ROBERT B. BELL

ASCC CONFERENCE 2013

Aggregation of Risk through Class Actions 

and other Modern Minefields for Colleges

Class Action Lawsuits

Even with enterprise risk management system in place,

Expect the Unexpected

CREATING A LIVING NIGHTWATCH

This is one of Rembrandt's most famous paintings, from 1642, Nightwatch which is owned by and on display at The Rijksmuseum in Amsterdam. 

CREATING A LIVING NIGHTWATCH

• A few week's ago, to draw attention to their collection, the museum created a kind of flash mob at a busy mall that became a living tableau of Nightwatch. Take a look: (right click on link and open hyperlink)

• http://www.youtube.com/watch?v=a6W2ZMpsxhg  

Count on Controversy Arising

• It is not possible to avoid all risk. The College will be measured by what is done when, not if, something happens.

Areas that should catch your attention:

• International Operations• Political Rallies• Anything to do with Religion and Security, i.e. Demonstrations• Anything to do with Government Bureaucracy• Abuse• Spread out Institutional Bureaucracy• Lack of Awareness of Applicable Legislation• Occupier Liability/Personal Injury• “Negligent Teaching”

Areas that should catch your attention:(Contd.)

• Course Descriptions• One-on-one handling of Student Complaint• Any Student Complaint which might have a

common theme to others• Preparation of Waivers / exculpatory

language• Reputational Risk – Social Media• Overtime Claims

Causes of Action against Colleges

• Negligent Misrepresentation• Breach of Contract• Tort• Consumer Protection Remedies• Human Rights Tribunal• And much more … 

Example : Claims against Federal Government for Loss of Student Loan Hard Drive• Damages for breach of privacy and intrusion seclusion;• general damages for negligence;• damages for breach of contract;• Damages for intentional breaches of privacy and rights; • damages for breach of statutory duty;• Damages for breach of trust;• Damages pursuant to section 24(1) of the Charter of Rights

and Freedoms;• Aggravated, punitive and exemplary damages;• Declaration that the Defendant is vicariously liable for the

actions of the Defendant’s employee(s) in the loss of the external portable hard drive.

Class Certification Requirements• Putative Plaintiff has Cause of Action against the

College• There is an Identifiable Class of Students with

Claims• There is a Basis in Fact shown to Establish

Common Issues to advance Class Claims• A Class Action is the Preferable Procedure• The Proposed Representative Plaintiff has a Viable

Litigation Plan

Class Certification Requirements (Contd.)

• Key point on common issue analysis: Predominance of common issues is not the test. If there is a single issue which “sufficiently” advances litigation for the class, certification is probable

• Overarching considerations to certification include:• Judicial Economy• Access to Justice• Behaviour Modification

Class Certification Requirements (Contd.)

• Uneconomical claim becomes economical to pursue

• Ontario judges favour certification; one of the easiest jurisdictions in North America in which to gain class action status for claims

Incentives to Plaintiffs’ Counsel

• Real incentives to plaintiffs’ counsel to pursue class proceeding:

multiplier, contingency, funding

Incentives to Plaintiffs’ Counsel

• Class Proceedings Fund of Ontario• Plaintiffs are indemnified for cost awards

against them• Plaintiffs get funding for disbursements• Plaintiffs pay 10% of settlement or judgment

Overall Impact

• Certification of many claims has led to settlements to avoid risk of aggregating exposure to multiple claims

• Pendulum needs to move away from “drive by certification”

• Students have lots of power with aggregation of claims

Production of Electronic Data

• Each party in litigation must locate and identify all paper and electronic documents relevant to a matter in issue that are in the party’s possession, power or control

• Early experiences in Canada with e-discovery have been marked by very expensive and time consuming burdens in preserving and producing electronically stored information in litigation

Production of Electronic Data (Contd.)• Begins with delivery or receipt of demand for

preservation of all relevant documents, whether paper or electronic, including email, instant messaging or other communications.

• Counsel and well-informed IT staff must understand:• Document creation and storage systems in workplace and

outside workplace• File retention policies and document destruction realities

• Must put litigation hold in place

Production of Electronic Data (Contd.)

• Resources are needed to preserve documentation

• Resources are needed to search documentation to identify relevant documents and identify privileged documents

Production of Electronic Data (Contd.)• Changes to Rules of Civil Procedure will attempt to restrict

scope of production and introduce concept of proportionality to limit costs

• Rule 29.2.03 of Rules of Civil Procedure, Ontario• Factors to be considered by Court on production

request include :1. Time required to produce2. Expense to produce3. Undue Prejudice4. Interference with orderly progress of action.

Corporate Risk

• Cost • Exposure caused by harmful

communications

• Corporate Risk Management• Culture of thoughtful communication• Appropriate file retention policies• Including e-discovery requirement in technology

purchases

CONCLUSION

• Lots to “watch” for, day and “Night”• Class Actions are real, expensive to fight• May impact insurance premiums and

coverages• But best philosophy –

If wrong … put it right If right … then fight

Questions?

THE END