When a company is named as a defendant in a class action
lawsuit, it is imperative that the case be taken seriously from the
outset and vigourously defended at every stage. Similarly,
potential class counsel must put in legwork to ensure that a
prospective case will meet the legislative and procedural
requirements for certification as a class action. Failure to do so
can result in serious cost consequences.
These lessons were reinforced in a recent decision by Justice
Strathy of the Ontario Superior Court in Singer v. Schering-Plough Canada Inc., in
which he dismissed two motions for certification involving
sunscreen products manufactured by Schering-Plough Canada Inc. and
Playtex Limited under the Coppertone® and Banana Boat®
brand names. The proposed representative plaintiff, Brian Singer,
sought $20 million in damages. Singer alleged that Schering-Plough
and Playtex had misrepresented the effectiveness of their sunscreen
products by, among other things, advertising their products to have
"UVA/UVB protection," thereby allegedly misleading
consumers to believe the products provided equal protection from
both UVB and UVA rays.
In dismissing the motions, Justice Strathy concluded that the
plaintiff met none of the five requirements for certification under
Section 5 of the Class Proceedings Act. The plaintiff
pleaded causes of action that were not available to him, and
improperly pleaded causes of action that were unsuitable for
certification in a class action. There was no evidence of an
identifiable class sharing the plaintiff's expressed interest
in an issue that Justice Strathy noted "appears to have been
conceived by lawyers." Further, there was a lack of connection
between the common issues and the causes of action pleaded, and no
evidence or basis in fact for the proposed common issues. A class
proceeding was not the preferable procedure because it would be
unmanageable and inefficient, there was insufficient evidence of a
real complaint (and in any event, it could be pursued in Small
Claims Court or as a test case), and there was an appropriate
statutory and regulatory regime in place to which complaints could
be directed. Justice Strathy also concluded that the proposed
representative plaintiff was not suitable for this case.
Notably, Justice Strathy was critical of the plaintiff's
apparent lack of research of the Canadian regulatory regime and of
the lack of effort invested by the plaintiff, stating:
I must say that the statement of claim in this action looks as
if it has been borrowed from a US pleading without adequate
research of the Canadian regulatory regime...These circumstances
make me question whether adequate effort and investigation has been
made in the preparation of these two actions which seek to
represent millions of consumers.
Justice Strathy concluded his reasons as follows:
The certification of these actions would not serve any of the
goals of the [Class Proceedings Act]. It would not provide
access to justice because there is no class of people who have
suffered damages and are looking for justice. Far from promoting
judicial economy, it would saddle the court with two massive class
actions that have been cobbled together with an insufficient legal
and evidentiary foundation. It would not result in behaviour
modification because there is a sophisticated and scientifically
supported regulatory system that serves that very purpose. In my
view, the public will be rightly cynical, and the administration of
justice will be brought into disrepute, if the class action process
is used to prosecute theoretical and insubstantial wrongs, creating
massive and enormously expensive litigation, but not redressing
real injuries suffered by real people.
McCarthy Tétrault Notes
Following the dismissal of the certification motions, Justice
Strathy ordered the plaintiff to pay $200,000 in costs to each of
Schering-Plough and Playtex. Justice Strathy affirmed the principle
that "costs follow the event" in litigation. This
decision should remind prospective plaintiffs and plaintiffs'
counsel that serious cost consequences can result when advancing
unsuccessful claims. Justice Strathy noted that "a failure to
hold parties accountable for the costs of litigation will only
serve to encourage speculative and unmeritorious claims."
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guide to the subject matter. Specialist advice should be sought
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