Canadian Product Liability Class Actions ' Case Highlights

• Published date: 15 November 2024
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Product Liability & Safety, Class Actions
• Law Firm: Borden Ladner Gervais LLP
• Author: Robert Stefanelli, Edona Vila and Glenn Zakaib

*This article was originally published on the American Bar Association website

There have been several significant new developments in product-related class actions in Canada in the past two years. These decisions, arising from Ontario, Saskatchewan, and British Columbia provide important insights into how courts are deciding product liability class actions, particularly at the certification motion, and the court's authority to dismiss putative class actions for delay. This article highlights key trends that have developed from the product liability class action jurisprudence of the last two years.

Overview of class action certifications in Canada

We begin with a primer on the general certification process for class proceedings in Canada. To be certified, a plaintiff must prove their proposed class action satisfies five statutory criteria. While the specific language of these criteria differs slightly across the provinces, the following general conditions must be met for a class action to be certified:

1. There must be a valid cause of action;
2. There must be an identifiable class of two or more persons with a cause of action against the defendant;
3. There must be common issues raised in the class member claims;
4. The class proceeding must be the preferable procedure for resolving the common issue; and
5. There must be a representative plaintiff who would fairly and adequately represent the class interests and does not have a conflict of interest with the other class members.

Actual and demonstrable harm for certification

Several recent decisions involving product liability claims have confirmed that plaintiffs must allege and demonstrate actual harm or loss to meet the test for certification.

• In Palmer v Teva, 2024 ONCA 220, the Ontario Court of Appeal (ONCA) upheld a dismissal decision from a motion to certify a class action regarding alleged carcinogens in Valsartan - a blood-pressure drug manufactured by the defendant pharmaceutical company.
• In Dussiaume v Sandoz Canada Inc., 2023 BCSC 795, the court granted the defendant's motion and struck the plaintiff's putative class action, brought on behalf of a class of those who purchased one or more of the drugs distributed by the defendants containing ranitidine - a histamine h3-receptor antagonist.
• In Tress v FCA, 2023 SKKB 186, the Saskatchewan King's Bench dismissed the plaintiff's putative class action, which alleged the automotive manufacturer misrepresented the emissions performance of certain diesel vehicles and that the vehicles were equipped with auxiliary emissions control devices ("AECDs" or "defeat devices") that caused them to produce exhaust emissions above the regulatory limits.

In both Palmer and Dussiaume, the court found the representative plaintiffs had not demonstrated an injury (physical...