Suzanne Chiodo

2Hi Pulat, pleasure to be here, thanks for having me.

4Yes,

6Yes,

8From actual England. Yes, I'm not trying to, I'm not trying to say I'm not a Francophone, even though I'm not. No, that's actually— I'm English and Canadian. That's what I mean.

10Okay, okay. So this is what makes me laugh. When, when people ask me where I'm from, I, I don't really know how to answer them. Like, define from? So I wasn't born in England, and I'll get into that in a second. I wasn't born in England and I have passports from more than one country. So when, when people say, oh, where did you grow up, then I say England, but I wasn't born there. And then they say, well, where's your passport from? As if that's a defining question. I say, well, I have two passports, one from England and one from Canada. So I was actually born in New Jersey, of all places, the United States.

11My dad worked in Manhattan. And and so we left there when I was two. So I don't consider myself American at all. And and then people say, oh, well, then you moved to England when you were two. Well, no, then I lived in Italy. And I was bilingual in Italian and English. I learned them both at the same time. And so we lived in Milan until I was about 7, and then I moved to England. So I, I consider myself English. I used to consider myself English. I guess I still do, more than I consider myself Canadian. But I never really felt that English either. So it's— I'm sort of a mongrel in terms of heritage, although my parents are English and You know, I can probably trace my roots back to various places in the south of England, several generations.

12But I never— when I was a child growing up in England, I started out with an American accent. Everyone made fun of me, and I deliberately lost my accent. And then I get to the age of 25 and I move to Canada, and everyone loves my British accent. And some people make fun of me, but then I just think, no, I've already lost one accent because people made fun of me. I'm going to keep my British accent. I don't care. And I'm not trying to make myself look sort of underdog-ish or anything. I'm not— I'm pretty privileged as immigrants go. But, and, you know, I'm a Canadian now, I'm not an immigrant anymore.

13But it's just, it's interesting when you come from lots of different places and people can't peg you. They don't— sometimes they don't like that. So I prefer to be a woman of mystery. Let's, let's go with that identity. I like that one.

15Right, so it's nothing to do with the fact that I lived there when I was young. It's I married an Italian-Canadian who was doing his PhD in England, so he was doing his PhD in England and I met him there. And then about a year after we got married, we moved here. So he calls himself Italian, but I make fun of him because he's never actually lived in Italy and He's never been bilingual in Italian, so I— now I'm the one who makes fun, but I technically know Italian better than he does, and I've lived there, so I call him a plastic Italian, and I consider myself the actual Italian, which is really weird.

16I don't look Italian at all.

18Yes, citizen of nowhere.

20He worked for Chase Manhattan Bank. I don't know where in Manhattan. I do think it was the World Trade Center, but it was still standing then, which marks me out as relatively old these days. So

22No, no, I'm a first-generation lawyer. I didn't, I didn't even think of that as a thing honestly until people started talking about it as a thing. I, I'm the first and only person in my family to be a lawyer. He's what does he do? It was sort of software engineering. I never really knew as a kid. He did lots of software networking things. He's an IT guy. So

24The answer to both questions is no. So how do I— it's strange to talk about your parents on a public podcast because, you know, it's— people have complicated relationships with their parents. But I was always encouraged to do well at school. But my brother was always smarter than me. So he, I would say he was the one who got encouraged more and I competed with him. So I sort of blazed my own path that way. And when I say my brother, I mean my twin brother. So we are both at the same, in the same grade in school. So we, I have a twin brother. He's brilliant. He's a numbers guy. He's an actuary and I'm the words person.

25So he did very well at school. And I did very well at school, but I was always slightly behind him. And so I did well at school because I was competing with him all the time to try and keep up. And so I was never encouraged to go to Oxford, never even crossed my mind. What happened was— gosh, it's really weird to talk about myself and know that people can just watch it wherever— but when I was 40— well, so when I was 12, my parents divorced. And then when I was 14, my mother passed away. So after that, we were raised by my aunt. And my aunt is a superhero. She is an absolute superhero.

