Law Times

Page 8 March 27, 2017 • Law TiMes www.lawtimesnews.com Canada and U.S. diverge on class participation BY JUDY VAN RHIJN For Law Times A s the Republican Con- gress in the U.S. puts its weight behind a bill that will require class plaintiffs and class members to suffer identical injuries, thereby severely restricting participa- tion in class actions, Canadian courts have once again affirmed that class members and their representatives do not need to have identical claims. The proposed legislation, named the Fairness in Class Ac- tion Litigation and Furthering Asbestos Claim Transparency Act of 2017, was received in the U.S. Senate and referred to the Committee on the Judiciary ear- lier this month. It requires that "the party seeking to maintain . . . a class action affirmatively demon- strates that each proposed class member suffered the same type and scope of injury as the named class representative or represen- tatives" and that the court must undertake "a rigorous analysis of the evidence presented, that the requirement . . . is satisfied." "The U.S. law purports to require personal injury class ac- tions to be limited to class mem- bers who have suffered 'the same type and scope of injury,'" says Margaret Waddell of Phillips Gill LLP of Toronto. "If passed, this will effectively gut the ability to bring personal injury class proceedings, given the inherently unique nature of personal injury damages." Waddell says the same restric- tions aren't in effect in Canada. "That's never been the case here," says Waddell, referring to the Class Proceedings Act. "Our legislation specifically says we don't have to have exactly the same injury. The definition of common issues is 'common but not necessarily identical is- sues of fact' or 'common but not necessarily identical issues of law.' You don't have to have ex- actly the same case to have com- monality." Brian Radnoff of Lerners LLP says that, in Ontario, the rules of commonality are more liberal. "Class members can have very different positions, and there is the authority to divide them into subclasses," he says. "There is no rule that all class members have to have suffered the same type of injury or that the representative plaintiff has to have suffered the same type of injury as everyone else." Doug Lennox of Klein Law- yers LLP of Toronto refers to the case law on certification of class actions in Ontario, which pre- scribes a five-part test. "The fifth part is the adequa- cy of the representative plaintiff," he says. "The question is — how representative does the plain- tiff have to be? Do they have to model all of the characteristics?" He refers to the American concept of "typicality" that is already in place, which requires representatives' claims to be "typical" of the class. "The Ontario Law Reform Commission in 1982 rejected typicality, as have the courts," he says. This view was confirmed most recently by the Ontario Su- perior Court of Justice in Dani- ells v Melissa McLellan and North Bay Regional Health Centre (NBRHC) 2016 ONSC 5958. The case is a class proceeding that claimed damages for intru- sion upon seclusion on behalf of approximately 5,800 people whose medical information was improperly accessed by McLel- lan, an employee of the hospital. The NBRHC sought to compel a representative plaintiff to pro- vide information and produce documents that would show her case to be so unique as to make her an inappropriate representa- tive for the class. Justice Gregory Ellies of the Superior Court of Justice made several statements in the ruling confirming an established toler- ance for differences in claims, namely that it "is well-settled that a representative plaintiff need not be typical of the class she seeks to represent" and "a 'Plain Jane' plaintiff is not required." "A representative plaintiff need not be typical of the class or share every characteristic of ev- ery other member of the class. It is sufficient that he or she would fairly and adequately represent the interests of the class and be without interests in conf lict on the common issues," he said in the ruling. Lennox says the issue of how representative the face of the class action needs to be is a hot topic because of what's transpir- ing south of the border in a Re- publican Congress. "They are trying to pass legis- lation saying to certify the class everyone has to be identical. Re- publicans are doing that to abol- ish class actions," he says. "All humans have differences. Diversity in the class is inevi- table and unavoidable." Waddell says this is particu- larly apparent with personal in- jury cases. "If a drug is defective, there can be variations to the medical prognosis," she says. "In the Ca- nadian system, some common arguments can be decided all at once, then individual issues are decided in subsequent hearings. So the representative plaintiffs don't have to be typical." In s. 5(1)(e) of Ontario's Class Proceedings Act, 1992, three cri- teria are set out. This is that the "representa- tive plaintiff is able to fairly and adequately represent the inter- ests of the class," that "the repre- sentative plaintiff has produced a proper plan for the proceed- ing" and that "the representative plaintiff does not have an inter- est in conf lict with the other members of the class on a com- mon issue for the class." Waddell says representative plaintiffs have to be representa- tive of the class in the sense that they have a common complaint and their experience raises is- sues that have to be determined to resolve everyone's cases. "They must be reasonably prosecuting for the benefit of the class and meet certain criteria in the legislation," she says. LT FOCUS ON Class Actions Margaret Waddell says a proposed U.S. bill 'will effectively gut the ability to bring personal injury class proceedings, given the inherently unique nature of personal injury damages.' FOCUS 2017 CANADIAN LAWYER LEGAL FEES SURVEY Survey closes April 3 Complete the survey at canadianlawyermag.com/surveys for a chance to win a $200 gift card. Check out the results in the June issue to see how your fees compare across multiple practice areas. Untitled-1 1 2017-03-08 12:03 PM

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