In early July, Ontario lawmakers approved the Smarter and Stronger Justice Act, a wide-reaching law that seeks to modernize the province’s justice system. The act addresses numerous facets of Ontario law, but of particular concern to personal injury and medical malpractice lawyers is its impact on class action proceedings, which have taken on new urgency amid the COVID-19 pandemic.

Neinstein Personal Injury Lawyers is one of several Ontario law firms that have initiated class actions against long-term care operators who failed to protect residents from outbreaks. The Smart and Stronger Justice Act will make it more difficult to proceed with this type of legal action in the future by setting a higher bar for certification.

Under the new rules, class actions may only proceed if they are the “preferable procedure.” In the Act’s own words, that means they must be “superior to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant.”

It also stipulates that harms suffered by individual members of the plaintiff group must also have affected the other plaintiffs. The changes bring Ontario class action regulations in line with similar rules in the United States.

Personal injury and medical malpractice lawyers have been sharing concerns about the Act since early in the year.

“People who will be most impacted by this are consumers, employees and anyone who is in a normally vulnerable position that needs access to justice through class actions,” one lawyer told Law Times in January.

The Toronto Lawyers Association said certain elements of the law could be “devastating” to plaintiffs, according to a separate Law Times report from June.

In July, one Toronto lawyer told The Canadian Press: “Because the test is more challenging now, many cases will get dropped. Businesses could likely defeat them. Now if a company acts badly, that behaviour will go unchecked – and consumers won’t have remedy for harms they suffered.”

“Our courts simply aren’t equipped,” the lawyer continued. “What they have done is slam the door, in particular, on personal injury types of cases and haven’t opened any other doors.”

Combined with the Ontario Government’s recent proposal to limit COVID-19 liability for long-term care facilities and other consumer-facing businesses, the Smarter and Stronger Justice Act may limit access to justice for groups of injured customers.

If you or a member of your family has been affected by the COVID-19 outbreaks at Ontario’s nursing homes, contact Neinstein Personal Injury Lawyers today to schedule a free, no-obligation consultation. Our team of experienced medical malpractice lawyers will assess your case and provide guidance and advice throughout the legal process.

 

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Greg Neinstein