and behaviour modification3) and the empirical objectives of tort law (pri-
marily compensation and deterrence4) better than will thirteen provincial
and territorial classes. We expand briefly on these premises in this section.5
The class action is superior to an individual action where it permits
similarly situated plaintiffs to pool litigation resources, approaching the
economy of scale that defendants in multiple related actions enjoy as a
matter of course.6Any unnecessary subdividing of the single class action
into smaller actions will sacrifice some of the litigative efficiency of the
whole, even where plaintiffs’ counsel cooperate in bringing multiple
provincial actions.7In province-by-province certification, per-claim litiga-
tion costs will increase for plaintiffs at a greater rate than defendants,8set-
Interjurisdictional Class Actions 435
5 For a much fuller discussion of the economic effects of claims aggregation, see Craig
Jones, Theory of Class Actions (Toronto: Irwin Law, 2003).
6 The idea that mass tort defendants treat large-scale claims as a “virtual class action,”
spreading per-claim litigation costs over all classable claims, was developed in a series of
canonical articles by Harvard’s David Rosenberg. See David Rosenberg, “A ‘Public Law’
Vision of the Tort System” (1984) 97 Harvard L. Rev. 849; David Rosenberg, “Class
Actions for Mass Torts: Doing Individual Justice by Collective Means” (1987) 62 Ind. L.J.
561; David Rosenberg, “Of End Games and Openings in Mass Tort Cases: Lessons from
a Special Master” (1989) 69 B.U. L. Rev. 695; David Rosenberg, “Individual Justice and
Collectivizing Risk-Based Claims in Mass-Exposure Cases (1996) 71 N.Y.U. L. Rev. 210.
7 For discussion of informal aggregation strategies, see Howard M. Erichson, “Informal
Aggregation: Procedural and Ethical Implications of Coordination among Counsel in
Related Lawsuits” (2000) 50 Duke L.J. 381; see also Michael A. Eizenga, Michael J.
Peerless, & Charles M. Wright, Class Actions Law and Practice (Toronto: Butterworths,
1999) at §2.5 (describing the Australian experience with group litigation strategies).
For a criticism of the “litigation network” approach, see John C. Coffee, “Rescuing the
Private Attorney General: Why the Model of the Lawyer as Bounty Hunter is Not
Working” (1983) 42 MD. L. Rev. 215 at 239–41, nn 56–57. See also Charles Fried &
David Rosenberg, Making Tort Law: What Should be Done and Who Should Do It
(Washington D.C.: AEI Press, 2003) at 90 (“the combination of high costs of organiz-
ing and monitoring collaboration compounded by agency problems and strong incen-
tives for free-riding converge to preclude plaintiffs’ attorneys from efficiently
achieving the maximum scale economies required for deterrence purposes”).
8 This is tautological; forcing any class to subdivide and litigate separately will necessarily
increase per-claim litigation costs. Subdivision of a classable claim imposes extra per-
claim costs on plaintiffs to a greater extent than on defendants, who will treat common
issues — e.g., whether a product was dangerously defective — as a single question,
regardless of the number of jurisdictions in which they are defending the product.
Defendants can employ the same experts, use the same legal research, and even employ
the same lawyers in each jurisdiction where the issues are common — i.e., otherwise
“classable.” Litigation efficiencies automatically accrue to defendants in these circum-
stances far more than plaintiffs, who can at best effect only an imperfect economy of
scale between jurisdictions. David Rosenberg, “Mass Tort Class Actions: What the Defen-
dants Have and Plaintiffs Don’t” (2000) 37 Harv. J. Legis. 393 (exploring the “structural
asymmetry” inuring to the benefit of mass tort defendants absent optimal aggregation).