Class actions.

• Author: Bowal, Peter

The Elusive Simple Lawsuit

In any scenario, deciding a legal product liability dispute between two people should be a straight forward matter. The disgruntled consumer would simply meet with the manufacturer in a meeting room before a third party acting as a judge a few days after the complaint is first made. They should just be able to tell their stories to the judge, who would then apply the law and render a decision.

Instead, however, such a civil lawsuit is a highly intricate, formal, expensive, and time-consuming procedure. There are years of pre-trial maneuvers and machinations that cost thousands of dollars. The wrenching process is one which emphasizes legal strategy and victory, even over truth. It is rarely a fair fight. Some who have participated in the civil litigation system have lamented that this is a legal system, but not a justice system. Large corporate defendants, concerned about legal precedents, can be expected to expend a great deal of resources, and exploit any procedural advantage, in order to defeat any consumer claim made against their products.

The Implausibility of Individual Product Liability Litigation

Our world is complex and interdependent. The decisions and activities of large businesses manufacturing food, vehicles, clothes, electronic appliances, drugs, and the like affect millions of Canadians simultaneously. The information and resources of each individual consumer in the marketplace cannot begin to match the advertising and big business power. The same applies for the concentrated manufacturer's defence of any product liability lawsuit, regardless of how big it may be.

The cliche says that everyone should have one's day in court to resolve disputes, but we know that the process of getting to and through court is fraught with high risks, costs, and anxieties. Many people have relatively small claims in dispute. These include bank customers certain of overcharges, tenants in an apartment building complaining of poor maintenance, air travellers' dissatisfaction about the chronic delays of airlines, people distraught about technically inaccurate computer chips or over-zealous claims made about the value of their vocational training.

Each of these might only seek a few hundred dollars in compensatory relief. These are small wrongs inflicted upon many people by one person. The cost, commitment, and exasperation to each complainant to have that day in court would quickly outweigh success in a judgment for modest compensation. They would not on their own likely advance their claims, even where their claims would have been wellfounded in law and the collective recovery by all...