Product liability class actions in Canada are a complex, ever-evolving area of litigation that continue to see an increase in consumer activism and regulatory oversight. If you’re a manufacturer, distributor or seller, or defence counsel, it’s important to understand the associated risks and stay informed of the latest developments in product liability class actions.
 
Below are some key trends that you should be aware of:

1. Filing a Defence. While defendants have not traditionally been required to file a defence prior to the hearing of the certification motion, Canadian courts are increasingly encouraging defendants to do so. Doing so may provide a strategic opportunity to highlight weaknesses in the case and assist in framing the issues at certification.

2. Dispositive Motions. Canadian courts have typically not allowed dispositive motions to proceed prior to the certification hearing, but recent Canadian decisions indicate more flexibility on the sequencing of such motions. Defendants with strong dispositive arguments should consider asking the court to hear the motion pre-certification.

3. Novel Plaintiffs’ Theories. There is a concerning trend of advancing product liability claims in the absence of traditional design defect or failure-to-warn allegations. These novel plaintiffs’ theories posit that the subsequent introduction of an “improved” or “safer” product is evidence that an earlier version of the product was substandard or defective.

4. Ontario Mass Torts. In Ontario, there has been a recent emergence of mass tort litigation, where numerous individual actions from various jurisdictions nationwide are commenced and advanced as an “inventory” of cases. Because there are presently no court rules or procedures addressing mass torts in Canada, defence counsel must consider how to best move these matters forward and whether case management is desirable or useful in each case.

5. Class Actions Delays. Canadian courts have traditionally allowed class actions to continue despite significant delays and non-compliance with legislative timelines for certification. However, courts are now more willing to enforce the “drop dead” rules that mandate the dismissal of a proceeding if the face of such non-compliance.