Key Product Liability Cases: Q2 2025 Update
TheProduct Liability and Mass Torts Group at McCarthy Tétrault LLP is pleased to bring you our analysis of recent decisions for businesses manufacturing or selling products in Canada:
- The Supreme Court of British Columbia highlights the potential liability of thirdparty consultants for product liability harms: British Columbia v. McKinsey & Company, Inc. United States, 2025 BCSC 1094
- The Ontario Superior Court of Justice confirms that an ongoing duty of care does not toll Ontario's ultimate limitation period: Hennebury v. Makita Canada Inc., 2025 ONSC 3850
- The Court of Appeal for Ontario rejects the application of public nuisance and strict liability to product liability claims: Price v. Smith and Wesson Corp., 2025 ONCA 452
- The Court of Appeal for Ontario clarifies the limits of claims for repair in product liability cases: North v. Bayerische Motoren Werke AG, 2025 ONCA 340
The Supreme Court of British Columbia again highlights the potential liability of third-party consultants for product liability harms: British Columbia v. McKinsey & Company, Inc. United States, 2025 BCSC 1094
The Supreme Court of British Columbia has certified a class proceeding against McKinsey & Company, Inc. United States and McKinsey & Company Canada/ McKinsey & Compagnie Canada ("McKinsey") regarding advice that McKinsey allegedly provided to pharmaceutical clients who manufactured, marketed, and distributed opioid-related products in Canada. The Supreme Court's decision is the latest to suggest that consultants who advise manufacturing clients may owe a duty of care to their clients' consumers.
Background
In 2021, the Province of British Columbia ("BC") commenced a proposed class proceeding against McKinsey on behalf of the other provinces and the federal government relating to advice and services that McKinsey allegedly provided to pharmaceutical clients in Canada.
BC contended that McKinsey helped clients disseminate misleading information about opioid medicines' safety and efficacy while knowing that the information was false. BC likened McKinsey's role to that of a manufacturer or distributor of opioid medicines, and alleged McKinsey's knowledge and close relationship with pharmaceutical companies meant that McKinsey owed a duty of care to end-users of opioid medicines.
McKinsey applied to strike the claims against it on the basis that it owed no duty of care to consumers of its clients' products. That application was denied, and McKinsey's appeal was dismissed, in cases covered in our Q3 2024 Product Liability Update.
With its application to strike denied, McKinsey returned to court to oppose certification of the proposed class action against it.
McKinsey's arguments again targeted BC's theory of liability. McKinsey denied that it could be liable for the consulting work it performed for its clients. It conceded that its US affiliate prepared some marketing materials for US pharmaceutical clients, but argued that there was no evidence of its involvement in marketing or sales strategies for opioids in Canada.
BC alleged that McKinsey and its pharmaceutical clients worked according to a common design to develop and implement marketing plans and strategies to increase sales of opioids in Canada.
Outcome
The Supreme Court certified the class action against McKinsey, despite the absence of evidence that its Canadian subsidiary had directly engaged in any marketing or sales strategies in Canada.
The Court took a wide view of BC's claim, which it characterized as being based on "expansive allegations of common design and civil conspiracy," including allegations involving McKinsey's US and Canadian subsidiaries.1 The Court was satisfied that BC pointed to "tenable links" between McKinsey's US and Canadian work.2 These links included statements on McKinsey's website that McKinsey is "a global firm ... designed to operate as one – a single global partnership" and "Our efforts span the entire organization," and references in some documents to meetings between McKinsey and a Canadian pharmaceutical company between 2014 and 2018.3 In the Court's view, the extent to which McKinsey's US work furthered a common design to increase the sales of opioids in Canada was an issue to be resolved at trial after the benefit of full discovery.4
Key Takeaways
- The BC Courts continue to entertain theories of third-party consultant liability, even where the link between the consultant and the alleged wrongs appear tenuous.
- Firms with international affiliates, or whose work crosses jurisdictional boundaries, should be mindful of the possibility that advice provided in one country may give rise to liability in Canada. BC courts have taken an increasingly expansive view of group liability in recent years.
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