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WHERE'S
THE HARM?
COURTS ARE INCREASINGLY PUTTING THE BRAKES ON CLASS ACTION
LITIGATION WHERE PLAINTIFFS HAVE INSUFFICIENT OR NO EVIDENCE OF
HARM, CLASS ACTION DEFENCE LAWYERS TELL AIDAN MACNAB
Feature
SWINGING FROM one extreme to
the other, "Class actions are oen like a
pendulum," says Emily MacKinnon, a
litigator and partner at Osler, Hoskin &
Harcourt LLP in Vancouver. Many courts
were willing to certify for a while in what
seemed like a "procedural bump in the road."
But that is shiing, she says.
"We're seeing courts apply a slightly stricter
standard and really requiring that there be
some meat to the action before they certify."
Product liability and privacy cases exem-
plify this trend, says Paul-Erik Veel, partner
at Lenczner Slaght and commercial litigator
whose practice focuses include class actions.
Courts have denied certification in
several product liability cases, despite a
potential risk and negligence, where class
members could not show they were out of
pocket or suffered any harm. For example,
privacy cases where personal information
may have been lost or accessed may also
require evidence that the information was
misappropriated, sold, or used.
"One of the roles of class actions that
they've evolved into is partially a substitute for
the regulatory system," says Veel. "We don't
necessarily have the most robust regulation in
a lot of areas, and a lot of enforcers are under-
funded, so private plaintiff 's counsel become
the way that defendants are held to account.
"And that's fine and makes good sense.
Except that courts are really starting to
push back on that role and say, 'Well, look.
You can't just sue someone because maybe
something went wrong or something bad
happened. It's still a lawsuit. You still need
to have a person or people or a class who
have actually suffered some harm.'"
Cheryl Woodin has seen many class
actions following disclosures from regulated
industries, including for privacy-related
issues in the securities space and for safety
recalls in pharmaceuticals, health devices,
and the automotive industry.
"e disclosure gets made. e class
action gets started. But then the court says,
where's the harm?" says Woodin, partner
and co-head of the class actions practice at
Bennett Jones LLP.