26And if she hadn't stepped in, I wouldn't be where I am today. And she's the one who encouraged me to go to Oxford. So it never even crossed my mind. I'd never thought I was clever enough. I, you know, if you'd asked me where I should go, I would've named a perfectly respectable university in England, but not Oxford. And she said, no, you should go, I think you can get in. And she encouraged me and she helped me and I got in. So she's basically my hero.

28Yeah, thanks. Yes. And when I talk about it, people get funny and awkward and things, but it's just, it's just part of my—

30Yes, well, it's actually called a DPhil because Oxford has to be different from everywhere else, but it's essentially a PhD. It's called a DPhil though, Doctor of Philosophy.

32I was, yes.

34That's right, yeah.

36No,

38not an exhibitionist. Okay,

40Okay, so oh wow, this is going back to sort of Oxford tradition. So in Oxford you have— I think the sort of everyone is a reader, every undergraduate is a reader. I think that's right. I'm not really sure. No, they're a commoner. Gosh, it's so stratified. So the undergraduates who are just, you know, normal undergraduates are called commoners. This is going to sound so foreign to Canadian ears. And then if you get a— if you do very well in your first-year exams, which are called Moderations or Mods, if you do very well, then you get a scholarship. That's for people who've got a first, which is the very top grade in your Mods.

41So then you're a scholar. If you almost got a scholarship but didn't quite, then you're an exhibitioner. You get an exhibition, which is like a— it's like a scholarship, not quite as good. So I am an exhibitioner, or I was an exhibitioner at Oxford, and that means you get to wear a cool gown. So not only is it stratified by sort of title, I guess, except nobody goes by those titles, but anyway. It's also stratified by dress, and people have campaigned against this for various reasons in Oxford over the decades. But essentially, a commoner's gown is a short, almost like a waistcoat, black gown with sort of weird tapered bits on the side that used to be sleeves but now are just— it's sort of like the symbolic thing that you get on the back of your lawyer's gown.

42And then scholars and exhibitionists can wear the full you know, black gown with puffy sleeves that you see at graduation ceremonies and things. So then you go to your next exams and you're wearing the big scholar's gown and you sort of feel a bit more confident because you're already a cut above the rest of it. It's very, very stratified. And some people say that it sort of encourages, I don't know, discrimination or bias or something like that. I mean, I don't really know. I just, I wore the gown because I was allowed to and it was cool.

44I've never really, I've never read a full Harry Potter book.

46But I have been to the Harry Potter World at Warner Brothers Studios in London, which is amazing. Highly recommend. Their Butterbeer is delicious. But what makes me laugh about Harry Potter is that so much of it— oh gosh, I'm going to sound so weird and posh and English now— but so much of it is part of how I grew up or part of my experience. So all the North Americans are watching it going, "Oh my God, Harry Potter, they're all sitting there on a bench eating their dinner and they all wear these gowns and look, he comes from this pokey little house in the middle of nowhere." I grew up in a pokey little house in the middle of nowhere, and then I went to a college where I wore a big fluffy gown and sat at a bench eating, you know, that all that is part of my experience.

47So it wasn't in a very, very cool looking castle, I have to admit but— and I didn't learn any magic spells more's the pity. I should ask for a refund of my tuition. But it's just so— it's just so funny that so many parts of Harry Potter— and I'm sure they're part of J.K. Rowling's experience, which— or people she knows, which is why she sort of lumped them in. And another part of the Harry Potter sort of genre is the boarding school, you know, the— they all have their trunks and they put them on a train and they go to school and they stay at school and they have these feasts with all their friends.

