Prison lawsuit ruling shows why mass torts can be a valuable tool

By Tony Poland, LegalMatters Staff • A recent British Columbia court of appeal decision overturning certification of a class-action lawsuit brought by 215 inmates of a federal prison confirms the need to develop a Canadian-based mass tort litigation regime, says Barrie-area litigator Steve Rastin.

The proposed class action relating to the alleged unlawful strip searches of prisoners in January, 2010 got the green light in B.C. Superior Court. However, the Attorney General of Canada appealed. 

In allowing the appeal, the B.C. appeals court held that all but one of the plaintiff’s claims — misfeasance in public office — would inevitably need individualized inquiries, so the class was therefore not suitable for certification.

Rastin, senior counsel at Rastin Gluckstein, who handles class-action and mass tort lawsuits along with Gluckstein Lawyers associate Jordan Assaraf, says the ruling is the latest challenge making it more difficult to use class action proceedings to provide access to justice.

‘It is fair to say that this decision is a step back’

“It is fair to say that this decision is a step back. The test for certification was made more onerous in Ontario in recent years. In response, many class-action law firms started filing more claims out of British Columbia,” he tells LegalMattersCanada.ca. “However, this B.C. court of appeal decision says certification in cases of common harm with individual injuries is not automatic, even in that province.

“There’s a perception that British Columbia is the most favourable jurisdiction in the country with respect to class-action cases,” adds Rastin, who was not involved with that case but comments generally. “What this judgment means is that even in British Columbia, you are not going to get a free ride when it comes to whether to grant certification in cases where every plaintiff or class member is harmed by the same conduct but arguably suffers their own unique damages.”  

In Rastin’s view, this case represents a tightening of the test compared to historic claims such as the Walkerton tainted water proceedings.

He says the B.C. court of appeal decision could spur a move to more mass tort claims in this country.

Mass tort lawsuits originated largely in the United States, Rastin says. He explains mass torts involve a group of lawsuits that are brought separately but usually have a similar fact situation. 

A group of lawyers is chosen to steer the combined actions through the courts, selecting a number of representative actions to take to trial. The remaining cases are then resolved using the results of the trial as guidelines.

United States has a more developed system

“The United States has a more developed system than Canada. And what the B.C. case suggests to me is we have to move in that direction,” Rastin says. “If not, we run the risk of creating a gap between cases with too many individual issues to allow for class certification but are not cost-effective to proceed by way of individual claims in our current legal system.”

On the surface, the lawsuit filed by the inmates “is exactly the kind of case you would think might be certified as a class action,” he says.

Generally, class action claims involve a large group of people whose individual damages may be insufficient enough to justify the expense of hiring their own lawyer. Instead, they band together under a representative plaintiff to file a claim. However, to win certification, the class faces a commonality test.

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In the inmate’s lawsuit, the court of appeal found that while the facts of the case “are capable of generating common issues,” the common issues approved by the lower court “are unacceptably entangled with factual matters requiring individualized investigation, and therefore do not meet the requirements for certification.”

“The court said you have to look at everyone’s situation individually,” says Rastin. “In other words, even though they were all subject to the same alleged wrong, there are too many individual issues, even in this case, to allow everything to proceed as a class action.

“I understand what the court of appeal is saying, and they might be right under the law. If you’ve got to run 215 separate mini-trials, perhaps there isn’t a benefit there.”

However, that doesn’t mean the case doesn’t have merits, he says.

‘It is an issue, and we ought to turn our minds to it’

“As a litigation community, we need to figure out how these 215 people can proceed together in a way that provides access to justice and court efficiency at the same time,” says Rastin. “It is an issue, and we ought to turn our minds to it.”

He says it may be cost-prohibitive for the courts to hold so many trials. However, it also does not make economic sense for each of these inmates to retain their own lawyer to sue the government individually.

“This case suggests that it would be better if we had a more robust mass tort system in Canada,” Rastin says. “This class-action case very much turns on the individual facts, and it remains to be seen whether this will be the tip of the spear of a new trend in British Columbia.”

He says there will always be room for class-action litigation in commercial cases “where you can pull out a calculator and determine damages if people were overcharged for a service or if a product was defective.”

“But in tort law, such as personal injury and or a violation of rights, there is an uncertainty about how to deal with it on a large-scale basis,” Rastin says.

Courts are struggling

The fact that the lower court certified the class action, but the court of appeal disagreed demonstrates that “the court itself is struggling with how to deal with cases of this type.” 

Still, Rastin is doubtful there will be an immediate push to develop a mass tort system in Canada.

“The Canadian court system is still reeling from the impacts of COVID. Given that governments are so busy dealing with other issues, I am unsure that there’s much appetite to solve this access to justice issue,” he says.

Prior to COVID, there was a “raging debate” about jury reform in Ontario’s civil court. The government called for submissions, and position papers from interested parties were drafted.

“But what happened with that? This answer is nothing,” says Rastin. “The government is concentrating its efforts on modernizing the courts and dealing with the COVID crisis. 

“I worry that this extremely significant issue will not get the attention it deserves because there is insufficient bandwidth,” he adds.