Introduction

• Author: Craig Jones
• Pages: 1-6

CHAPTER

ONE

Introduction

Our law of

torts comes from

the old

days

of

isolated, ungeneralized wrongs,

assaults,

slanders,

and the

like, where

the

damages might

be

taken

to lie

where

they

fell

by

legal judgment.

But the

torts with which

our

courts

are

kept

busy

to-day

are

mainly

the

incidents

of

certain well known businesses.

They

are

injuries

to

person

or

property

by

railroads, factories,

and the

like.

The

liability

for

them

is

estimated,

and

sooner

or

later goes into

the

price paid

by the

public.

—

Oliver

Wendell

Holmes, Jr.1

A.

OVERVIEW

It

is now

over

a

century

since

Holmes's

recognition

of the

economic reality

of

mass tort cases,

and

twenty years since both

the

Supreme Court

of

Canada

and

the

Ontario

Law

Reform

Commission

offered unambiguous

endorsements

of

legislative reform

to

permit class proceedings.

A

decade ago, Ontario's Class

Proceedings

Act

came into force

and

lawsuits

for the

"non-isolated, generalized

wrongs" contemplated

by

Justice Holmes began

in

earnest.

The

dire scenarios predicted

by the

class action's most strident critics have

not

come

to

pass. Indeed,

a

student

of

developments

in the

field

of

mass tort litiga-

tion will

be

struck

by the

progress made

in

Canada compared with that

in the

United States

in the

last

two

decades.

Canadian courts have been able

to

avoid

some

of the

worst aspects

of the

American experience while designing

a

mass

tort resolution system that,

at

least

at

this early stage, appears

in

many ways more

robust

and

effective

than

its

southern neighbour's, even

as

differences

in

sub-

Oliver Wendell Holmes, "The Path

of the

Law"

(1897)

10

Harv.

L.

Rev.

457 at

467. Holmes originally delivered

the

paper

as a

lecture

on

January

8,

1897,

at the

dedication

of a new

hall

at the

Boston University

School

of

Law.

1.

1