48And, and those are part of all the boarding school stories that I read growing up, and I'm pretty sure they're not part of the general reading material for kids now. But, you know, when I, when I see Harry Potter, I recognize all those all those tropes, I guess. Yeah, so

50I know, I have. I just— it sounds so weird talking about myself like this because Canada is so different, but I feel like I'm part of Canada as well. So,

52Well, that was quite circuitous really, because now let's see. So I finished my— this is going back into the, into the archive— so I finished my undergraduate at Oxford, and then there's really not much you can do with a history degree except become a historian. So I decided to do an additional qualification as a journalist. So I did a diploma as a journalist. And then I worked at various places. It's hard to get a full-time job as a journalist even back then. So I worked at various places and, you know, I mostly freelanced, to be honest. I was really a freelancer. I did some internships, bounced around a bit in England. And then we moved to Canada where I tried to be a journalist as well, with a relative degree of success.

53I was still freelancing, but I had a regular gig at the Hamilton Spectator and things like that. So, and at the same time, I mean, I don't know, people look at me in my pearl earrings and my professor job and then my English accent and think that, you know, I'm sort of sitting on a nice, you know, fluffy cushion in my nice little house. And, you know, but it's just I've had so many experiences of different parts of life. I've always been— I think I've always had people looking out for me, so I've never been, you know, underprivileged or at risk or anything. But when I first came to Canada, I, as well as my journalism, I worked in an at-risk youth shelter in Hamilton which is about as grungy as it gets, I think, at least in the south, southeastern, southwestern Ontario.

54And and, you know, so I worked in the breakfast program and I cleaned up the food bank and I scraped dead mice off the floor and I cleaned the toilets and, you know, I did all of that stuff as a volunteer. I did get paid eventually because I wanted something to do and there the journalism work really wasn't filling all my time. So, you know, I've— and I've talked to people who've been through horrendous experiences. And so I've seen the sort of less, I guess, attractive side of Canadian life as well. People who've really— yeah, I mean, I was amazed by them. I worked in the breakfast program and it was always such a great start to the day because you have these youth coming in and, you know, they might have had a bad weekend or a bad day before, but in the morning, they're— They always come to the breakfast program and say, okay, today is going to be good.

55Today is the day I'm going to look for a job or do this or do whatever, sort myself out. And it was always really positive and upbeat, and I really enjoyed talking to them. So I think that was a good— that was good sort of grounding in Canadian life because, you know, I didn't want to just come here and find a job and just be sort of insulated from all that. So I mean, I might have— if I'd gone straight into a full-time journalism job, I might not have chosen to do that anyway. So I'm not going to be disingenuous about it, but, you know, I thought it was a really good start to, to my time in Canada, actually.

57oh, but I didn't— sorry, I didn't finish the story.

59No, go ahead. So and so I was doing that and the journalism until I applied to law school, actually. And so, because I thought, well, I can't do this for the rest of my life. I suppose I could have done, but it wasn't— I wasn't really making any money and I wasn't really going anywhere. So I thought, well, I have to find some way of retraining in Canada then. And so I thought, well, I could do anything. And so I— what did I do? Oh, I took a practice LSAT. So I thought, well, you know, if I do well at that, then maybe I'm supposed to do this. And I did really well on my first try, and I thought, oh well, maybe I'll take the real LSAT then.

60So I took the real LSAT, I did really well, so I thought, okay, then I'll just apply to law school and see how I do. And then I got into law school and the rest is history. So it was kind of almost accidental— not almost, but yeah.

62Probably because he did terribly. No, no, no, I'm just— he's got a sense of humor.

64Yeah, that's right.

66That's correct, yep.

68I saw the CIBC decision.

70Unfortunately, I did not work on that case, so I kind of wish I had now.

72I think it's a fair assessment, but I wouldn't say there are no surprises up my sleeve. I mean, life always throws things, right? I mean, who would have expected— where are we, February 4th? Who would have expected 2 years ago that we'd be in still— not even in the middle of a pandemic. Nobody even in February 2020 thought it was going to get as bad as it did, the COVID pandemic. So there's— life always throws surprises. You know, I didn't think I'd have an 8-month-old son by now 2 years ago. There's always things, there's always surprises. But yes, I would say since I stepped foot into Western Law School in September 2008, wow, I would say my circuitous— am I even pronouncing that right— route was over.

