Class Action & Mass Torts

We all know that there is power in numbers. Many people working together for a common goal can overcome barriers that would be difficult for an individual to surmount. In the personal injury field, when we think of power in numbers our minds turn to class actions and mass torts. These types of lawsuits allow a group of people who have sustained the same type of injury or similar injuries to join together to sue a common defendant or defendants.

Personal injury, product liability, or medical malpractice cases can sometimes be pursued as a class action or mass tort. Deciding whether to participate is an important consideration for people who may qualify, and there are some notable differences between these types of legal actions.

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What are class actions and mass torts?

Key similarities and differences.

A class action is a civil claim brought by one or more individuals on behalf of a larger group. Class action lawsuits are common where the same at-fault party injures a group of people - known as class members - in the same way. One representative case is used to speak for the interests of the entire group. Rather than having each person bring his or her own lawsuit against the defendant, a class action allows the group to collectively sue the at-fault party to resolve the claims in a single legal proceeding.

The main goal of class proceedings is to provide access and opportunity for those who have been wronged to seek justice, but are not able to individually pursue legal actions, either because of a lack of available funds to do so or because of the risk-reward-ratio involved in a suit. Through a class action, these individuals are provided with the opportunity to seek legal resolution for the alleged damages they have experienced as a result of the negligence of another person or entity.

Class action lawsuits provide an efficient, cost-effective way to litigate common issues. They help to equalize the playing field against a large entity, such as a corporation or government, that has deep pockets and extensive resources from which to fight claims. A class action's outcome is important not only for the class members, but also for society at large; this type of lawsuit goes beyond the goal of justice for the class members, and can actually correct or alter damaging behaviour.

When a class action is certified, a court order will define the class. If you fall within the definition which is set by the court, you are automatically included, unless you decide you do not wish to participate in the suit. If you would like to preserve your right to pursue an individual case, you must opt-out of the class action.

There will be a limited window of time for you to opt-out, which will be indicated in the certification order which is sent out after the proceeding is certified. However, be aware that once you have opted out, you are no longer entitled to receive any settlement as a part of the class action if the case is resolved. You must launch your own civil suit if you intend to seek compensation for your injuries or losses.

Similar to class action lawsuits, mass tort actions involve many injured parties against one or a few at-fault parties. However, unlike a class action, a mass tort action treats each injured party individually, rather than as an injured group. It can be an efficient and cost-effective way to navigate the legal system for multiple parties experiencing the same or similar injuries and to litigate common issues.

Steps in class actions and mass torts.

To commence a class action:

• A representative plaintiff must be identified.
• This plaintiff’s case must be able to adequately and fairly represent the interests of a class as a whole.
• The lawyers for the class will then bring a motion to the court for certification of the class.
• The motion will present to the court the reasons why a class action is appropriate to represent all people identified as class members. 
• If certified, a notice will be issued to potential members of the class to inform them of the proceedings. This gives them an opportunity to submit written confirmation that they wish to opt out of the action if they want to litigate their case as an individual.

Withdrawing from the class action means that an individual will no longer be able to access any negotiated settlement or court award to the class. However, class members will be bound by the result of the trial or the settlement and cannot re-litigate their own case if they are dissatisfied with the result. Members of the class will be sorted into categories according to the nature and severity of their injuries as the money from a settlement or court award is divided after legal expenses are deducted.

For mass torts, without the necessity of a representative plaintiff, a collection of individual claims will be filed to commence proceedings. Ensuring that there is a sufficient number of claims falling under the mass tort umbrella is important, as it puts a singular pressure on the defendant. Each individual plaintiff will file their own statement of claim. While the allegations in each claim will likely be broadly similar, the plaintiff’s unique circumstances and injuries will be established.

If a settlement offer is made in a mass tort case, each individual claimant has the choice to accept it, reject it, or make a counter-offer. Unlike a class action where all class members are bound to a group decision, individuals taking part in a mass tort case retain the ability to direct their own case as they see fit. This ability permits a level of direct involvement in proceedings by plaintiffs that is not possible in class actions where group members take on a passive participant role.

Justice for you and society at large.

By their very nature, class actions and mass torts affect many people. If an entity such as a corporation has made an unsafe product, a variety of consumers are affected. If a hospital’s practices have resulted in medical malpractice, multiple people may have been harmed. Each plaintiff is seeking a sense of justice by participating in a class action or mass tort.

Part of this justice can be compensation to acknowledge the harm the defendant has caused to them individually. But when a defendant in these cases is penalized for their negligent actions or inaction, it serves as a powerful message for them and others to take precautions to avoid causing similar harm in the future. It may inspire action to correct or modify damaging behaviour or widely accepted practices. In this way, everyone benefits from increased safety.

Trusted expertise.

As one of Canada’s top personal injury firms, Gluckstein Personal Injury Lawyers has the knowledge, experience and skill to represent you or your loved ones in a class action or mass tort. We recently negotiated a $1.5 million settlement for victims of negligence by ReproMed Fertility, the Toronto Institute for Reproductive Medicine. That company’s negligence in inspecting, monitoring, and maintaining its cryogenic storage tank resulted in the destruction of embryos, eggs and sperm that its clients had entrusted to it. 

Currently, we are representing plaintiffs in lawsuits relating to:

• Ukrainian Airline Flight 752 (a plane crash which occurred when Iran used a Tor-M1 surface-to-air missile to shoot it down. Of 167 passengers on board, 138 were travelling to Canada. There were no survivors).
• Zimmer Biomet ExploR Modular Radial Head (a medical device used in elbow surgeries across Canada that results in permanent injuries and the need for corrective surgery and future care).
• DePuy Attune Knee System (a medical device used in knee replacements that has been failing at much higher rates than expected. The pain caused by these failures can be severe and require physical therapy and or/revision therapy).
• Health Sciences North (the radiology department in this Sudbury-based medical facility is alleged to have consistently failed to meet the required standard of care when interpreting breast imaging reports between 2008 and 2020).

If you or a loved one think you may be eligible to participate in one of these actions, please contact us for further information on your rights and options. For almost 60 years, we’ve helped clients and their families move forward with dignity and trusted expertise when faced with life-altering injuries.

Our team of personal injury lawyers in Toronto, Ottawa, Niagara, and Barrie are committed to providing our clients with full-circle care as they depend on us during the most challenging times of their lives. You can trust that we will be with you every step of the way.