Introduction

• Author: Harvey T. Strosberg, Q.C.
• Pages: 1-3

1

INTRODUCTION

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