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Hernia Mesh Class Action

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Lawyers representing families alleging that Ontario based nursing home operator, Revera Inc., breached its duty of care to its elderly and infirm residents, announced last December that they would be discontinuing an application for class action and instead proceeding under a mass tort. This decision highlights what appears to be the increasing trend towards mass tort claims in the Province of Ontario and away from class action lawsuits in certain circumstances.

Like a class action, a mass tort involves multiple Plaintiffs, or people, who have been injured by the same defendant or defendants. The key difference between the two approaches involves the manner in which class actions and mass tort lawsuits are commenced and resolved.

In a class action, a single lawsuit is filed by a representative Plaintiff on behalf of an entire group of people who suffered harm as a result of the actions of a Defendant or Defendants. This means that the entire group of Plaintiffs are treated as one, and the lead Plaintiff sues the Defendant on behalf of the entire class. After the claim is filed, lawyers for the proposed class must bring a Motion for Certification.

Should the class be approved, an opt-out period for prospective class members is given. Individuals who fail to opt-out will be deemed members of the class. Regardless of the manner by which a class action is resolved, either by settlement or judgment, individual class members will be bound by the decision and damages apportioned based on the terms of the resolution.

In contrast to a class action, mass tort claims are filed individually on behalf of each claimant. As such, there is no requirement for the often lengthy and costly process of bringing a Motion for Certification before the Court. By avoiding the need for certification, Plaintiff counsel has the added advantage of being able to expedite the litigation process and in so doing, move to the Discovery stage sooner. In addition, lawyers representing Plaintiffs in a mass tort must only be concerned with the individuals who have retained their services and need not consider unknown class members.

In resolving mass tort claims, individual Plaintiffs are given the opportunity to exercise control over their own outcome. Plaintiffs are able to accept or reject a settlement offer, or make the decision to proceed to trial on their own issues. Damages are therefore assessed on individual circumstances and not on the basis of the group as a whole.

Given the increasing number of high-profile claims involving multiple claimants in our Province, it will be interesting to see how these competing approaches are utilized by lawyers. The Reverea claims are a good example where counsel has weighed the advantages and drawbacks of both mass tort and class action lawsuits, and elected to proceed by way of mass tort.

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