Recent Trends in How Plaintiffs’ Counsel Select Cases: Canada and the US

 Title: Recent Trends in How Plaintiffs’ Counsel Select Cases: Canada and the US
Word Count: 6,300
Referencing Format: McGill
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Assignment Subject: How do plaintiffs’ counsel select cases? Should we encourage
Canadian counsel to copy US actions?
Introduction
Class action lawsuits represent one of the most important, complex and dynamic areas of
legal practice. Importantly, class actions raise a number of questions with respect to not
only policy and constitutional issues, but also as a means of pursuing mass justice with
implications for plaintiffs and defendants alike. In general, plaintiffs’ counsel selects
cases based on merit and the ability of plaintiffs’ to pay associated litigation fees. From
the perspective of counsel, even where costs, funds and fee arrangements do not act as a
direct incentive for substantive claims, counsel in Canada typically select cases on the
basis of merit and those which are likely to be successful. The underlying rationale for
class actions harness the grievances of individuals acting within their collective interest,
who may not have the resources to pursue damage or claims individually. Accordingly,
the thesis will be argued that recent emergence of Third Party Litigation Funding (TPLF)
in the context of Canadian litigation, left unregulated, could result in a runaway market of
funders with little transparency, accountability or protection for the plaintiffs or litigators
who receive the funds. As a result, it will be argued that the commercialization of
litigation contains a number of ethical, philosophical, judicial and public policy concerns,
respective of that fact that funders’ interest in litigation is unlikely to yield an increase in
access to justice for litigants with human rights, civil rights or other public law based
claims.
This essay will explore how plaintiff’s counsel select cases to pursue in light of class
action law suits. In doing so, this essay will explore how the landscape of class action
litigation has changed in recent years, narrowing in on several key cases that have
permitted recent debates.
How Plaintiffs’ Counsel Select Cases: Canada
Class proceeding are unique from the traditional litigation proceeding in the way in
which a class retains counsel. Within civil cases, the when a claim emerges a client
suspects an issues and subsequently retains the advice of counsel, who in turn determines
whether or not the issue is actionable. However, in a class proceeding lawyers commence
a meritorious claim often without having an initial client bring the issue to their
attention.1
This is often done in light of media attention and/or scrutiny on a particular
issue. Hence, identifying actionable claims in a class proceeding takes a slightly
entrepreneurial turn, in the sense that plaintiffs’ counsel often seek out cases to bring to
court. In order to initiate this process, some class action lawyers also resort to public

1
Lisa C. Munro, “Who can be a representative plaintiff under Ontario’s Class
Proceedings Act, 1992?” Lerners LLP
(1 December 2014), online: Lerners LLP <
www.lerners.ca/content/documents/who_can_be.pdf>.
advertising concerning the investigation of a potential claim with a specific case in mind,
and ask for the public’s assistance in coming forward with new information and/or
claims.
This has led some to designate class action counsel as a form of “entrepreneurial
lawyering” because of willingness of some counsel to actively seek out meritorious
cases.2

2Kaitlyn MacDonell, “Ethics of Class Counsel: Is there a need for restriction on
investigating class claims? (1 December 2014), online:
http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147487887
Works Cited
Baert, K., & Mason-Case, S. (2009). Innovative Class Proceedings: Recent
Trends. In 6th Annual Symposium on Class Actions.
Kalajdzic, Jasminka, Peter Cashman, and Alana Longmoore. "Justice for Profit: A
Comparative Analysis of Australian, Canadian, and US third Party Litigation
Funding”(2012)." American Journal of Comparative Law 61: 93.
Kalajdzic, Jasminka. "Consumer (In) Justice: Reflections on Canadian Consumer Class
Actions"(2011)." Can Bus LJ 50: 356-at.
Kalajdzic, Jasminka. "Self-Interest, Public Interest, and the Interests of the Absent Client:
Legal Ethics and Class Action Praxis." Osgoode Hall LJ 49 (2011): 1.
Scott, Natalie C. "Don't Forget Me-The Client in a Class Action Lawsuit." Geo. J. Legal
Ethics 15 (2001): 561.