Launching class actions against the government and its institutions requires a different set of strategies from class actions against private entities.
Lawyers are educating themselves on how to tackle a defendant with unlimited resources but a vulnerability to public pressure.
“If you are going up against the provincial, federal or municipal government, pause and take stock before you start,” advises Joel Rochon, managing partner of Rochon Law LLP, a Toronto firm involved in the class action over the rail accident in Lac-Mégantic in 2014 that killed 47 people.
“The cost of moving forward can be extraordinary. You must ensure a strong likelihood of success. It’s not the type of defendant you try on for size.”
Eric Gillespie of Eric Gillespie PC, a litigation boutique in Toronto, compares the situation to David and Goliath. Gillespie focuses on public interest litigation such as the G20 class action.
“With a large multinational corporation, you can face a similar imbalance,” he says. “Your opponent is never going to run out of money or go out of business.”
David Rosenfeld, partner at Koskie Minsky LLP, who has worked on the plaintiff side of public class actions, also says plaintiff-side law firms don’t have the resources that governments do.
“The risk is that the government doesn’t make the same cost/benefit analysis that private defendants do. They may take a position because of the policy reasons behind it. It may appear to the plaintiff as an intransigent position, but it may be part of an overall policy decision that’s been made,” he says.
Gillespie says public law cases deal with different types of issues.
“Most obviously, the Charter comes up in most of these cases. You must turn your mind to the statutory legislation that is required to apply to government action,” he says.
Rosenfeld points out that the government is facing multiple responsibilities.
“There are often other factors in play. In a class proceeding against one institution, there may be 19 other institutions run on the same policy and procedures,” says Rosenfeld, whose firm has acted for clients who formerly lived in residential schools in Newfoundland or attended schools for developmental disabilities in Ontario.
“They would be concerned about the floodgates, but they also have to consider how particular litigation would affect them in terms of governing and operating institutions.”
Rosenfeld also says that, in regulatory negligence cases against the government, the court often takes into consideration that the federal and provincial governments have other policy issues in play.
“There is a broader weighing of facts that the government took to engage in a particular decision,” he says.
“For example, if they decide to fund a safe injection site, there are a number of policies that affect that. A lawsuit over whether or not they should have put a safe injection site into play recognizes that.”
Rochon says class actions serve as an important way of modifying behaviour and that policy considerations may also impact settlement discussions.
“There are pros and cons for the plaintiff. There might be a policy restraint on the ability to settle or they might want to be forced to pay damages,” he says.
“If there’s a hot button issue, they might want to address [it] for their political interests.”
It is in these situations that the role of the media becomes crucial for generating public pressure as well as for communicating with the public.
“Private class actions can have a large number of litigants, but government action impacts a broad group of people,” says Gillespie.
“The class is likely to be a very large group. That brings with it considerations of how to communicate and the media becomes a very important element. If there’s public interest, the media is interested in what’s going on and why you are suing the government, more so than with private class actions.”
Gillespie says that, often when there’s a large group of class members, the media becomes a vehicle to communicate to proposed class members or after certification — sometimes through paid announcements but more commonly through press conferences and media releases.
Gillespie says almost every case is responsive to what happens in the public arena.
“When politicians are forming governments and hoping to be re-elected, they are very aware of public relations,” he says.
Remedies are another area where public law class actions differ from private ones.
“When it comes to settlement, most private litigators simply want financial compensation,” says Gillespie.
“In public interest cases, public law remedies become very important to the client, such as declarations and government policy changes.”
Rochon says the implications of successfully litigating against a government actor are much greater.
“They have an exponential effect on a broader segment of the population. Action against the government reverberates across the entire government. Action against one province can affect all the provinces or the federal government,” he says.
“There is also an element of longevity. Judgments can be historic in nature. Once a practice has been modified, that behaviour could be changed. There is a deterrence effect when you bring a public law class action.”