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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Details Emerge from Orchard Villa’s Fight Against COVID-19 Outbreak

Dozens of nursing homes across the Province of Ontario experienced large COVID-19 outbreaks during the height of the pandemic. None were affected more severely than Orchard Villa Retirement Community in Pickering. On May 25, 2020, Will Davidson LLP announced a COVID-19 class action lawsuit against Orchard Villa and its owner, Southbridge Care Homes. On June 23, the Statement of Claim was amended to include Extendicare (Canada) Inc., the home’s operator.

“When COVID-19 hit both the owners and managers of Orchard Villa were woefully unprepared to deal with the crisis,” said Gary Will, the lead counsel on the case and a Will Davidson LLP partner, in a statement. “Orchard Villa has the very highest death rate in a long term care facility in Ontario with 85 deaths and a total of 269 infections. This home was grossly mismanaged. Extendicare and Southbridge must be held to account and there must be justice for the residents and their families.”

On June 11, the Durham Region medical officer of health declared the COVID-19 outbreak at Orchard Villa ended. In the following months, a clearer picture of the full scope of the outbreak has emerged, as well as a better understanding of what went wrong.

According to a recent report in the Toronto Star, ‘inspectors from the Ministry of Long-Term Care acting on a complaint found more than a dozen instances in which the home failed to comply with regulations’ in May and June. These failures included:

  • Not training staff on infection control and containment within a week of hiring, a regulation instituted by the Ministry in March in direct response to the pandemic,
  • Not providing an adequate skin assessment to a fallen resident, and,
  • Not preventing the administration of an unprescribed medication to a resident.

Additionally, when Lakeridge Health assumed temporary management of the facility at the medical officer’s request in June, it found that the home was “significantly understaffed.”

Speaking with the Star, Patricia Spindel, co-founder of the advocacy group Seniors For Social Action Ontario, said: “Clearly the oversight of that facility has been in my view negligent on the face of it because you see no director’s orders issues, you see no licence revocations, you see no ceases admissions. That speaks to oversight that is off the rails.”

Also speaking with the Star, Laura Tamblyn, CEO of national seniors’ advocacy group CanAge, said: “We know that when there’s consistent failure to comply and where the outcomes are dangerous to residents, that there needs to be not just appropriate support but appropriate response, which means there needs to be teeth in the inspection and legislation. What we’ve seen with COVID is not so much a surprise but just an illumination of the problems in the system that we always knew were there. The question is: will we now actually fix it?”

Orchard Villa’s failures were particularly egregious given their surrounding circumstances. The home’s owner, operator, and staff should have redoubled efforts to ensure residents’ safety with the knowledge that COVID-19 poses unique risks to the sick and elderly. However, as Laura Tamblyn alluded to, the failures were part of an established pattern of inadequate care at the home.

“Orchard Villa was investigated by the Ministry of Long Term Care on nineteen occasions from 2017 to 2019 in response to specific complaints concerning serious deficiencies in the level of care at Orchard Villa,” said Gary Will, in the same statement. “The Ministry spent over 43 days at Orchard Villa investigating the complaints. The Ministry issued 65 written warnings, 32 voluntary plans of correction, 12 compliance orders, and referred 3 matters to the Director.”

Family members of Orchard Villa residents are desperate for change and eager to the hold the facility to account. Sylvia Lyon is the representative plaintiff in our COVID-19 class action. Her mother, a resident at the facility, died from the illness in April.

“My mother was a good, decent individual who had overcome many obstacles in her life,” Lyon said in a statement. “We entrusted her care to the owners of Orchard Villa. In addition to the amounts many families paid to have their mothers and fathers looked after, Orchard Villa received over $11 million in funding each and every year from the Ontario government. Yet each year the care provided was less and less. There needs to be accountability to the taxpayers of the province and to the families of residents who passed away over the last two months.”

Speaking with the Star, June Morrison, whose father George was also a resident at Orchard Villa and also died of COVID-19, said: “I personally think they need their license revoked. They have proven time after time based on the inspection reports that they fail to live up to regulations and legislation.”

Contact Will Davidson LLP to Learn More About our COVID-19 Class Action

If your family has been affected by the COVID-19 outbreak at Orchard Villa or any other long-term care facility in Ontario, contact Will Davidson LLP today to schedule a free, no-obligation consultation. In addition to our COVID-19 class action against Orchard Villa, our team is investigating or actively pursuing claims against several other facilities. Learn more here.

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Class actions vs. Mass Tort Litigation

judge gavelThere are many reasons why class actions may commence. The basic reason is that a group of people have all been harmed in a similar way. This could be, but not necessarily,  as a result of product, company, or environmental issues. All of these may require a class action or mass tort litigation for those impacted to receive compensation.

 

When a person purchases something, whether for medical reasons or simply “just because”, there is a certain trust we as consumers have that the product will not be defective. On many occasions, a defective product is not the end of the world. One may simply need to call the company and request a new product. On the other hand, there are times when a defective product can cause serious health, economic and psychological issues, in which the consumer deserves compensation accordingly, which is when a class action or mass tort litigation action may be necessary. A class action or mass tort litigation action can arise when it is not only one consumer that has been impacted by the defective product.

One of Will Davidson’s defective product experiences is with allegedly defective pelvic mesh devices, where hundreds of plaintiffs have come forward with claims. Will Davidson had to decide the best way to proceed for their clients and the claimants of this action. Therefore, the following is an important question: What is the difference between a class action and mass tort litigation?

In class actions, the plaintiffs involved need to fall under a strict “commonality” requirement, amongst other things. Remember that class actions are tried together-as one. An example of the consequences of this, is the following: When a settlement is paid out, it is split between the parties. Therefore, you may not get as much as you feel fair in class actions. In class actions, all plaintiffs are in it together and there are many restrictions and court proceedings that need to be followed to ensure a proper class action. Despite the complications, certification, which is the ability to begin a class action, is a lot less difficult in Canada than it is in the States. This is a positive reason to proceed under this umbrella.

Mass Tort Litigation: Mass tort litigation allows for individuality. The commonality requirement is not there as it is in class actions. Defective products, although they might injure many people, may not cause the exact injury and therefore, a commonality requirement is difficult to satisfy. This is one of the positive reasons why one should proceed under mass tort litigation.

In the end, individual circumstances are the deciding factor as to whether a case proceeds in a class action or individually with mass tort litigation. As courts get more and more comfortable with these types of cases, either the class action route or the mass tort litigation route, may come out as the winner. Despite the “newness” of these types of class action legal proceedings in Canada, do not be afraid to take on who you need to, to get the compensation you deserve! If you have sustained personal injury from a defective product, do not hesitate to contact our personal injury law firm to find out about your legal rights.

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