AuthorHarvey T. Strosberg, Q.C.
Harvey T. Strosberg, Q.C.
The Canadian Class Action Review’s first issue of 2010 features a variety of
interesting and informative essays. The authors of these papers offer insights
into such wide-ranging topics as: specific issues connected to waiver tort;
how class actions in waiver of tort might fare at trial; the measures that
might be considered by defendants to avoid or reduce class action exposure;
whether a preliminary merits review should be mandated as a requisite for
class certification in Ontario; the language of class action in Quebec; how
the liability regimes in Ontario compare to those under federal law in the
United States; the settlement approval process; and recent amendments to
the Canadian insolvency regime.
In the first article of this collection — “An Old Snail in a New Bottle?
Waiver of Tort as an Independent Cause of Action” — author Charles
Murray looks at products liability litigation and attempts to define the pos-
sible boundaries of waiver of tort. He posits that if waiver of tort survives as
a valid cause of action, the affect on products liability litigation in Canada
(as well as on any claim where tortious conduct produces a profit) will be
profound. Additionally, he believes that waiver of tort may lead to an enor-
mous potential future impact on both class and private actions.
Continuing on the topic of waiver of tort, H. Michael Rosenberg argues
in his paper, “Waiving Goodbye: The Rise and Imminent Fall of Waiver of
Tort in Class Proceedings,” that most class actions in waiver of tort would
likely fail at trial. In this 2009 Strosberg Prize-winning essay for the best stu-
dent paper on class actions, the author concludes that the doctrine of waiver
of tort has only limited application in the context of consumer class actions,
and substantive reform is necessary to ensure that these actions perform
the important function that that the Ontario Law Reform Commission had
envisioned in its Report on Class Actions.
“Strategies to Avoid or Mitigate Class Action Litigation,” by Ian F.
Leach, explores the ways in which a defendant might mitigate some of the

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