73I mean, as soon as I started law school, I knew that that's where I wanted to stay. I wanted to stay in the law. In fact, from my first week, pretty much, I knew I wanted to be a professor. So although that's taken a bit of a winding road, you know, I practiced— intentionally I practiced for a few years because I wanted to get that practical experience. And then, you know, I sort of went back and forth to England and did my PhD, DPhil, whatever. But throughout all that, I've had, you know, where I am now in my mind. So I would say yes, this is, this is where I'm at. Does that make sense?

75Wow. Do you mean what do they do all day, or who are they as people, or What is their role in society? That's, that's quite a general— all three of those things? I don't know.

77that's a very good question.

79From my own perspective, and people will disagree with this and that's fine, my view is that legal academics at least, and I can't speak for other areas of academia, legal academics are there to— I don't want this to come across the wrong way— do the thinking that lawyers don't have the time to do. So lawyers are, you know, most lawyers I know are flying by the seat of their pants, and quite frankly, we all are. But they don't have— they're not paid to sit down and think. They're paid to move cases along, appear in court, discuss with their clients. You know, they'll use precedents for pleadings and things like that, factums, because they don't have— you can't really bill for sitting there thinking about, well, what, you know, What is the real meaning of unjust enrichment?

80Or why is it acceptable here but not here? Or that kind of thing. They don't have the time to think about that kind of thing. And they don't have the time to sort of go to CanLII and look up all the cases and say, well, this is the number of cases in which pain and suffering damages were awarded, but there was this amount but not this amount. And what can we get from this empirical analysis? They don't have time to do all that, right? But that information is useful to them. And I've talked to lots of practicing lawyers who say, I would really love to know, oh, for example, the impact on the courts, the impact on times to get to contested motions or trials as a result of COVID or the rise in delays or whatever in trials or other hearings, that kind of thing.

81So they would love to know all that, but they don't have the time to look at all that because they're just busy surviving every day and pursuing their practices, and that's their job, that's what they're supposed to do. And I don't think then their clients would be too impressed if the lawyer came back and said, well, I don't have an answer to your question, but I do know why, I don't know, we call it, we call one thing battery and one thing assault in tort or something like that. The client would be like, so what? But that information is, it can be important to lawyers, right? So that's what legal academics are for. We're here to do the thinking for you.

82And that sounds kind of patronizing because lawyers think too, but we can sort of go more in depth and address issues that probably bother lawyers, but they don't really have the time to address them fully. And some people are going to disagree with that. Some people are going to say, we're not here to really serve the legal profession at all. We're here to, you know, educate future lawyers and give them a good doctrinal grounding, and then they can go do whatever they want to do if they want to sweep the street or they want to become a Supreme Court justice or whatever, that's fine, but we're here to impart knowledge and that's it, and do research and various doctrinal things.

83I know people who think like that, and that's fine, but I don't think like that. I think we're here to sort of be the brains of the legal profession.

85profession— And don't quote that out of context. Lawyers have brains too. They think a lot too, okay?

87Are the brawn? I don't know.

90And that's another really important question. I mean, I think, I think the days of, of valuing— and you know, a lot of academics do value academic research in its own right as good, and they don't have— they don't feel like they should have to justify themselves to anyone in terms of sort of the value of their work product or anything like that. But, and, you know, I'm not, I'm not judging either either point of view. But I, I do think law school fees are very expensive. They pay for not just the teaching but also the research that the academics put out. And so the graduates of those law schools should be able to use the work product of those academics, I think.

91And society at large, because universities are there to also serve the community, should be able to use that output as well. So I think that's, that's a really good point. And I think the way I put out my work product in articles, and I try to make my articles open access, relevant and I don't, I don't know how else I can really sort of promulgate my articles that much. I mean, I'll put them on SSRN and things like that, but They're not really the kind of thing that I— or I put links on social media, that kind of thing. So it's— that's sort of as far as I go in terms of promulgating my written work product.

