Les litiges délictuels de masse sont en hausse en Ontario, en raison des contestations de demandes d'autorisation d'actions collectives, des désaccords relatifs à la conduite d'instances qui se chevauchent et de l'influence des avocats des demandeurs. Ce n'est toutefois pas le cas dans toutes les provinces. Dans cet épisode de notre balado, les avocats de Blakes Robin Linley, Ariane Bisaillon et Robin Reinertson expliquent les différences entre un litige délictuel de masse et une action collective ainsi que les raisons pour lesquelles on préférera l'un par rapport à l'autre.
Transcript
Hi. I'm Jordan Virchew.
And I'm Nathan Kantter, and welcome to this episode of the Blake's Sound Business podcast.
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?
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.
That rings a bell, but let's learn more from our experts. Joining us today are Blake's lawyers Robin Lindley, Arianne Bisayon, and Robin Rainerson from our litigation and dispute resolution 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.
Robin Lendly, can you tell us what a mass tort is and the factors influencing a trend towards this type of litigation claim?
Jordan, I think basically a mass tort at the end of the day is plaintiff Council who instead elect to bring a series of individual actions. So instead of commencing one action, they're 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 Council 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 late of 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 pursue this model, them being the plaintiff's Council who traditionally work 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 many plaintiff councils 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 to be there and 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.
Ariane, is Quebec experiencing a similar trend?
The short answer is no. Product liability claims and other types of claim that would otherwise be tried as mess. Storts, or multidistrict litigation, and 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 growth in mass sports 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.
What do you think explains the lack of enthusiasm for mass torts in Quebec?
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, and 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 council who files first to proceed with a class action unless, certain exceptional circumstances are met.
And finally, our procedural rules are not well adapted to case managed mass torts, whereas the rules governing class actions and the existence of a group of ten judges who are, dedicated to case managed class actions make this procedural vehicle more appealing to plaintiffs Council.
Robin Raynardson, what are you seeing in British Columbia?
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 BC. Also, the types of cases that are being brought don't really lend themselves to a mass tort strategy. Often, plaintiff's council 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 plaintiff's counsel to find claimants or class members in advance. On the flip side, it's relatively straightforward to take a case to a certification application.
It's primarily a procedural inquiry. It's not a preliminary merit test, and it can be much more costly in terms of lawyer time and disbursements for a plaintiff's firm to invest working up ten or twenty or thirty 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 plaintiff's Council as opposed to in Ontario.
Why do you think there's a continued focus on class actions versus mass torts in BC?
Most product liability claims are still being brought as class actions in BC. It remains the dominant model in this province, and we have seen a significant number of product liability class actions filed in BC in recent years. Interestingly, where we do see a large number of individual cases, filed regarding the same product, it is often Ontario plaintiff's Council that have filed those cases in BC as part of a national mass tort strategy.
Robin Lindley, 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?
Nathan, it definitely can be a a challenge. Council 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 plaintiff's counsel to find ways that are going to serve both parties interests while still maintaining, obviously, the defense of the case.
One thing we are seeing a little bit is 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, it would only be something you would want to do if the relationship between you and plaintiff's counsel has entirely broken down such that you need the assistance of the court.
I also often engage local council as many of these cases are being governed by local rules and other provinces and your ability to manage those actions will require a familiarity and comfort with with the rules of those, other jurisdictions.
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 Lendly, let's start with you.
Yeah. I'm very interested in Ari Ann and Robin's views on this, but, you know, as I'm seeing an increase in the individual you know, 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 BC 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 and how defense 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 singular strategy and and what we ultimately need to do is a knock firms 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.
Arianne, what are your thoughts?
I have to say I agree with Robin. I think one issue that is always, front of mind when address those multiple parallel claims is sequencing.
And on that I will say, that anyone who's been involved in 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 Council and a very United Defense team is paramount to ensure the best defense strategy and to ensure that we make the best use of our resources.
Robin Raynardson?
Coordination coordination coordination. I don't wanna 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 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 so be used in different provinces, and, the rules of a stopel can apply asymmetrically to the detriment of defendant but not to the detriment to 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.
Robin Lendly, Ariane Bessayon, and Robin Raynardson.
Thank you for taking the time to join us today.
We hope our listeners have learned as much as we have, For more on this topic and our podcast, please visit blake's dot com.
Until next time. Keep well.
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