Weaponized Access to Justice: Staying Individual Actions Pending Certification of a Class Action

  • September 15, 2021
  • Jasminka Kalajdzic, associate professor | clinic director, Windsor Law | Class Action Clinic

Access to justice and judicial economy are two of the three axiomatic goals of class actions. The former represents the idea that financial, psychological and other barriers to the court system can be reduced by pooling resources in a single action, allowing individuals to sue when it would otherwise not be feasible. The latter refers to the efficiencies that can be gained when one action, as opposed to duplicative ones, are pursued against the same defendants.

Perhaps ironically, increasing access to justice may, in fact, reduce judicial economy in that class actions ‘stir up’ litigation that would simply never be brought on an individual basis. A recent decision by the Saskatchewan Court of Queen’s Bench reveals the tension between these two policy goals.

In Wasserman v Saskatchewan (Highways and Infrastructure), the representative plaintiffs in a proposed class action arising from the Humboldt Broncos bus crash sought an order staying Herold v Saskatchewan, one of sixteen individual lawsuits brought by survivors and family members of those killed in the tragedy. Most of the individual actions had been commenced prior to the class proceeding against many of the same defendants. The litigants in all of the other individual cases had agreed to hold their cases in abeyance pending the disposition of the certification motion in Wasserman.

The main argument advanced by the representative plaintiffs was that allowing one or more of the related civil actions to proceed in tandem with the class action could result in inconsistent judicial rulings and inconsistent verdicts. They submitted that the certification motion should be heard first (scheduled for April 2022) following which class members, including the Herolds, could opt out. The Herold plaintiffs strongly opposed the motion, arguing that their case was the first one to be filed, that they were ready for trial, and they would be prejudiced if forced to wait for the outcome of the certification motion.