92But I also do things like I do a lot of stuff with the OBA. So I do the class actions colloquium and things like that. I'm on the class actions executive. So that helps sort of disseminate my my research and my thinking to the wider profession. And I do want to work more on disseminating my research to the wider community as well. So, and I'm really only starting to get into this side of things, but I think the Class Action Clinic at Windsor is a really good example of that, where they, they sort of take the, the research that the professors and the students do and then help class members to pursue their rights and to make claims.

93I think that's amazing. So that kind of thing where you sort of use, use the deeper thinking that you've acquired and then use it to help the community through clinics and experiential learning, and it also helps the students, that's really good as well. So I think that's where academics can really add value.

96I think that's incredible. I, I do think it's the exception though. I mean, when I first saw that, I just I just thought, wow, go Lenczner. That's really great that they've sort of created the space to be able to do that. I think a lot of law firms either don't have the resources or the willingness to do that. So, and that's mostly what I was thinking of when I said that academics can sort of fill that gap and do some of that deeper thinking. But yeah, I mean, I think there are a few lawyers who are, who would make very good academics, and they just have chosen not to go down that path. And Dash is one of them.

97So I think that's— his whole LEAVE model is, is really great. And yeah, I think academics should do more of that kind of thing. I mean, like I said, it's, it's very expensive to go to law school, and, and law schools, I think, should serve the communities in which they're placed. And so we really can't sort of— I'm going to get stones thrown at me for saying this— but ourselves and say, no, I'm just doing research for its own sake, and, you know, it's very interesting that we now know, you know, this, the origins of this doctrine that no one ever— no one has ever used for ages, etc., etc. Like, you have to be able to— and I'm not saying that kind of research is completely irrelevant because you can apply it to modern-day things that are going on, but you have to be able to somehow tie in what you're doing to what the community is wrestling with right now, or some aspect of the community is wrestling with right now, because we're— I kind of feel like we're at a turning point in our world and our society, and we need to all sort of pull together and do the important work of figuring out questions and and contributing rather than sort of sitting in our ivory towers and working on our little pet projects that maybe one person is going to read.

98That's really what I think.

100I don't think data is the be-all and end-all. I mean, I think you can have purely doctrinal analysis. You can have more sort of qualitative thinking you could have more sort of evaluative writing. I think that's all fine. I do think that big data is useful and we should be using more. We should be using it more. I wouldn't say that— I mean, this is a growing trend in academia where you get these sort of labs and they're getting these data points together and analyzing them and things like that. So there's a lot of that at McGill, for example. I think Queen's has one as well. So it is growing, but you're right, we do need to use that kind of thing more.

101I think one of the big— not drawbacks— barriers to that is the lack of data collection in our court system. It's really hard to find, for example, how long it takes a case to go from statement of claim to final judgment, if it does go to final judgment, or what percentage of statements of claim that are commenced do go to final judgment, or what happens to them, why, and things like that. Or what percentage of legal disputes don't even reach the claim stage. It's really hard to get all that kind of data. So it's hard to analyze it. We're reading things like CanLII, which is amazing, but it has its limits in terms of what information it can provide.

102So I think we need to work more on the data collection, and our court service needs to work more on the data collection. Instead of, you know, if I wanted to find out— I had someone come to me recently and say, oh, you know, I want to find out what percentage of claims in Canada have sought this kind of damages and where have they been awarded and stuff like that, you know, where should I go for that? And You know, really there's— to get kind of detailed information, you have to go and get the claims through FRANK, and even FRANK is not a very good— as the Law Commission of Ontario found when it was doing the Class Actions Project, FRANK is not a very thorough or consistent way of collecting information or data.

103So we really need to work on— and I think the Courts Administration Service is sort of working on better data collection and better sort of end-to-end management of things like that. But we really need to work more on getting the data, and then we can work on the big data. Because big data is just lots of data, but it's only, it's only as good as the data you collect. And so if the data you collect is crap, then probably the results you get, you get aren't going to be ideal. So that was a very long-winded answer, sorry.

105Great.

