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Product Liability e-COMMUNIQUÉ - February 2016

Published: 02/02/2016

By Peter Henein, Stefanie Holland, Carly Cohen, Kate Byers, Christopher Horkins, Jeremy Martin, Stephanie Voudouris

In This Issue

  1. Making Common Cause: Plaintiff’s Claims Fail to ‘Mesh’ in Ontario Court’s Denial of Boston Scientific Class Action Certification
  2. Tragically Hip: Biomet Class Action Certification Decision Suggests Defence’s Merits-Based Evidence is “Irrelevant”
  3. Time After Time: The Limitations Period in Motor Vehicle Accidents
  4. Blue Label, Not Mislabelled: Door Left Ajar in Pre-Certification Dismissal of Loblaw Food Labelling Class Action
  5. Regulating Risk: Keeping You Up-To-Date on Product Regulation
  6. What We’re Up To

Making Common Cause: Plaintiff’s Claims Fail to ‘Mesh’ in Ontario Court’s Denial of Boston Scientific Class Action Certification

By Jeremy Martin

At the end of 2015, the certification decision came out in Vester v. Boston Scientific Ltd.1 Those of us in the products field were keeping an eye on this decision, as it was bound to test the outer limits of what could qualify as a “common issue” for the purposes of the Class Proceedings Act.

Those limits are critical. The definition of the common issues tends to be the most fertile ground for debate and negotiation in a class action. It is not an exaggeration to say that the breadth of the common issues dictates the length and complexity of a common issues trial. Determining whether Product “A” should have been coated with Substance “B” is a much more streamlined case at every stage than a broad claim that the defendants’ A-class products are defective.

Background to the Case

Vester concerned nine medical devices designed to treat stress urinary incontinence and pelvic organ prolapse, and each was alleged to have caused various specified “injuries, conditions and complications.”2 The plaintiffs did not, however, specify the alleged cause of those injuries. Rather, they pleaded broadly that the devices were “dangerous, defective, unfit and unsafe for use.”3

The devices had common features, in that they were used in the treatment of similar conditions and each employed a certain polypropylene mesh as a predominant component. The devices differed, however, in dimensions, function, features, configurations, method of fixation, and routes of application. The mesh used for one condition featured a different fiber diameter and pore size than the mesh used for the other. Each device also had different directions for use.

Back to the Drawing Board: Court Cannot Assume Issues Will Be Common to Class

Justice Perell declined to certify the class. His Honour found that although the devices all had similar features and were alleged to have caused similar injuries, the Court could not conclude that a single class proceeding was the preferable procedure because the plaintiffs did not specify the alleged cause of those injuries. A nuanced ruling in respect of a certain design flaw in one product might have nothing to do with an alleged manufacturing defect in another.

Although His Honour declined to certify the class, the action was not dismissed and certification was not rejected outright. The Court adjourned the certification hearing to permit the plaintiffs to return to court with enough evidence to establish that there is some basis in fact for the belief that all nine products had the alleged issues in common, and to revise their litigation plan accordingly.

Key Take-Away Principle

This decision reinforces two key points in product liability class actions. First, it reinforces that the “some basis in fact” test has ‘teeth,’ and is being applied to ensure that there is in fact reason to believe that the alleged issues are genuinely common, and not just allegedly or admittedly common, to the entire class. (Otherwise, the Court ruled, the common issues trial would become an “unproductive shambles.”)4 Justice Perell’s approach to this issue is interesting when compared with the approach taken by Justice Belobaba in the recent Biomet certification decision (summarized in this newsletter below), which emphasized the relatively low bar to certification.

And second, even when all common issues are rejected, the Court continues to show its general preference to allow unsuccessful class counsel to go “back to the drawing board” to amend pleadings or - as in this case - to lead further evidence until it is clear whether the action can, or cannot, proceed to an effective common issues trial.2015 ONSC 7950, decision issued December 17, 2015.

Read the full decision here.


1 2015 ONSC 7950, decision issued December 17, 2015.
2 Ibid. at para. 50.
3 Ibid. at para. 57. This case followed His Honour’s decision in O’Brien v. Bard, 2015 ONSC 2470, which was a parallel case involving products with different mesh materials and types of polypropylene. The products in the Vester case did not feature such ambiguities.
4 Ibid. at para. 124.



