CANADA Law and Practice Contributed by: Sylvie Rodrigue, Grant Worden, Nicole Mantini and Anne Merminod, Torys LLP
2.17 Summary of Significant Recent Product Liability Claims Sanis Health Inc. v British Columbia, 2024 SCC 40 The Supreme Court of Canada held that the relevant section of British Columbia’s Opioid Damages and Health Care Costs Recovery Act (ORA) was within British Columbia’s legislative jurisdiction, allowing British Columbia to continue a proposed class action commenced on behalf of multiple Canadian govern - ments against opioid manufacturers, marketers, and distributors. This decision may have a potential impact on future efforts to enact similar healthcare cost recovery leg - islation. The class action was authorised in January 2025. British Columbia v McKinsey & Company, Inc. United States, 2025 BCSC 1094 The British Columbia Supreme Court found that an external consultant could be held liable for improper opioid marketing by providing advice to manufactur - ers in the context of the ORA, which expressly con - templates recovery of health-care costs against man - ufacturers, distributors, and their consultants. Palmer v Teva Canada Limited, 2024 ONCA 220 The Court of Appeal for Ontario dismissed the plain - tiffs’ appeal from an order denying certification of a proposed product liability class action claiming dam - ages for a potential increased risk of being diagnosed with cancer in the future. This decision confirms that risk of future harm is not compensable, and that proposed common issues must have a minimal evidentiary foundation to clear certification. Pharmascience inc. v Bourassa, 2024 QCCA 1403 In a class action authorised against opioid manufac - turers on behalf of members diagnosed with Opioid Use Disorder, the Québec Court of Appeal has rein - forced the viability of industry‑wide class actions in the province. The Court confirmed that a class action may be authorised against multiple defendants even where
co-ordination of overlapping claims, the Canadian Bar Association promulgated the Canadian Judicial Proto - col for the Management of Multi-Jurisdictional Class Actions, which makes use of class action legislation and Rules of Civil Procedure in various jurisdictions. This protocol has been adopted by many provincial courts through practice directions, although its appli - cation remains entirely voluntary in some jurisdictions, including in Québec. There has been a marked increase in the number of class actions filed concurrently in Quebec and Brit - ish Columbia, reflecting a strategic shift by plaintiffs towards jurisdictions perceived as more favourable to class proceedings. Both provinces are considered to have comparatively lower thresholds for authorisation or certification. In Quebec, plaintiffs are not required to demonstrate that a class action is the preferable procedural vehicle, and a single common issue is sufficient to authorise the proceeding. While British Columbia does apply a preferable procedure test, it is less stringent than Ontario’s, which introduced more rigorous requirements, including that common issues must predominate and that a class action must be superior to all other reasonably available means of resolving the dispute. Although product liability class actions are frequently certified or authorised in Canada due to the relatively low threshold at that stage, there are comparative - ly few trial decisions that address the merits of the claims. The path to trial readiness often spans five to ten years, prompting many defendants to consider early settlement as a means of mitigating substantial legal costs. As discussed further in 3.1 Trends in Product Liability and Product Safety Policy , despite there being no federal or provincial “mass tort” framework in Canada, some plaintiffs’ counsel commence informal “mass tort” proceedings by issuing numerous individual claims ‒ often tens or hundreds of claims ‒ advancing identical allegations. In the absence of a procedural mechanism to co-ordinate their advancement, co- ordination requires negotiation and agreement.
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