The Difference Between a Mass Tort and a Class Action Lawsuit

If you or someone you love has been injured because of another’s negligence, you’ve probably heard the term Tort being thrown around. A Tort is a wrongdoing that causes someone (Plaintiff) to suffer loss, harm, or death, that results in legal liability for the person (Defendant) who commits the act.

Tort Law is a key aspect of the Canadian Legal System. It allows someone who has been injured/wronged to hold the responsible party accountable for their actions and provide compensation for those that have experienced harm or loss. In some cases, when many people are injured in the same incident, it makes sense to group them together and bring forth a mass action, allowing the injured parties to bring their individual cases against the Defendant as a collective. This is called a Mass Tort.

Many confuse Mass Tort with Class Action Lawsuit, believing these two terms are interchangeable. Though similar, Mass Tort and Class Action have key differences.

A Class Action is a legal proceeding where one or more plaintiffs bring a lawsuit on behalf of a larger group of people (referred to as a class) that were wronged and the settlement is shared amongst all members of the class.

Similar to a Class Action lawsuit, a Mass Tort allows multiple plaintiffs to advance claims for compensation against defendants for injuries and losses arising out of the same or similar circumstances. Unlike Class Actions, there is no Representative Plaintiff standing for the interests of the group – this means a judge does not need to determine whether the common issues are significant enough to make a Mass Tort, the preferred form of proceeding. Although legal resources are shared as the lawsuits proceed through the courts, each plaintiff remains in control of their own claim, and each is required to prove the nature and extent of their own damages.

In more complex cases of corporate, professional, or government negligence, where the type and severity of the harm suffered by victims can vary significantly, a Mass Tort is a flexible and powerful means of providing access to justice for individual plaintiffs.

Both Mass tort and Class Actions are generally funded through contingency fee agreements, which means a plaintiff to an action does not have to pay expenses related to the case out of pocket while it works its way through the legal system. Instead, legal representatives only receive compensation (a portion of the award) if the action is successful. This means there is substantially less risk for plaintiffs and it can significantly enhance access to justice.

An example of a recent Class Action lawsuit in Canada is the Indian Residential Schools Settlement Agreement, reached in 2006, which stands as a landmark resolution in addressing the historical injustices suffered by Indigenous people in Canada.

The settlement amounted to approximately CAD 1.9 billion, making it one of the largest class-action settlements in Canadian history.

The compensation package aimed to provide redress to survivors for the physical, emotional, and cultural harm suffered during their time in residential schools.

Individual compensation payments were allocated based on the severity of the abuses experienced. Beyond financial compensation, the agreement included funding for healing programs, counseling services, and cultural initiatives designed to support survivors in their journey to recovery.

The Indian Residential Schools Settlement Agreement in Canada was structured as a class action rather than a mass tort for several reasons:

1. Commonality of Issues: Class actions are typically chosen when there are common issues among a large group of individuals. In the case of the Indian Residential Schools, survivors shared common experiences of mistreatment, cultural assimilation, and the negative impacts of the residential school system. A class action allowed for a collective approach to addressing these common issues.
2. Efficiency and Judicial Economy: Class actions can be more efficient in handling a large number of similar claims under one umbrella, streamlining legal proceedings and avoiding duplicative efforts. Given the widespread nature of the harm caused by the residential school system, a class action provided a more organized and efficient mechanism for resolving the claims.
3. Opt-Out Structure: Class actions typically have an opt-out structure, meaning individuals are automatically included in the class unless they choose to opt-out. This structure was suitable for the Indian Residential Schools Settlement Agreement, where survivors were automatically part of the class unless they opted out, simplifying the inclusion process.
4. Representation of Diverse Claims: A class action allows for the appointment of representative plaintiffs who can adequately represent the interests of the entire class. This is particularly important when dealing with a diverse group of individuals with varying experiences, as was the case with survivors of residential schools.
5. Broader Impact: Class actions often aim for a comprehensive resolution that addresses the collective grievances of a group. The Indian Residential Schools Settlement Agreement sought not only financial compensation but also broader goals like acknowledgment, apology, and initiatives for reconciliation, making a class action structure more aligned with these objectives.

With respect to a Mass Tort, a recent example is the Thalidomide Litigation in Canada, that has unfolded over the last several years.

Thalidomide was a drug prescribed to pregnant women in the late 1950s and early 1960s as a treatment for morning sickness. Unfortunately, the drug caused severe birth defects in thousands of children globally, leading to limb abnormalities and other serious health issues. The harmful effects of Thalidomide became apparent in the early 1960s, leading to its withdrawal from the market.

In Canada, survivors and their families initiated legal action against the drug manufacturers, seeking compensation for the physical and emotional harm caused by the drug. The cases were consolidated into a single Mass Tort due to the commonality of the issues.

Plaintiffs argued that the drug manufacturers were negligent in testing and distributing Thalidomide, leading to the devastating consequences for those exposed to the drug.

The Thalidomide case underscores the importance of product liability laws in holding pharmaceutical companies accountable for the safety of their products. It has also raised awareness about the need for rigorous testing and regulation in the pharmaceutical industry to prevent such tragedies.

A stated, the choice between a mass tort and a class action depends on the nature of the legal claims and the circumstances of the affected individuals. In the case of Thalidomide litigation in Canada, it might not have been suitable for a class action for several reasons:

1. Individual Circumstances: Thalidomide caused a range of severe birth defects, and the specific circumstances of each affected individual could differ significantly. Class actions are often more appropriate when the legal issues and damages are relatively uniform among the class members.
2. Complexity of Cases: Mass torts are often chosen when cases are complex and individualized. Given the varying degrees of harm caused by Thalidomide, a mass tort action might have been deemed more suitable for addressing the unique aspects of each claim.
3. Differing Damages: The damages sought by individuals in Thalidomide cases may have varied widely based on the severity of the birth defects and other related factors. Mass torts allow for more flexibility in addressing these differences.
4. Opt-In Option: In a class action, individuals are automatically included unless they choose to opt-out. In mass torts, individuals typically opt-in voluntarily, meaning they actively choose to participate in the legal action. This can be beneficial when there is a need to accommodate the individual circumstances of claimants.
5. Efficiency and Fairness: Mass torts may be more efficient in handling a large number of individual claims while still allowing for a case-by-case consideration of damages. This can strike a balance between efficiency and fairness, especially in complex situations like Thalidomide litigation.

Ultimately, the decision to pursue a mass tort rather than a class action is often based on the specific facts and legal complexities of the case, as well as the desire to ensure that the individual circumstances of each plaintiff are adequately considered.

If you or a family member has been affected by a matter that may give rise to a mass tort or class action, you can entrust your case with Campisi LLP. We understand the complexities involved in such situations and have a proven track record in guiding individuals through the legal process. Our dedicated team possesses the expertise needed to navigate the intricacies of Mass Torts and Class Actions. We recognize that each case is unique, and we are committed to providing personalized guidance on the best course of action for you. Let us advocate for your rights, seeking justice and compensation on your behalf. Your well-being is our priority, and our seasoned legal professionals are here to support you through every step of the legal journey.