Prepared for the Canadian Institute’s Forum on Product Liability and Recalls May 29 & 30, 2008

Since class action legislation was enacted in Ontario and British Columbia in the 1990’s, product liability claims have been a popular area for litigation. However, despite their popularity and the notion that they are particularly suited to class proceedings, not all product liability claims are certified.

This paper will consider product liability claims in three classic areas: drugs or medical devices, cars and cigarettes. Of the three, drugs and medical devices have the best track record for certification. The rebirth of “waiver of tort” in Serhan v. Johnson & Johnson (2004), 72 O.R. (3d) 296 (S.C.J.), aff’d (2006), 85 O.R. (3d) 665 (Div. Ct.), leave to appeal refused [2006] S.C.C.A. 494 (“Serhan”) and the cases following it (several of which will be discussed below) has also given plaintiffs’ counsel another useful weapon against defendants’ arguments that causation issues make product liability cases unsuitable for certification. Proposed class actions against automobile manufacturers have fared less well, and actions against cigarette manufacturers (with one exception) have been, for the most part, very expensive failures for plaintiffs and their counsel.

Can the elements – identification of products, thoughtful selection of causes of action, a defect and resulting harm that can be proved on a class-wide basis, a readily identifiable class (“all persons who ingested,” “all persons who were implanted with,” etc.) and common issues focussed on the conduct of defendants – that contribute to success in the drug and medical device actions be imported into other product liability areas? Or are some products liability complaints simply not amenable to class action litigation?