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Reseña:
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A foundational document in Canada on class actions is the OntarioLaw Reform Commission’s (OLRC) Report on Class Actions(1982).1 It is an excellent three volume report that bases its recommendationof the introduction of class actions in Ontario on threeunderlying policy objectives.The first, and most important objective, is to afford greater accessto justice. Litigation has become so expensive that claims of modestamounts, and even those of significant amounts, are not economicallyfeasible to pursue on an individual basis. In class action terminology,these are referred to as “individually non-viable claims.” There aremany more individually non-viable claims in Canada than in the in Canada are tried by judges sitting alone rather than being tried byrelatively uncontrolled juries as in the United States;4 and (4) Canadahas a fee shifting rule (generally the losing party must pay a large partof the winning party’s legal fees), which is a major deterrent to litigation.5The second policy objective is to improve judicial efficiency.Where the alternative to a class action is repetitive litigation relatingto the same events, the result is judicial inefficiency. For example,when class action certification was refused for claims against Canada’sblood system relating to transfusion-related AIDS transmission,6more than eighty such cases were filed in Ontario alone. The filing ofindividual claims resulted in three very long trials without significantplaintiff-wide settlements.7 Such individual actions often cover thesame ground time and again; they are not only inefficient, but canlead to inconsistent decisions. It is noteworthy that the judicial efficiencyrationale really only comes into play where the claims assertedare individually viable; permitting class actions for individually nonviableclaims brings about litigation which would, without class actions,never be brought. This may increase the judicial workload andthereby decrease judicial efficiency.United States for several reasons: (1) Canada has ceilings on damagesfor pain and suffering in personal injury cases, and relative to awardsin the United States, these ceilings are very low;2 (2) Canadian courtsrarely award punitive damages;3 (3) the vast majority of civil actions.The third policy objective is to achieve behavioral modification.When manufacturers and other entities can inflict small amounts ofdamage on a large number of people who cannot afford to litigate individualclaims, the deterrent function of the law, such as tort law, islost. Hopefully, subjecting potential defendants to the risk of a classaction will modify their behavior.Canadian courts refer to the above social or policy objectivesconstantly when interpreting class action legislation |
