In O'Brien v. Bard Canada Inc., 2015
ONSC 2470 ("Bard"), Justice Perell refused
to certify the plaintiffs' claim for waiver of tort.
Perell J.'s rationale was not based on the now familiar
tension over whether waiver of tort is a cause of action or a
remedy, but drew on the increasingly prominent preferable procedure
and proportionality concepts.
Bard is a products liability class action regarding a
number of pelvic mesh products. For the purpose of his analysis,
Perell J. assumed that waiver of tort was a discrete cause of
action. Even with that assumption. Perell J. stated that it
was 'inconceivable' that the tort claims pleaded would ever
be waived in lieu of a claim in restitution for disgorgement.
No mention of what the disgorgement amounts might be is noted
in the decision, but Perell J. presumably thought that they would
be significantly less. He stated:
...it makes no sense and would be
irresponsible to the point of absurdity to waive individual tort
damage claims which in the aggregate are pleaded to be worth
billions of dollars.
Perell J. noted that it may have made sense to certify a claim
in waiver of tort in Serhan v. Johnson & Johnson,
(2004) CanLII 1533 (ONSC), where there were no damages and waiver
of tort was the route to access to justice and behaviour
modification, but this was not the case before him.
Surprisingly and without further analysis, Perell J. stated that
"It would be reprehensible for Class Counsel to take a
contingent fee based on an award calculated on the disgorgement of
profits." Supposedly a remedy based on waiver of tort would
create conflicts between class members in terms of distribution,
and it would be a waste of everyone's time, resources, and
energies to calculate disgorgement damages when energies should
instead be focused upon compensatory damages.
As a result, Perell J. refused to certify the claim for waiver
of tort finding that it would not be reasonable to prosecute it as
a class action and that it did not satisfy the cause of action
criterion. Further, even if the waiver of tort pleading satisfied
the first three certification criteria, it would not satisfy the
preferable procedure or representative plaintiff criteria.
Whether this decision signifies an end for the beleaguered and
often troubled claim for waiver of tort remains to be seen. It
seems doubtful, although defendants will no doubt attempt to rely
on this decision in the future.
While it is true that not everything in a statement of claim is
amenable to certification as a common issue, particularly as some
issues may be individual issues, it is equally true that a
statement of claim and the causes of action contained therein
remain the provenience and choice of the plaintiffs. It must also
be remembered that the mere fact that significant damages are
pleaded does not mean that they will be provable.
In any event, this decision is a strong statement from one
member of the class action judiciary reflective of an increasing
focus on preferability, writ large, and in the maturing
certification case law.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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