107I think that's fair. Yeah, I mean, I'm also interested in— I'm also interested in the way that claims are pursued through the courts and the sort of access to justice implications of that, and who— the sort of rising cost and delay in getting claims heard. So I'm interested in sort of the administration of justice as well. But yes, class actions are my main interest.

109Yeah. Oh yeah, no, I, I teach civ pro all the time. That's, that's another of my main things. So I, I love civil procedure as well. So I, I would say the administration of justice and civil procedure are very closely intertwined. So

111Yeah.

113I think— can I take a sip of tea before I answer that question?

115going

117Of course. So history was my undergrad, and history suffers from the same problem that civil procedure does. Everyone thinks that history is about memorizing dates when history is much richer and thicker and more interesting than dates. Everyone thinks civil procedure is about the rules, and yes, it is about the rules, but it's not just, you know it's not just about, you know, Rule 49 offers to settle or whatever, that kind of thing. It's, it's much, much, much more interesting than that. And so The rules of civil procedure, I would say, sit within a wider web of dispute resolution in our society. So you have to really sort of draw back, not just pick at the minutiae of the rules, but actually draw back and see where do the rules sit in our society and, you know, what role do they play in the wider web of dispute resolution?

118What, you know, is pursuing a dispute through the courts the only solution, or what other solutions are there, and how do the rules sort of work with those other solutions, or respond to those other solutions, that kind of thing. And so if you just say, oh, you know, saying history about the dates is about the dates makes history boring, right? And it is boring if it's just about the dates. But if you look at why people acted the way they did and how their actions affected other actions and how that sort of worked within the wider sort of cultural and social context of what was going on at that time, it's way more interesting.

119And it's the same with the rules. If you just look at, you know, Rule 49, offers to settle, or, you know, Rule 21 or Rule 20 or whatever, it's going to be much less interesting than if you say, well, why do we have motions to strike? And what role do they play in the sort of dispute resolution context? You know, what interest is there in a court answering a question sooner rather than later, or determining whether a claim should be pursued sooner rather than later, you know, what wider systemic issues does that address? And then you can look at things like access to justice and the cost of disputes. Who has access to the dispute resolution system?

120Why do some disputes go towards arbitration or mediation or whatever rather than through the courts? If they do go through the courts, What equity questions are there? You know, do some people get their disputes resolved sooner and why? Do some people get their disputes resolved more in their favor and why? And you can ask those kinds of really sort of societal questions in the context of the rules, but you're not just memorizing the rules because memorizing the rules is boring, people. And this is the great thing about civil procedure, teaching civil procedure. In all my student evaluations, not all of them, but in a lot of them, the students sort of say, "I was expecting it to be so boring."

121And it's great as a teacher. Nobody comes to civil procedure with high expectations, and they're always happy when they leave because they're like, "I thought it was going to be so boring, and it's actually really interesting." So I always get great evaluations because people have such low expectations. Anyway, so I can't remember your question, but it was something about how civil procedure is great, so I hope I answered it.

123It's a mix of both. I had this argument with my supervisor for my PhD so many times where he insisted that class actions do not affect the substantive law. And all the jurisprudence in Ontario and Canada say class actions do not affect the substantive law. I think that's wrong. I'm sorry. Like, I think there's concrete examples you can point to where class actions have changed the substantive law. One example is— and so that's why my interest is in both, because I think you can't look at procedure without looking at the substantive law that it's supposed to be facilitating. Procedure is the handmaiden of justice or whatever the saying is. And so things like the need to prove loss across the class, that's— the court's kind of skirted over that in Canada, but in terms of— so for example, you have a competition class action where you have direct purchasers, indirect purchasers, direct purchasers being the ones who directly bought the product whose price was fixed, for example, and then indirect purchasers being the ones that bought from the direct purchasers.

