CANADA Law and Practice Contributed by: Sylvie Rodrigue, Grant Worden, Nicole Mantini and Anne Merminod, Torys LLP
the representative plaintiff does not have a personal cause of action against each of them, despite defend - ants manufacturing, marketing or distributing different drugs with different compositions. While this principle had previously been recognised by the Supreme Court of Canada in Banque de Mon- tréal v Marcotte in the context of a contractual class action involving against financial institutions, this deci - sion marks the first time it has been applied in a claim based on extracontractual liability, involving allega - tions of product and safety defects. Campbell v JUUL Labs Canada, Ltd., 2025 BCSC 771 In a proposed class action alleging that JUUL e-cig - arettes were deceptively marketed as safe alterna - tives to smoking with campaigns deliberately targeting youth through social media (giving rise to allegations of negligent design, failure to warn, and breach of consumer protection statutes), the court found that most certification requirements were met but identi - fied deficiencies in the class definition and common issues that required amendment, and adjourned the hearing to allow such amendments. North v Bayerische Motoren Werke AG, 2025 ONCA 340 The Court of Appeal for Ontario overturned an order certifying a product liability class action involving defective car engines on the basis that the plaintiffs’ pure economic losses were not recoverable because the proposed representative plaintiffs did not incur costs associated with removing or repairing a dan - gerous defect. The case applies the Supreme Court of Canada’s 2020 decision in 1688782Ontario Inc . v Maple Leaf Foods Inc ., which circumscribes the avail - ability of pure economic loss in cases of alleged neg - ligence, although the Supreme Court has granted the plaintiff leave to appeal the decision. Price v Smith & Wesson Corporation, 2025 ONCA 452 The Ontario Court of Appeal considered the scope of a product manufacturer’s duty of care in the context of dangerous products (in this case, firearms), reaffirming that the reasonable foreseeability of personal injury is central to the question of whether a duty of care exists
in the context of a product liability case. The Court confirmed that strict liability and public nuisance alle - gations do not extend to product liability claims. Both parties have sought leave to appeal to the Supreme Court of Canada. Toronto District School Board v Meta Platforms Inc. et al., 2025 ONSC 1499 The Ontario Superior Court of Justice considered claims alleging negligence and public nuisance against social media providers on a motion to strike; the Court allowed the negligence and public nuisance claims to proceed to the merits. The defendants have obtained leave to appeal the decision. 3. Recent Policy Changes and Outlook 3.1 Trends in Product Liability and Product Safety Policy Public Nuisance Claims While causes of action in public nuisance have been traditionally associated with environmental events like acute pollution or toxic spills and resulting harm to public property or resources, plaintiffs have increas - ingly been asserting the doctrine of public nuisance in connection with various types of goods and services ranging from consumable products to social media. Unlike traditional product liability causes of action rooted in negligence and/or misrepresentation, which require proving discrete harm to specific individuals, the tort of public nuisance involves allegations of harm to broad public interests ‒ such as public health, safe - ty, or the environment. At common law, the tort of public nuisance requires a plaintiff to establish the existence of a public right and that there has been an unreasonable interference with that right. As such, it avoids certain key elements required to prove negligence at common law, such as the existence and/or breach of the relevant standard of care. Similar remedies can also be sought in Que - bec under the combined effect of Article 1457 of the Civil Code of Québec and Article 49 of the Québec Charter of Human Rights and Freedoms. Although those statutes do not use the phrase “public nui - sance”, Article 49 of the Québec Charter specifically
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