Mass torts effective in ensuring access to justice for average plaintiff

By Tony Poland, LegalMatters Staff • With the cost of litigation becoming increasingly out of reach for the average plaintiff, a move to mass tort lawsuits appears inevitable, says Barrie-area litigator Steve Rastin.

Rastin, senior counsel at Rastin Gluckstein, says he has joined Gluckstein Lawyers associate Jordan Assaraf to handle class action and mass tort lawsuits.

“More and more, we are seeing situations where the cost of justice is so expensive to the extent that an increasing number of people are being frozen out,” he tells LegalMattersCanada.ca. “It is reaching the point where people cannot afford to hire a lawyer. I believe we are going to move more toward mass torts.”

Costs in personal injury case can add up

Rastin explains costs, including, but not limited to legal fees in an individual personal injury claim, can add up.

“There was a time that $50,000 cases were viable,” he says. “But now you may have to spend $30,000 to get it to trial, so it may not be worth it. An individual may not be in a situation to hire their own lawyer in those cases.”

However, if multiple people have been harmed due to the negligence of one or more at-fault parties, it can make more sense to file a class-action or mass tort lawsuit, Rastin says.

“You may be entitled to substantial damages in a legitimate claim, but if you are going up against a big entity with many resources at their disposal, it may not be worth the time, money and effort it takes to bring the case to trial,” he says. “However, if you have a number of people who have had the same issue, you could proceed as a mass tort or class action.”

Lawsuit is brought under a representative claimant

Rastin explains class actions are civil claims brought by one or more people on behalf of a larger group, known as class members. Rather than having each individual sue a defendant, the class can band together under a representative claimant to launch the suit. Class actions can handle different areas of the law, such as personal injury or product liability.

“This allows people with smaller claims to join forces and take on large entities,” he says. “It levels the playing field.”

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Rastin says a statement of claim is filed on behalf of everyone and goes before the court for certification or the right to proceed, facing a commonality test.

“These cases tend to be won or lost at the certification level. The argument being there is enough in common with the cases that it makes sense to try them all together,” he says. “If successful on certification, the likelihood of entering settlement negotiations significantly increases, or at a minimum, your chances of success significantly increase. If you lose on certification, your class action will not proceed.”

Different plaintiffs can get different amounts in damage awards

Settlements for class actions are generally calculated using criteria agreed to by the parties or set by the Court, Rastin says, and different plaintiffs can get different amounts in damage awards.

While class actions can be effective, he says recent legislation by the Ontario government has made it more difficult to certify cases and for lawyers to get their costs.

“Originally, when the legislation was brought in, many believed that would be the end of class actions in Ontario,” Rastin says. “Since then, many class-action cases have been filed in Quebec and British Columbia. It remains to be seen if the rules are going to be changed.”

Mass torts originated largely in the United States, he says, and are really nothing more than a group – often a large group – of lawsuits brought separately but usually consider a similar fact situation. 

‘Each case is an individual action and damages for each vary’

‘”There is a common product liability of a manufacturer’s defect or problem with a certain drug, for example,” says Rastin. “Each case is an individual action and damages for each vary by circumstances.

“What has happened in the U.S., and what is likely coming to a Canada, is a system whereby a group of lawyers chosen to steer the actions through the courts selects a number of representative actions to take to trial,” he adds. “The remaining cases are then resolved using the results of the trial as guidelines.”

Rastin says he sees a shift in litigation coming. In the past, motor vehicle accidents could be the heart of a personal injury firm’s practice.  However, the number of active motor vehicle litigation cases in the system is likely to continue to decline.

“We have already reached the point where the vast majority of people, in the vast majority of cases, do not have access to justice. Most people do not have enough money to access legal representation,” he says. “I believe that in five or 10 years from now, motor vehicle litigation is going to be something that is an insignificant part of the litigation experience in Ontario, and mass tort and class action will play a bigger role. And for good reason. Mass torts and class actions offer consumer protection, allowing people who might not have the wherewithal to take on these big organizations or corporations to seek justice.”