requirements are more burdensome.

Aggregate damages in British Columbia
Class Proceedings Act, RSBC 1996, c 50, s 29(1).
Aggregate awards of monetary relief 29(1) The court may make an order for an aggregate monetary award in respect of all or any part of a defendant's liability to class members and may give judgment accordingly if (a) monetary relief is claimed on behalf of some or all class members, (b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant's monetary liability, and (c) the aggregate or a part of the defendant's liability to some or all class members can reasonably be determined without proof by individual class members.

Individual issues trial

Often times, a common issues trial may not resolve all aspects of class members' claims. Individual trials may be needed to address remaining issues for individual members and to determine the amount of damages owed to them. Pursuant to legislation, a court may also choose to resolve individual issues by appointing someone to conduct an inquiry into those issues and report back to the court, or by some other method as consented to by the parties.

Settlement

In the news
BC judge approves $14.4 million iPhone settlement
A BC Supreme Court judge has approved a settlement of up to $14.4 million for a class action suit in which plaintiffs alleged that Apple deliberately provided software updates that slowed down older iPhones. This video shares further details on the judgment.

Under provincial class proceedings legislation, a class action settlement is not binding without court approval. The court must find that the settlement agreement is fair, reasonable, and in the best interests of the class. In determining the appropriateness of a settlement agreement, the court recognizes that the settlement need not be perfect. As stated by the Ontario Superior Court, "[f]airness is not a standard of perfection" and "[r]easonableness allows for a range of possible resolutions."

In Dabbs v. Sun Life Assurance Co. of Canada, the Ontario Court (General Division) laid out 12 non-exhaustive factors that can help guide the assessment of a settlement's reasonableness:

1. the likelihood of recovery or likelihood of success;
2. the amount and nature of discovery, evidence or investigation;
3. the proposed settlement terms and conditions;
4. the recommendation and experience of counsel;
5. the future expense and likely duration of litigation;
6. the recommendation of neutral parties, if any;
7. the number of objectors and nature of objections;
8. the presence of arms-length bargaining and the absence of collusion;
9. the information conveying to the court the dynamics of, and the positions taken by
10. the parties during the negotiations; and
11. the degree and nature of communications by counsel and the representative
12. plaintiff with class members during the litigation.

For example, the Ontario Superior Court in Brown v. Canada approved a settlement agreement for a lawsuit brought against Canada by Indigenous Sixties Scoop victims. Although the amount agreed upon was a modest sum, the Court found that the settlement was reasonable considering the obstacles that the plaintiffs would face in litigation.

Termination by settlement
Class Proceedings Act, RSBC 1996, c 50, s 35(1)-(3).
Settlement, discontinuance, abandonment and dismissal 35(1) A class proceeding may be settled, discontinued or abandoned only (a) with the approval of the court, and (b)on the terms the court considers appropriate. (2) A settlement may be concluded in relation to the common issues affecting a subclass only (a) with the approval of the court, and (b) on the terms the court considers appropriate. (3) A settlement under this section is not binding unless approved by the court.

After a case concludes by settlement (or by judgment), class members will receive notice that the claims period is open. The notice will also provide information on the steps that class members must take to submit their claims and the documentation they must produce.

Class action statutes

Class action statutes
Federal: Federal Courts Rules, SOR/98-106.
Alberta: Class Proceedings Act, SA 2003, c C-16.5.
British Columbia: Class Proceedings Act, RSBC 1996, c 50.
Manitoba: Class Proceedings Act, CCSM c C130.
New Brunswick: Class Proceedings Act, RSNB 2011, c 125.
Newfoundland and Labrador: Class Actions Act, SNL 2001, c C-18.1.
Nova Scotia: Class Proceedings Act, SNS 2007, c 28.
Ontario: Class Proceedings Act, 1992, SO 1992, c 6.
Prince Edward Island: Class Proceedings Act, SPEI 2021, c 30.
Quebec: Code of Civil Procedure, CQLR c C-25.01; Act respecting the Fonds d'aide aux actions collectives, CQLR c F-3.2.0.1.1.
Saskatchewan: The Class Actions Act, SS 2001, c C-12.01.

Since the 2001 Supreme Court of Canada judgment in Western Canadian Shopping Centres Inc. v. Dutton, even provinces that did not yet have class action legislation, such as Prince Edward Island, could depend on common law principles for class action certification. However, now all provinces in Canada have their own legislation governing class action proceedings, while part 5.1 of the Federal Court Rules addresses class actions that come before the Federal Court of Canada. Although there are variations between provincial statutes, they still tend to follow a standard set of rules. The three territories do not have official legislation but class actions may still be commenced in those jurisdictions based on the common law regime as established in Western Canadian Shopping Centres Inc.

The majority of class actions start at the level of provincial Superior Courts, and only certain categories of claims fall under the Federal Court's jurisdiction. Class actions heard by the Federal Court typically pertain to competition claims and claims against the federal government.

American multidistrict litigation system

Multidistrict litigation system
In this video, attorneys from Searcy Law discuss the intricacies of the American multidistrict litigation system.

Unlike Canada, the United States has a multidistrict litigation system. The system is meant to efficiently coordinate similar cases that are pending in various districts across the country. The cases may be transferred by the US Judicial Panel on Multidistrict Litigation to a single district for consolidated pretrial proceedings. As well, the system allows plaintiffs' counsel to advance many similar cases in parallel, such as mass torts cases. Doing so means that complex cases that would be individually costly become more economically feasible. Because Canada does not have a procedure akin to the multidistrict litigation system, class action suits are more common than mass torts cases.

Discussion questions

• What is the purpose of class certification? How does it differ from the procedural steps involved in bringing an individual tort action?
• As the Court states in Canada v. Greenwood, where the pleadings disclose a reasonable cause of action, plaintiffs must show “some basis in fact” to meet the latter four criteria of certification. What is the rationale for this low evidentiary threshold?
• How is the multidistrict litigation system in the United States similar to class action proceedings? How is it different? In what circumstances would one be preferable over the other?