Tragically Hip: Biomet Class Action Certification Decision Suggests Defence’s Merits-Based Evidence is “Irrelevant”

By Christopher Horkins

In a class action certification decision released on December 18, 2015, Justice Belobaba of the Ontario Superior Court of Justice addressed what he called “the most contentious issue in the certification of class actions, and especially product liability class actions” - the issue of commonality, and specifically the level of merits-based evidence which is appropriate to determine the issue for the purpose of class certification.1

What degree of evidence on the merits of the case is required to determine commonality for certification? This question has been hotly contested in product liability class actions. In the opening paragraphs of Dine v. Biomet, Justice Belobaba succinctly described his view of the differing approaches taken by plaintiff and defence counsel, stating:

Class counsel generally understands that only a minimal amount of evidence is needed to satisfy the commonality requirement. Defence counsel generally does not and presents far too much merit-based evidence that has no place at certification and is better left for trial.

This view clearly set the tone for his decision granting certification of the class action.

Background to the Case

Biomet is a class action arising from three separate large head metal-on-metal hip implant products manufactured by the Biomet defendants which are alleged to have been inherently unsafe, harmful to adjacent tissue and the cause of higher than average levels of revision surgeries. We previously covered a decision in this case regarding pre-certification disclosure of medical records.

The only aspects of the certification test challenged by the defendants were commonality and whether a class proceeding was the preferable procedure. Justice Belobaba was dismissive of the defendants’ arguments that a class action was not preferable, finding that the common issues presented were no different from other certified medical product class actions in Ontario and that their adjudication would meaningfully advance the issues regardless of the ultimate outcome of the case. As such, the focus of his decision was commonality.

A Low Bar to Certification: Commonality and the “Some Basis In Fact” Test

In addressing commonality, Justice Belobaba broke down the “some basis in fact” test into two parts generally applicable to product liability class actions: (a) whether there is some evidence supporting the existence of a defect, and (b) whether there is some evidence of class-wide commonality. Stressing the low evidentiary bar to certification, Justice Belobaba found that the plaintiff had discharged its duty to show some evidence of both a defect and commonality.

Although Justice Belobaba noted the defendants had filed “extensive” and “compelling” evidence rebutting the plaintiffs position on the merits of the case, he found this evidence to be “irrelevant at the certification stage of the proceeding” and stated that any adjudication on the merits should be reserved for trial or summary judgment.

Aside from one common issue asking whether the defendants should be compelled to establish a monitoring regime, which was not certified, and a suggested amendment to clarify the common issue with respect to punitive damages, all common issues were certified.

Key Take-Away Principle

Justice Belobaba’s decision raises an ever-present and troubling issue for defence counsel in product liability cases. If the evidentiary bar to certification is really so low and if extensive, and compelling evidence led to rebut the plaintiff’s evidence will be cast aside as “irrelevant”, is there any value in vigorously contesting motions for certification at all? Justice Belobaba’s decision seems to suggest not. However, contrasted with the decision released one day earlier by Justice Perrell in Vester v. Boston Scientific Ltd. (also summarized above in this newsletter), it appears that a degree of merits-based evidence by the defence may be capable of defeating the “some basis in fact” test for commonality after all. This will most certainly continue to be a hotly contested issue in future cases.

Read the full decision here.


1 Dine v Biomet, 2015 ONSC 3428


Time After Time: The Limitations Period in Motor Vehicle Accidents

By Stephanie Voudouris

The issue of applicable limitation periods vexes many litigants. In the fall of 2015, the Ontario Superior Court provided helpful commentary on the analysis of the limitation period applicable to motor vehicle accidents in the context of a summary judgment motion.

Background to the Case

Ontario’s Limitations Act creates a general two year limitation period for all claims that starts to run on the day the plaintiff discovered, or ought to have discovered, the claim (which includes injury, loss or damage).

In Munas v Yusuf, the plaintiff was involved in a motor vehicle accident on August 20, 2009 and brought an action against the other drivers.1 One of the defendants, Vince Henderson, was the driver of a rental car. On October 22, 2012, two years after serving the initial claim and one year after the limitation period had expired, the plaintiff brought an unopposed motion to add Wasiu Yusuf, the lessee of Mr. Henderson’s car.

Out of Time: The Plaintiff’s Claim is Statute-Barred

Yusuf defended by pleading, among other things, that the limitation period barred the plaintiff’s claim. Yusuf then brought a summary judgment motion seeking to have the claim dismissed. The plaintiff argued that Yusuf was precluded from arguing a limitations defence since he did not oppose the motion adding him as a defendant. The Court disagreed. Had Yusuf raised the limitation defence on the motion, he may have been estopped from relying on it for summary judgment. Since, however, he did not raise the limitation issue, he was freely able to do so in his defence and pursuant to his summary judgment motion.

