On April 15, 2013, the Ontario Superior Court of Justice
certified a product liability class action in respect of
pharmaceutical products manufactured by Bayer Inc. In so doing, the
Court's reasoning highlighted the continued uncertainty
surrounding the requirements for class certification in the product
liability area, especially regarding the standard for pleadings and
the acceptability of the ubiquitous "waiver of tort"
Ann Schwoob v. Bayer Inc.
Ann Schwoob v. Bayer Inc., 2013 ONSC 2207, the plaintiffs
brought a claim in negligence and waiver of tort against a major
pharmaceutical company. They alleged that two brands of
contraceptives developed and commercialized by the defendant
contained a chemical component that made them unsuitable for use
due to certain health risks. Moreover, the plaintiffs claimed that
these risks were known only to the defendant at the time.
On certification, Justice Crane found that the plaintiffs had
satisfied all of the requirements for certification of the proposed
class under the Class Proceedings Act. In reaching this
conclusion, he noted that the plaintiffs' case shared many
similarities with the claim that gave rise to the ruling of the
Ontario Superior Court of Justice in Heward v. Eli Lilly &
Co,1 in terms of both the causes of action pleaded
and the common issues for the class. Notably, Justice Crane relied
significantly on these similarities in granting certification,
notwithstanding the Divisional Court's recent ruling in
Martin v. Astrazenca Pharmaceuticals Plc.2
(which seemingly signalled a departure from Heward).
On the issue of waiver of tort, Justice Crane noted that the law
is still uncertain regarding the availability of this remedy.
However, he recognized that this cause of action has been
recognized in a number of certification motions in Ontario
(including Heward) and that, for this novel and developing
area of the law, he was prepared to approve the common issues
involving waiver of tort in this case. Again, this finding
seemingly deviates from some of the recent jurisprudence signalling
a more restrained approach to the waiver of tort
Although Justice Crane's reasons were brief, they represent
an apparent departure from some of the recent product liability
jurisprudence suggesting a tightening of the pleadings and
certification requirements. At the very least, the decision
indicates that the bar remains relatively low for certification of
pharmaceutical and medical device claims in Ontario.
3 For instance, see the British Columbia Court of
Appeal decision in
Koubi v. Mazda Canada Inc.that curtailed the
ability of class plaintiffs to rely on restitutionary doctrines
such as "waiver of tort" to obtain class certification in
cases grounded in alleged breaches of statute; see also the
decision of the Ontario Superior Court of Justice in
Andersen v. St. Jude Medical, in which Justice Lax
declined to decide the issue of waiver of tort in a common issues
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The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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