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” allegations.
Ann Schwoob v. Bayer Inc.
In 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 doctrine.3
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.
1 (2006), 39 C.P.C. (6th) 153; aff’d  O.J. No. 2610
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 trial.