Causes of Action in Mass Tort

• Author: Jamie Cassels - Craig Jones
• Pages: 102-166

2. Causes of Action in Mass Tort

A. INTRODUCTION

While the U.S. courts have, as we shall see in Part Three, vacillated over the

appropriateness of aggregate resolution of mass tort claims, virtually all of

the proposals for legislative reform in Canada have indicated that aggrega-

tion could assist the broadest possible variety of tort claims. When consid-

ering the causes of action available to a mass tort plaintiff, reference might

be made, for instance, to the Manitoba Law Reform Commission’s Report

on Class Actions, which gives an indication of the broad types of litigation

that might be furthered by class proceedings statutes:

Class actions are useful in tort cases for mass disaster claims (claims aris-

ing from single incident mass accidents, such as train derailments and

environmental disasters) and for creeping disaster claims (claims for bod-

ily injury arising from consumer products, such as tobacco and asbestos,

or medical products, such as intra-uterine devices, breast implants, con-

taminated blood, jaw implants, silver mercury fillings and heart pacemak-

ers). Other uses include “claims of group defamation, nuisance, the

principle in Rylands v. Fletcher, various statutory torts, damages claims for

breach of Charter rights, claims arising from illegal strikes, negligent

house construction, and negligent misstatement.”1

102

1 Manitoba Law Reform Commission, Class Proceedings (Report #100) (Winnipeg: Mani-

toba Publications Branch, January 1999) at 17–18.

The purpose of this chapter is to consider the various causes of action for

which mass tort claims might conceivably be brought.

B. INTENTIONAL TORTS

Most discussion in this book of sources of tort liability deals with tortious

conduct that falls, one way or the other, within the category of “negligence.”

However, this is not to say that mass tort liability cannot be founded on

intentional torts; it certainly can. Some torts, like deceit, are by their nature

often “directed” at large numbers of people. More commonly, there is

increasing acceptance that vicarious liability of corporations or institutions

can be founded upon the intentional torts of employees or volunteers.2

Relatedly, the action filed by victims of British Columbia’s eugenic ster-

ilization program framed their complaint (inter alia) in battery, as is cus-

tomary in cases of allegations that medical procedures were performed

without consent.3While the claim failed, the court appeared to recognize

that battery could, in certain cases, be appropriate in mass claims given suf-

ficient central direction.4

One intentional tort with a natural, but so far unexplored, application in

mass claims is that of “interference with economic relations,” or more com-

monly “inducing breach of contract.” In the recent decision of Verchere v.

Greenpeace Canada,5the defendant environmental group, and some of its

members, were successfully sued for unlawfully preventing licensed logging

by chaining themselves to equipment. The court awarded damages to the

plaintiffs, who were loggers prevented from working during the period of the

protest. While there were in Verchere only three plaintiffs, it is not difficult to

see how similar disruptions (either in the envronmental or labour context6)

could give rise to claims by hundreds or even thousands of affected workers.7

Causes of Action in Mass Tort 103

2Rumley v. H.M.T.Q., [2001] 3 S.C.R. 184.

3Malette v. Shulman (1990), 67 D.L.R. (4th) 321 (Ont. C.A.); Norberg v. Wynrib, [1992] 2

S.C.R. 226.

4D.E. (Guardian at litem of) v. British Columbia., 2003 BCSC 1013 at paras. 183–88.

However, such direction may actually require the establishment of agency or some

other form of vicarious liability, or perhaps concert in action, since the court found at

para. 185 that “[w]hatever force is required to constitute a battery must be applied

directly by the defendant to the plaintiff’s person. Battery is not committed where the

act of the defendant only indirectly affects the plaintiff (Non-Marine Underwriters,

Lloyd’s of London v. Scalera,[2000] 1 S.C.R. 551).”

5 2004 BCCA 242 [hereinafter Verchere].

6 See, for instance, Torquay Hotel Co., Ltd. v. Cousins, [1969] 2 Ch. 106 (C.A.).

7 The Court in Verchere,supra note 5, described at paras. 33–36 the elements of the tort

of interference in these terms:

Other intentional torts, such as misfeasance in public office, appear to

provide a fertile ground for mass claims, and, where appropriate, such

causes of action receive separate treatment in this chapter.

C. STATUTORY CAUSES OF ACTION

Many statutes, whether or not they have regulatory components such as the

Competition Act (discussed in more detail elsewhere in this book), establish

civil causes of action. Some are unlikely ever to become the subject of mass

tort litigation: for instance, the British Columbia Livestock Act,8provides for

strict liability for harm done by animals unlawfully at large on neighbour-

ing property. Others, however, appear tailor-made to address more wide-

spread harm, such as the liability that can result from nuclear accidents in

the federal Nuclear Liability Act.9In British Columbia alone, a cursory

review of the statutes reveals civil causes of action relating to the operation

of mines,10 pipelines,11 securities,12 and the practice of architecture,13 to

name but a sample. It is certainly possible to envisage the breach of any of

these statutorily created standards giving rise to numerous claims.

It is not our intention here to canvass each statutory cause of action

and its possible application in mass tort contexts. However, the student and

practitioner are well advised to review all regulatory statutes concerning the

activity in dispute to see whether a civil cause of action has been provided

(or restricted) by statute.

THE LAW OF LARGE-SCALE CLAIMS104

1) that the plaintiffs had a valid and enforceable contract at the time of the alleged

interference;

2) that the Defendants knew of the existence of that contract;

3) that the defendants, by unlawful (wrongful) means, caused the breach of the plain-

tiffs’ contract;

4) that the Defendants intended the breach of the plaintiffs’ contracts;

5) that the Plaintiffs suffered damages as a result of that interference.

8 R.S.B.C. 1996, c. 270, s. 11.

9 R.S.C. 1985, c. N-28.

10 Mines Act, R.S.B.C. 1996, c. 293, s. 17.

11 Pipeline Act, R.S.B.C. 1996, c. 364.

12 Securities Act, R.S.B.C. 1996, c. 418, s. 131.

13 Architects Act, R.S.B.C. 1996, c. 17, s. 66.