Law Times

Law timeS • September 5, 2011 FOCUS PAGE 13 nities for litigants who couldn't possibly pursue a matter indi- vidually, some lawyers worry that the process still appears to be challenging and sometimes com- pletely unavailable to the most vulnerable and powerless. But Omar Ha-Redeye of To- Can class actions tackle social wrongs? W BY JUDY VAN RHIJN For Law Times hile the class ac- tion proceeding has opened up opportu- launched the fi rst application under the Class Proceedings Act on behalf of lawyers having trouble with their legal aid ac- counts. "Ultimately, it was not necessary to certify it because we negotiated a successful reso- lution of the issue," he says. Falconer's fi rm has a public ronto is one lawyer who believes that class actions dealing with social issues are an option. "In a broader sense, there are social is- sues whenever there is injury or damage," he says. "For example, in the Caledonia class action, the grievances were social in the sense that people claimed harm in the enjoyment of their property." Ha-Redeye also refers to the challenge to obtain pension en- titlements for same-sex couples. "People use the actions to push back against larger companies and even government initiatives. It's a viable vehicle to use." One factor limiting the use of class actions to address social wrongs is the perception that ju- dicial attitudes remain opposed to the practice. Sarah Shartal of Roach Schwartz & Associates at- tempted a social impact class ac- tion when she tried to force the Toronto Community Housing Corp. and the City of Toronto into specifi c performance mea- sures for their repair obligations. She says it was met by an "infuri- ating" judicial attitude against the use of the vehicle for this purpose. "Th e court is too uncomfort- able to go anywhere near social impact class actions. Th ey should be available as a systemic remedy when there is a systemic problem, such as patterns of behaviour or discriminatory actions by govern- ments and other groups aff ecting dependent people." Despite Shartal's annoyance with the court system, she was pleased to see that the govern- ment responded by increasing its budget for maintenance of public housing by $1 million. Judith Wahl, executive direc- tor of the Advocacy Centre for the Elderly, has never used a class action in her 27 years of experi- ence. Instead, her tools have been advocacy directed at the govern- ment to push for law reform and test cases. Wahl recalls a case litigated in the late 1980s that explored whether rent control legislation applied to retirement homes. Her offi ce represented 125 people, all with individual retainers. "It was very time-consuming," she says. Th e case was successful and prompted the government to amend the tenancy legislation, but Wahl wonders whether a class action would have been a more effi cient vehicle if it had been available at the time. "If you have enough of a client group with a common issue, it is a potential option and a good vehicle for so- cial justice claims," she says. Julian Falconer of Falconer Charney LLP in Toronto Untitled-4 1 www.lawtimesnews.com 11-08-31 10:13 AM interest litigation agenda and does class actions, but the two are rarely combined. "Th e reason it is a challenge to integrate class pro- ceedings and social change is that, fi rstly, there is an extremely high hurdle to get over in certifi cation. Secondly, while being a potent weapon, class actions carry the burden of very cumbersome pro- cedural machinery. If your brief is to eff ect change in a timely and effi cient way, it's probably not an eff ective use of resources." Daniel Bach, a lawyer at Sis- kinds LLP in Toronto, believes that pursuing a purely social agenda is probably not enough to warrant a class action. "A lot of purely public interest questions don't need a class action. For ex- ample, the recent case on prosti- tution was not a class action on behalf of all prostitutes, but the ruling will have a broad eff ect. You only need the instrument of a class action when you want to eff ect change and get compen- sation such as in the residential schools case, which was public in- terest litigation but also obtained compensation." Eric Gillespie, counsel to the Canadian Environmental Law Association who has been heav- ily involved in Pearson v. Inco Ltd., says class actions dealing with social issues are a possibil- ity. "In theory, you could use a class action for non-pecuniary claims if the representative plaintiff had an arguable action that otherwise satisfi es the certi- fi cation criteria," he says. Still, he concedes that in Inco, even health-related matters were left out of the compensation claim due to the individual issues involved. "It's not easy to do class 'In a broader sense, there are social issues whenever there is injury or damage,' says Omar Ha-Redeye. actions in the environmental area for mass torts if property impact and impairment are not there. You could extrapolate that to social impacts. I don't think our courts are there yet." But Falconer believes that the sizable damages awarded in the residential schools case warranted using the cumbersome process. "But that's the exception rather than the rule," he says, noting he prefers to proceed with a repre- sentative plaintiff as he's currently doing in a dispute over how the police interact with the Special Investigations Unit. "Here's the point," says Fal- coner. "It could just have easily been a class action because it is a system-wide practice that po- lice engage in. Th at was entirely within the range of options, but my experience with class actions is that they should be reserved for the most extreme cases. Lawyers tend to see huge pots of gold at the end of the rainbow and don't appreciate the weight of the ma- chinery they have to invoke. Th e process needs to create pressure and move quickly, but class ac- tions are diffi cult to get off the ground and are the opposite of expeditious." A CONCISE STARTING POINT FOR OCCUPIERS' LIABILITY LITIGATION CAUSE OF ACTION: OCCUPIERS' LIABILITY JANET E. SMITH, B.A., LL.B. Get a succinct overview of occupiers' liability law with this single new resource. Incorporating the latest case law and legislative developments, this primer explains how the principles of Occupiers' Liability Law apply in practice. You'll save time and effort selecting the relevant information you need – including expert commentary and analysis, sample precedents and pleadings, as well as appendices featuring practical checklists, questions for interviews and discovery, and detailed investigation instructions. SUBJECTS COVERED INCLUDE: • Who may be deemed an 'occupier' and what may be considered 'premises' • The elements of an occupiers' liability action • Claims related to those based in occupiers' liability • Vicarious liability • Obligations of adjacent neighbours • Dog owners' liability • Offroad motorized vehicles and snowmobiles • The social host's duty of care to guests and others • Damages • Limitation periods and notice requirements ORDER # 983630-62293 $75 Softcover 225 pages May 2011 978-0-7798-3630-7 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800

• Cover
• E-disclosure
• Bilingual Furor
• Focus On Class Actions