 |
| Steve Rastin |
 |
| Jordan Assaraf |
There are costs above and beyond a lawyer’s fee in an individual personal injury claim that can add up, and the situation is reaching the point where people cannot afford to hire legal counsel. There was a time that $50,000 cases were viable. But now, you may have to spend $30,000 to get to trial, so it may not be worth it. An individual may not be able to hire their own lawyer in those cases.
The writing is on the wall. In five or 10 years, motor vehicle claims will represent an insignificant part of the litigation experience in Ontario. We have already reached the point where the vast majority of people, in the vast majority of cases, do not have access to justice. Motor vehicle claims will likely cease to be the bread-and-butter of many firms, so it only makes sense to diversify.
We see an increasing move to class action lawsuits while mass torts have quickly developed as a reasonable and effective litigation alternative. There is an evolution going on between the two. Class action lawsuits may have been the preferred route, but the mass tort is gaining further acceptance. However, choosing which option is the right fit is becoming more complicated by the day. A lawyer must consider practical difficulties and practical questions before deciding which path to take.
At Gluckstein Lawyers, it has become apparent as we work through files such as the Ukraine International Airlines Flight 752 tragedy of the need to tailor litigation to the circumstances. It is a matter of maximizing damages per individual plaintiff in every case. Some may be entitled to larger settlements than others in a mass claim.
Mass torts and class actions offer the advantage of strength in numbers. Plaintiffs may be entitled to damages in a legitimate claim, but if they are going up against a big entity with many resources at their disposal, it may not be worth the time, money and effort it takes to bring the case to trial.
In a class action, civil claims can be brought by one or more people on behalf of a larger group. Rather than having each individual sue a defendant, the class can band together under a representative claimant to launch the suit. It levels the legal playing field when taking on a large organization.
While they can be effective, recent legislation by the Ontario government has made it more challenging to certify cases and get lawyers’ costs. For now, many class action cases are being filed in Quebec and British Columbia.
Class action cases also tend to be won or lost at the certification level. At that stage, the court has to decide if there is enough in common with the cases that it makes sense to try them all together. If certification is granted, these cases tend to resolve. Otherwise, the claim may hit the proverbial brick wall.
There is also the matter of funding. Many assume that the individual class participants in a class action face no financial risk. However, Brazeau v. Canada (Attorney General) 2021 ONSC 8158 released last month indicates that is not necessarily true. Essentially, this Ontario Superior Court decision said that if a case goes to an individual trial, the Class Proceedings Fund is no longer funding that. If someone loses their individual trial on damages, they will be on the hook for any adverse costs. This ruling further complicates any decision on the most effective and efficient way to proceed.
There is a strong argument that proceeding by way of mass tort will provide more equitable settlements for the individual litigants that we represent. Mass torts offer an advantage over class actions in that certification, which can be a time-consuming if not costly endeavour, is not necessary, and cases can move along quicker.
The tort originated largely in the United States and is nothing more than a group — often a large group — of lawsuits that are brought separately but which usually consider a similar fact situation.
What has happened in the U.S., and what is likely coming to Canada, is a system whereby a group of lawyers chosen to steer the actions through the courts selects a number of representative actions to take to trial. The remaining cases are then resolved using the trial results as guidelines.
Proceeding by mass tort is very similar to any personal injury case we have run in the past. It is just on a larger scale. It is not without its challenges, especially when working with multiple firms. But if everyone leaves their egos at the door and decides to work as a group, that benefits the clients. You may have different theories from different people, but that can also be helpful. Ultimately, if liability is the same, it is better to operate as a team.
There is no doubt mass torts and class actions will play a more significant role in personal injury litigation. And for a good reason. They offer consumer protection, allowing people who might not have the wherewithal to take on these big organizations or corporations to seek justice.
Steve Rastin is senior counsel and lawyer at Rastin Gluckstein Lawyers. His practice focuses on civil litigation, with a focus on personal injury, employment law and mass tort/class action. Jordan Assaraf was called to the bar in 2013 and assumed his current position of associate lawyer at Gluckstein Lawyers. Assaraf’s practice is devoted to all areas of personal injury litigation on behalf of plaintiffs, including product liability claims, class actions and motor vehicle accident claims.
Photo credit / undefined undefined ISTOCKPHOTO.COM
Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.