Product Liability: Important Developments In 2020

• Published date: 17 December 2020
• Law Firm: Torys LLP
• Author: Ms Sylvie Rodrigue, Grant Worden, Nicole Mantini and Corina Manole

2020 has seen several important developments in product liability law.

These developments signal that a variety of challenges are on the horizon for plaintiffs in 2021 in three specific areas: product liability class actions alleging adverse health effects; claims relating to the sale of prescription medications; and "mass tort" claims.

No "workable methodology": an effective defence to certification

In 2013, the Supreme Court of Canada affirmed in Pro-Sys Consultants Ltd. v. Microsoft Corporation¹ that, at certification, plaintiffs must demonstrate a "workable methodology" for determining general causation on a class-wide basis. Since then, this issue-which has often been decided in the plaintiffs' favour-has arisen frequently in proposed product liability class actions alleging adverse health effects. In 2020, two actions have bucked this trend and may foreshadow similar outcomes in 2021.

The first action, Organigram Holdings Inc. v. Downton², arose out of a 2016 recall of certain cannabis products which contained trace amounts of pesticides not approved for use on cannabis. In addition to economic loss claims, the plaintiff also alleged adverse health consequences.

The action was certified and the defendant appealed the portions of the order relating to the allegations of adverse health consequences, arguing, among other things, that the plaintiff had failed to establish a workable methodology for determining general causation on a class-wide basis. The Nova Scotia Court of Appeal agreed, concluding that while the plaintiff's expert had opined on theoretical harms that could be caused by certain of the pesticides, the plaintiff had provided no evidence that could link the symptoms alleged with the plaintiff's exposure to the...