Margaret Waddell in Law Times: “Canada and U.S. Diverge on Class Participation” —

The following article appeared in the Law Times on March 27, 2017. Visit the original article.

As the Republican Congress 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 participation 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 Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, was received in the U.S. Senate and referred to the Committee on the Judiciary earlier this month.

It requires that “the party seeking to maintain . . . a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives” 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 actions to be limited to class members 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 restrictions 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 issues of fact’ or ‘common but not necessarily identical issues of law.’ You don’t have to have exactly the same case to have commonality.”

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 Lawyers LLP of Toronto refers to the case law on certification of class actions in Ontario, which prescribes a five-part test.

“The fifth part is the adequacy of the representative plaintiff,” he says. “The question is — how representative does the plaintiff 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 Superior Court of Justice in Daniells v Melissa McLellan and North Bay Regional Health Centre (NBRHC) 2016 ONSC 5958.

The case is a class proceeding that claimed damages for intrusion upon seclusion on behalf of approximately 5,800 people whose medical information was improperly accessed by McLellan, an employee of the hospital. The NBRHC sought to compel a representative plaintiff to provide information and produce documents that would show her case to be so unique as to make her an inappropriate representative for the class.

Justice Gregory Ellies of the Superior Court of Justice made several statements in the ruling confirming an established tolerance 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 every 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 conflict 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 transpiring south of the border in a Republican Congress.

“They are trying to pass legislation saying to certify the class everyone has to be identical. Republicans are doing that to abolish class actions,” he says.

“All humans have differences. Diversity in the class is inevitable and unavoidable.”

Waddell says this is particularly apparent with personal injury cases.

“If a drug is defective, there can be variations to the medical prognosis,” she says. “In the Canadian 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 criteria are set out.

This is that the “representative plaintiff is able to fairly and adequately represent the interests of the class,” that “the representative plaintiff has produced a proper plan for the proceeding” and that “the representative plaintiff does not have an interest in conflict with the other members of the class on a common issue for the class.”

Waddell says representative plaintiffs have to be representative of the class in the sense that they have a common complaint and their experience raises issues 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.