Law provides a remedy to anybody who is directly or indirectly harmed by the acts or omissions of another. Every “legal transaction”, whether civil or criminal, public or private, procedural or substantive, is a variant of one of these “direct” and “indirect” formulas:
▲ ➔ ■ = $
▲ ➔ ● ➔ ■ = $
Understanding class actions requires understanding these core elements of a “legal transaction”
■ is “harm”, which is a trespass upon a right. One’s right is a limitation on another’s freedom.
▲ is an act or omission, invariably a verb.
● is a situation of risk or danger.
➔ is the causal link, connection, or nexus between the act or situation and the harm.
$ is a remedy, whether monetary or injunctive.
These 5 elements are the core of a “legal transaction”. They are complemented by the following.
Entities are legal personalities. They differ from place to place, but usually include the individual. Entities may voluntarily or by imposition of law enter into relationships with other entities. The role of lawmakers is to define those entities and relationships, and delineate their rights and obligations.
Two mental elements - knowledge and intent - and the many variations thereon, attach to the first four elements of a “legal transaction”. The law assigns mental elements to entities based on what they say and do within their environments.
Adjectives and adverbs are the magic of the law. When added to the left side of the equation, they proportionately increase or decrease the right side. A “flagrant” act merits “punitive” damages. A “minor” breach yields “nominal” damages.
Defences attempt to negate the previous eight elements.
The basis of class actions is that many “legal transactions” have elements in common. Arguments against allowing a class action to proceed emphasize elements that are not common.
I am a textualist. Lawyers and judges should not add or subtract words to legal documents. There’s no “liberal”, “flexible”, “conservative”, or “rigid” approach. There’s an “accurate” approach that faithfully defines and gives meaning to each word and that benefits from longstanding interpretational canons.
Class actions legislation in common law provinces was the result of careful study by law reform commissions, and though the results are not perfect, they are a model of excellence in the international legal community. The expanding jurisprudence can be characterized as a vacillating retreat from and subsequent return to the integrity of the original vision and wording drafted by the learned authors of the Ontario Law Reform Commission. Canadian Courts should embrace a commitment to the express wording that resulted, and recognize that phrases and concepts from U.S. Federal Rule 23 that have been incorporated into Canadian practice are out of place with uniquely Canadian legislation.
I am committed to the organization of class actions by industry.
(a) In my opinion, random and uncoordinated labels such as “Competition”, “Constitutional”, “Consumer”, “Employment”, “Governmental”, “Institutional Abuse”, “Products Liability”, and “Utilities” are an unsatisfactory means of organizing the broad and overlapping substantive underpinnings of class actions. It’s common for a products liability case to simultaneously include a cause of action for breach of the Charter, be based on the common law of negligence and the Competition Act, and include a variety of defendants that include governments. Litigators need to be aware of all situations, but in-house counsel can be more focussed in their learning of the law so that they can understand and advise their clients as to how the choices they make may potentially trigger class action liability and what to do to avoid it. Previous attempts to organize the law of class actions require navigating a complex maze through various chapters divided by a rogue version of the Dewey decimal system. As Courts cite those sources by page and paragraph, occasional reorganizations and restatements of the developing jurisprudence is hampered.
(b) I am an advocate of the Supreme Court of Canada’s categorical approach to law, where there is a general rule with expanding categorical exceptions that are informed by policy considerations and a coherent organizational analysis. That approach, when applied to frequently occurring factual scenarios against a backdrop of industry-specific legislation and regulations, may eventually provide a basis for a categorical approach to frequently occurring situations in class actions practice: certification, “some basis in fact”, medical record production, etc.
My Case Notes are devoted to reviewing the facts of class actions in various industries – Education, Food and Drugs, Security and Defence, Transportation, etc – and to further exploring these themes.