JUSTICE

The failed promise of class actions

BRUCE WALLACE March 11 1985
JUSTICE

The failed promise of class actions

BRUCE WALLACE March 11 1985

The failed promise of class actions

JUSTICE

As a young Montreal lawyer in the 1960s, Pierre Marois fought hard on behalf of victims of the notorious sedative thalidomide. But his efforts to gain justice for parents of thalidomide-deformed children were frustrated by the law’s requirement that he plead each case separately. Marois was deeply affected by the experience, and when he became Quebec’s social development minister in 1976 one of his first priorities was ensuring that the law would never again impede similar cases. The result, in 1978, was Quebec’s pioneering class action law, designed to accommodate individual plaintiffs “who wish to sue without a mandate on behalf of all the members” of an aggrieved group. At the time it was hailed by consumer advocates and jurists across the country as a vital legal reform. But now most observers concede that the law has proved virtually unworkable. Said Patrick Glenn, McGill University law professor: “The law will likely sit quietly on the books, but it will never be the cure-all it was intended to be.”

In 1978 many jurists feared that Marois’ law, designed to aid what he described as “the little guy” in disputes with large institutions, would cause chaos in the courts as consumers rushed to sue corporations. But because it was burdened with so many clauses designed to protect both plaintiffs and defendants, judges have avoided drawn-out class actions. The law stipulates that any potential class action must be approved by a Superior Court judge, and few of them have been willing to grant that approval. Now, only four of every 10,000 cases heard in the Superior Court of Quebec is a class action. Acknowledged Paul Unterberg, a Montreal lawyer who specializes in class action suits: “Our batting average with getting judges to agree to hear cases is lousy.” Quebec legislators patterned their law on the 1966 U.S. federal class action legislation, which is used mainly by public-interest lawyers in challenges to institutions. Although 95 per cent of cases launched in Quebec are aimed at large corporations, unions or government, it is usually only the smaller suits which involve clearly defined classes that succeed. Said Glenn, an outspoken critic of class actions: “There is a limit on what the judiciary is supposed to do. How can a single judge be expected to render a fair verdict applicable to thousands of people and be expected to see it implemented through all the appeal stages?” But even the small cases that do suc-

ceed extract an unexpected toll. Said Glenn: “Class actions are so terribly complicated and their intellectual and emotional burden so severe that not only judges but parties and lawyers are also standing back from the process.” Elaine Comartin, a Montreal university employee who sued a travel agent over a ruined 1982 vacation, was closely involved in one such case. Thinking it

offered her the best chance of success, Comartin chose a class action suit on behalf of her fellow vacationers, taking advantage of a public fund established to underwrite suits of that kind. But now, after “using up another week of vacation time reliving the whole awful experience again in a courtroom,” Comartin is convinced that she should have sued in small-claims court, where cases are disposed of in a single day. Indeed, she is still awaiting payment of her court-awarded settlement. “I find

the whole process discouraging,” she said, blaming the complications in the law. “Sometimes too much fairness can lead to unfairness.”

Despite the law’s failure to achieve its goals, other Canadian provinces are still studying the Quebec example as a basis for changing their procedures governing class actions. “The narrow judicial interpretation of our sparsely worded rule of procedure on class action means that its availability is extremely limited in all common law provinces,” said Larry Fox of the Ontario Law Reform Commission, which in 1982 recommended a class action law.

Although that recommendation is under “active study” in the Ontario attorney general’s office, the province has no immediate plans to introduce legislation. But, ironically, the failure of Quebec’s law has removed fears that similar laws in other provinces would clog court dockets. “We have watched the number of successful cases wane since the late 1970s, even in the United States,” said Simon Chester of the attorney general’s office.

If they do allow class ac tions, the common law provinces may profit from Quebec's experience, espe cially the example of its public fund, which is de signed to encourage the use of the law by subsidiz ing even losing challenges. As well, 1982 amendments strengthened the law by withdrawing the right of appeal for defendants in authorized class actions.

Still, the future of the Quebec law is uncertain. It has failed to fulfil its origi nal function-assisting the individual wronged by a large corporation-and even its successes cut both ways. The week that Comartin spent in court fighting her suit "sure didn't seem worth it for $420," she recalls. "The travel agent may feel the sting of the global amount, but I could have done almost as well in small-claims court and certainly experienced less strain." BRUCE WALLACE in Montreal.