The Perils Of Overgeneralized Proposed Common Issues, As Clarified By The Ontario Superior Court

• Law Firm: Osler, Hoskin & Harcourt LLP
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Author: Mr Craig Lockwood and Jayne Cooke
• Published date: 16 June 2023

The Ontario Superior Court's ruling in Price v. H. Lundbeck A/S, 2022 ONSC 7160 (Price) highlights the perils of over-generalized "failure to warn" allegations in the context of formulating common issues for the purposes of a proposed class proceeding. In particular, Justice Glustein's findings in Price remind plaintiffs of the necessity to articulate sufficiently narrow and appropriately specific proposed common issues for certification. This is welcome news for defendants to putative class actions, insofar as it reaffirms the obligations of plaintiffs to clearly articulate the case that has to be met.

Factual background

This certification motion arose in the context of an allegation by the plaintiffs, Jennifer Price and her son, Matthew Janzic, that the anti-depressant drug Celexa' is a "teratogen" that causes congenital malfunctions through its active ingredient, citalopram. It was alleged that a teratogen is an agent that can, under reasonable circumstances of exposure, disturb the development of an embryo or fetus and thereby cause congenital malformations.

The plaintiffs brought the action against H. Lundbeck A/S and Lundbeck Canada Inc., who they allege manufactured, distributed and marketed Celexa'. However, rather than seeking to certify a common issue related to general causation (linking Celexa' to any particular congenital malformation) or the defendants' alleged failure to warn of such a causal link, the plaintiffs proposed the following common issue: "From 1999, did the defendants breach their duty to warn Canadian physicians and patients that Celexa' is or may be teratogenic?" (the Proposed Common Issue).

Procedural history

The proceeding dated back to December 2014, following which the Proposed Common Issue underwent an evolution before the formulation presented to Justice Glustein. At the original certification hearing , the plaintiffs initially proposed two common issues: (1) is citalopram or may citalopram be teratogenic; and, if so, (2) did the defendants breach a duty to warn Canadian physicians and patients that citalopram is or may be teratogenic. After receiving the defendants' materials, the plaintiffs subsequently abandoned the first issue and focused their efforts on the duty to warn angle.

Despite this revision, Justice Perell nonetheless initially denied certification, concluding that: (i) the alleged "failure to warn" did not meet the commonality requirement, and (ii) even if it did, a class action would not be the preferable...