Mass Tort vs Class Action Lawsuits

A recent article in Canadian Lawyer magazine asked whether Canadian personal injury law firms should maintain ‘the traditional class action approach in Canada or … move towards more of an American model.’ At a time when our law firm is pursuing multiple class action lawsuits against long-term care owners, operators, and facilities that have been negligent amid COVID-19, this question appears particularly pertinent. In this article, we will review the differences between class action and mass tort lawsuits, the benefits of each, and the how the Canadian and American systems differ.

What are Class Action Lawsuits?

A class action lawsuit is one in which one or more plaintiffs – referred to as the class representative or representatives – bring a claim against a defendant in hopes of representing other plaintiffs who suffered similar damages at the hands of the same defendant.

This process is designed to create a level playing field between plaintiffs and large companies or corporations. It also lets individuals who may not be able to afford a lawyer pursue compensation, and creates a more streamlined process than if each individual plaintiff were to file their claims individually.

There are downsides to class action lawsuits, however. For example, proposed class actions must reach certain requirements in order to be certified by the courts. The commonality requirement, for example, mandates that the plaintiffs’ damages must be similar, so if a large group of prospective plaintiffs suffered a variety of injuries at the hands of a common defendant, they may not be able to pursue a class action claim. Recently, changes to Ontario’s Class Proceedings Act brought in the predominance and superiority requirements, as well; more on that a little later.

Once the requirements are met and the proceeding is certified, individual plaintiffs are lumped into a monolithic ‘class,’ meaning the compensation they receive will be divided equally, not according to who was most injured.

What are Mass Tort Lawsuits?

Like class actions, mass tort lawsuits involve numerous plaintiffs taking legal action against a single defendant, generally a large company or organization. In mass torts, however, plaintiffs are treated as a group of individuals rather than as a class. Each individual must prove certain facts about their claim, and the compensation they receive will be based on the damages they incurred. 

The main downside to mass torts is that they are extremely complex. Whereas class action lawsuits seek compensation for identical or similar damages, resolving a mass tort lawsuit requires assigning compensation to each plaintiff depending on the severity of their injuries. Resolving a mass tort can take longer than resolving a class action, but the reward for the most seriously injured plaintiffs may be worth the wait.

Changes to the Class Proceedings Act

As mentioned above, Ontario recently added two new requirements – predominance and superiority – that proposed class actions must meet in order to be certified.

According to Law Times, the predominance requirement states that plaintiffs ‘will have to show that questions of fact or law common to the class predominate over questions affecting individual class members,’ and the superiority requirement means ‘plaintiffs must show that a class proceeding is superior to all other reasonably available options for solving the dispute.’

Both new requirements make it more difficult for a class action to be certified, which prompted the question posed in the Canadian Lawyer article.

Traditional Class Actions vs US-Style Mass Torts

While class actions have traditionally been the preferred vehicle for launching mass claims in Canada, Americans have more often relied on mass torts. According to Canadian Lawyer, this is due in part to the fact that American consumers are essentially not allowed to pursue claims against medical device makers or drug companies via class actions.

With the recent addition of the predominance and superiority requirements, however, some lawyers believe mass torts may gain prominence.

“It will be interesting to see what comes of that change and whether or not the class action will remain the preferred proceeding in Canada over some kind of mass tort proceeding,” one lawyer told Canadian Lawyer.

Contact Will Davidson LLP

The lawyers at Will Davidson LLP have represented clients in class action and mass tort proceedings for decades. The recent lawsuits we initiated against long-term care providers are excellent examples of large groups of plaintiffs coming together to pursue compensation for common complaints – most notably egregious negligence in the face of the COVID-19 pandemic.

To learn more about our long-term care class action lawsuits, or to schedule a consultation, contact us today.

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Will Ontario’s Civil Justice System Provide Better Service in the Wake of COVID-19?

Just as it touched every facet of our society, COVID-19 had devastating impacts on Ontario’s civil justice system, impacts which will be felt years into the future. However, the issues affecting the system during and in the wake of the pandemic are not new – even before the March 2020 lockdowns took effect, Ontario’s courts were dealing with a massive backlog of cases causing months- or years-long delays.  Now, there is hope among some personal injury lawyers that the courts will be forced to take drastic – or at least innovative – steps to address these challenges.

Last month, Law Times reported on Louis v Poitras. The case not only illustrates personal injury lawyers’ pre-2020 frustrations with the civil justice system, but may also predict a path forward.

Firma and Marcdere Louis were injured in a motor vehicle accident in Ottawa in 2013. They filed a claim against Jacques Poitras and two other defendants, but it would be years before a trial date was set. It was eventually confirmed for April 20, 2020, almost seven years after the accident. Then, COVID hit, and the trial date was lost. If ‘justice delayed is justice denied,’ – one of the legal industry’s favourite adages – then it’s very difficult to argue that the Louis’s received adequate access to justice.

In some ways, the impact of COVID-19 on Louis v Poitras serves as a reflection of the virus’s impact on society at large. Accident victims, especially seriously injured accident victims, are among the most vulnerable members of our society, and COVID has saved its most devastating impacts for the populations least able to weather them.

There is a silver lining to the Louis v Poitras story. According to Law Times, the Ontario Court of Appeal took unusual steps to ensure that the case would be heard, despite the lost trial date. After the court appearance was cancelled, the plaintiff’s personal injury lawyers asked that a jury notice, issued years earlier by the defendants, be cancelled. A jury notice is essentially a formal request that a case be heard by a jury rather than by a judge alone.

At the time of the plaintiff’s motion, jury trials were not being scheduled in Ontario. Judge only trials, though, were available within six months. The judge accepted the plaintiff’s motion, a decision that was successfully appealed in the divisional court before being reinstated in the Court of Appeal. The case was scheduled to proceed in three-week tranches beginning last month. Speaking to Law Times, one lawyer called the decision a “seismic shift” that signals to the lower courts in Ontario that “efficiency in delivering justice is the priority.”

When COVID-19 hit Ontario, the already overloaded court system was forced to confront two new challenges. The first was that existing delays would be exasperated by the necessary shutdown. The second is a massive wave of fresh litigation deriving from the pandemic, including class action lawsuits against allegedly negligent long-term care homes and long-term disability claims from COVID long-haulers, among others.

In order to confront these challenges, the courts will have to embrace the sort of creative, efficiency-minded thinking to which conservative organizations are typically averse. Reducing the number of jury trials and converting scheduled jury trials to judge only, where appropriate, is a good start.


The courts must also embrace new technologies that allow for more remote and online proceedings. This shift has already occurred at most law firms, including at Will Davidson LLP. Our personal injury lawyers now conduct a great deal of their business remotely, with no effect on productivity or efficacy.

It’s easy when discussing the wide-ranging effects of the COVID-19 pandemic to overlook the very real and devastating impact it has had on thousands of families across Canada. People have lost their lives and lost loved ones – that reality should not be forgotten. Many thousands more have seen their livelihoods destroyed with little help from any level of government.

When discussing topics like COVID-inflicted court delays, it’s important to remember who the civil justice system was set up to serve: the public. Whenever decisions are being made about how to address the challenges facing the courts, the end-user must remain top-of-mind. 

If you or a member of your family has been injured in an accident, contact Will Davidson LLP today to schedule a free, no-obligation consultation. Our experienced team of Oakville personal injury lawyers will review your case and explain your legal options.

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