124Purchasers, and then you have umbrella purchasers which didn't buy a price-fixed product at all, but the price was affected by the price-fixing conspiracy. And so you have all these people who are affected by different sort of classes of people that are affected by a problem, a wrong in competition law. And then in a certification, for example, the court says, yeah, we'll certify the question of aggregate damages. Now, to certify the question of aggregate damages, that means that you're assuming that the question of loss can be answered on a class-wide basis. And, you know, the actual sort of question of loss in terms of did everyone suffer loss— so it's part of the liability question, it's not quantifying damages or anything, but did everyone suffer loss?

125And if the question is— if the answer is yes, then you can go on and sort of have these methodological ways of assessing aggregate damages. But by saying— by certifying the question of aggregate damages, then you're basically saying you can prove loss across the class. Now, how can you prove loss across the class when you have different people who have had the loss arguably passed down the chain from direct to indirect to umbrella? It's really hard to quantify that. And so they sort of skirt it over and say, yeah, aggregate damages, the judge can the judge at trial can sort that out. But it's almost like by doing that, they've sort of overlooked the need to— the courts have overlooked the need to prove loss on a class-wide basis, even when there's a question of whether each class member has suffered loss.

126And that affects the substantive law. So that's one of the areas where I would say class actions have affected the substantive law. In England, they've actually directly addressed that in the legislation. So if you look at the competition class action regime there, there's actually provisions that say you don't need to prove loss across the class. The end, done. You know, the legislature's dealt with it, but nothing explicitly addresses that in Canada. So you've had class actions kind of sneak in the back door and sort of slightly warp the substantive law, and nobody has sort of stuck up their hand and said, well, actually. So that's one of the things. Things that I'm working on.

127And I think it's really interesting the way class actions do in some cases slightly warp the substantive law. Nobody really wants to address that or say that because then class actions aren't that harmless anymore. Then they're doing something else that we haven't really thought about. And nobody wants to sort of say that. I guess I'm saying that.

129But that's a slightly different question because then you're saying that the creation of the law, or at least the creation of different statutory requirements, are affected by the lawmakers' perception of how class actions work. I mean, I would say that's different from class actions affecting the way that the existing substantive law already works or is interpreted by the courts. But I'm not saying that doesn't happen, but I'm saying that's a slightly different thing from what I was talking about just now.

131I mean, I think procedure affects decisions under substantive law in lots of areas. I don't think that's the same procedure changing the substantive law. Do you see what I mean? I mean, so we're talking about the behavior modification aspect of class actions there. So if I'm Shell or something, then I'm going to be a lot more careful about polluting, I don't know, Lake Ontario, because if I do, then I could get a class action brought against me by all the people living on the shore of Lake Ontario who've had their their homes or beachfronts, whatever, polluted, right? So that's sort of working in the shadow of a class action because you're sort of thinking about a class action before it's even been brought.

132And corporations do that all the time. They do sort of damage limitation and things like that all the time. I don't think that's the same as class actions changing substantive law. When I talk about class actions changing the substantive law, I'm talking about courts looking at a provision that's really— so, for example, so I think courts look at a class action and say, I don't know if this is something that goes on in judges' minds or— it's because to deny certification is often to deny the class action altogether. There's sort of a desire to make the class action work, even if it maybe doesn't work from a substantive law perspective. Like I said, for example, the determination of loss across the class, because otherwise you're going to have a lot of people with, you know, $20 losses or whatever who aren't going to pursue that case on their own.

133And so it's almost like the wrongdoer gets away with it because the case doesn't fit within the mold of a class action. And so I think, I don't know whether it's consciously or subconsciously or whatever, some cases have tried to sort of bend the substantive law to fit into a class action or vice versa so that justice can be done rather than sort of, well, technically this can't be pursued by way of a class action because of X, and then denying justice altogether. And there's an argument for doing that, right? There's an argument for letting everyone be able to pursue their losses, even if it means bending the substantive law slightly. But I think we should acknowledge that that's what we're doing in some cases.

135Some judges can. Yes, I'm qualifying it. I'm a lawyer, remember. So

137yes, I would say

139Judges are pretty cagey about that. They just sort of kind of say, refer to my decision, I wrote it there.

141Okay, thanks, Pulat. Thanks for having me on.