Description
Lara Khoury, Amelia Radke | McGill University | 2025
– ABSTRACT –
Recent health crises associated with climate change, the opioid epidemic, and CoViD-19 illustrate the pressing need for governments and other pivotal societal actors to engage in efforts to enhance health protections. However, critiques underscore these actors’ inability to implement strategies safeguarding health and well-being. Manifesting itself through an increase in class action liability litigation against public authorities, health industries, and healthcare institutions, the “judicialization of health governance” may stem from these shortcomings. We appraise whether judges adjudicating these cases view them as instruments of social change, which we define as transformations of behaviour, decision-making, and/or practices of actors capable of endangering or protecting health. To achieve this objective, we analyzed Canadian class action decisions alleging liability for health-related harms within the domains of healthcare safety, public health, health innovation, and environmental protection. We included decisions most conducive to policy discourse, resulting in a subset of 271 decisions, out of which 40 contained judicial acknowledgment of a societal role for class actions and offered partial insights into this mission. This judicial discourse emerges through the themes of, i) vulnerability, ii) resource, information, and power imbalances, iii) potential to influence behaviour, iv) function of public condemnation, and v) impact on collective rights. However, these themes provide a limited account of the contours of the social mission of health-related class action liability litigation. To assess concretely the extent to which these claims can participate in the protection of human health, it is therefore necessary to conduct a comprehensive analysis of courts’ interpretation of procedural and evidentiary requirements at all stages of liability class actions to evaluate whether they effectively enable victims of health-related harm to contribute to the regulation of risk-creating behaviour, and to investigate connections between health and environment-related liability class actions and broader industrial and public policy practices.
Author’s credentials and affiliations: Lara Khoury ([email protected]), Ad. E., DPhil Oxon, BCL Oxon, LL.B. Sherb.; Amelia Radke, LL.M. McGill
Corresponding author: Lara Khoury, Ad. E., DPhil Oxon, BCL Oxon, LL.B. Sherb., Full Professor and Canada Research Chair (Tier 1) in Civil Liability, Health Governance, and Social Change, Faculty of Law, McGill University, Montreal, Canada, e-mail: [email protected]
Disclosure: The authors have no conflict of interest to declare. This research is funded by the Canadian Bar Association Law for the Future Fund and the Canada Research Chair Programme (CRC-2023-00239).
Citation: Khoury, L.; Radke, A. (2025). Judicial perspectives on the use of class action litigation as a tool for health policy change. Canadian Health Policy, OCT 2025. canadianhealthpolicy.com.
