In Ontario, claims for personal injury may be brought by way of individual action or mass personal injury litigation, namely class action or mass tort proceedings. An Individual action is the simplest method; however class action or mass tort proceedings may be appropriate in cases where a group of individuals were harmed in a like manner by the same or similar defendants.
What is the Difference?
An individual action allows the most control over the matter, however can get expensive as disbursements (third party costs such as court fees, medical documents, expert reports) add up.
A class action involves multiple plaintiffs whose claims usually arise from a common incident. Counsel receives instructions from an individual (or a small group) representative. The representative makes decisions on behalf of the class. If you join the class action, you will give up control of the litigation, but can benefit from pooling of resources. Class proceedings have to be certified by the Court.
A mass tort proceeding involves multiple plaintiffs with claims against the same or similar defendants; however the claims need not necessarily arise out of the same incident. Counsel receives instructions from individual clients. This allows clients to retain control over their matters. These proceedings benefit from case management and pooling of resources.
Which is Right for YOU?
The classic lawyerly answer – It depends.
Some factors to consider:
- Injuries: some injuries take longer to assess than others. The likely prognosis relating to a fractured wrist may be evident within a year of an incident; whereas the effects of a traumatic brain injury may take significantly longer to determine. Your matter may be ready to proceed much quicker than other plaintiffs.
- Litigation fatigue: litigation is a long process. It is not uncommon for individual actions to take 5-6 years to progress to trial. Mass personal injury litigation may take longer than that.
- Participation: individual actions require active participation in the litigation process. A class action is the exact opposite, member participation is low; the class representative handles the decisions and the Court oversees the litigation.
An experienced legal practitioner will be able to assess your matter, and suggest which is right for you based on your circumstances. Remember that lawyers are meant to advise you; however it is ultimately your decision of how you wish to proceed.