The plaintiff also argued that a limitation defence is always a triable issue and not appropriate on summary judgment. The Court disagreed finding that summary judgment motions are routinely granted in response to limitation defences. In this case, the court’s conclusion on discoverability turned on the fact that that the plaintiff conducted no due diligence to determine the lessee of the car.

Key Take-Away Principles

This case offers several key takeaways:

  1. A defendant who fails to oppose a motion to add them as a defendant after the expiry of a limitation period is not precluded from bringing a summary judgment motion to dismiss the claim against them on that basis.
  2. The success of a limitations defence depends significantly on the plaintiff’s ability to demonstrate due diligence. The plaintiff has to prove that he took reasonable steps to uncover the elements of the claim, including the proper parties involved; and
  3. Specifically for motor vehicle litigants, it is not enough to name the drivers of other vehicles involved. The plaintiff must ensure that they have accurately understood the relationship between the driver, the vehicle, and any other party (i.e. a lessee) connected to the vehicle.

Broadly speaking, cases involving limitations defences are becoming a category of cases that courts are quite comfortable dismissing via summary judgment motions. The Court’s comfort-level in granting summary judgment in this context should provide pause, not only for defendants in thinking through their litigation strategy, but also for plaintiffs. The Court in this case notes that it is entitled to assume both parties have put forward their best evidence on summary judgment - for the plaintiff, this means demonstrating to the Court that notwithstanding reasonable due diligence, the plaintiff could not have discovered the claim (or all of the people involved) until a later date.

Read the full decision here.


1 2015 ONSC 5443 


Blue Label, Not Mislabelled: Door Left Ajar in Pre-Certification Dismissal of Loblaw Food Labelling Class Action

By Kate Byers

A recent decision from the Saskatchewan Court of Queen’s Bench demonstrates a unique circumstance in which the Court granted summary judgment dismissing a proposed class action prior to certification, but only as against the individual proposed representative plaintiffs. In other words, the door was left ajar for another plaintiff to plead the same case differently and seek class certification.

Background to the Case

In Sandoff v. Loblaw Companies Ltd., the Saskatchewan Court of Queen’s Bench granted summary judgment to the defendants in a class action against the Loblaws grocery chain alleging a host of claims relating to the alleged misleading labelling of private label brand beverages as “low sodium.”1 The plaintiffs claimed negligence, breach of warranty, unjust enrichment, waiver of tort, exemplary and punitive damages and violations of the Food and Drugs Act and other statutes.

Evidence and Decision

The plaintiffs alleged that Loblaws’ use of the labels was false, misleading and deceptive. However, the plaintiffs’ affidavit evidence proved inadequate to support those claims. Importantly, the plaintiffs acknowledged that the products in question did in fact contain a minimal level of sodium, but maintained that the use of the labels amounted to a misrepresentation that they were lower in sodium than other comparable products.
In fact, the Court found that the plaintiffs fact and expert witnesses had not provided any evidence that Loblaws had made any such comparative claims. Further, the plaintiffs did not assert that any consumers, or the plaintiffs personally, were actually misled by the labels, nor did they claim that the plaintiffs had relied on the alleged “low sodium” representation when purchasing the products or that they had suffered any damages.

Justice Keene of the Saskatchewan court applied an objective test to determine that the labels were not false, misleading or deceptive. Ultimately, the products in question were found to be low in sodium (defined as containing approximately 14% of the sodium permitted), meaning that the labels were not actually inaccurate. The Court dismissed the argument that since other companies had not chosen to label their similar products this way, Loblaws’ decision to do so was misleading. He noted that consumers were free to check the nutritional label at any time and make a reasoned decision. Finally, he noted the lack of evidence of any damages suffered.

Interestingly, while Justice Keene awarded summary judgment to the defendants and denied certification to the particular plaintiffs in this case, he did not rule out the possibility of a future, differently pleaded action being launched by other members of the proposed class.

Key Take-Away Principles

This case reinforces the availability of summary judgment prior to certification, but also the potential that while a defendant may be successful on a summary judgment motion in a class action, that may not be enough to close the door on any future similar class actions.

This case also serves as a reminder to plaintiff class counsel that the availability of pre-certification summary judgment means that they must be prepared to substantiate their claims at an early stage, and should choose their affiants wisely.

Read the full decision here.


1 2015 SKQB 345



Regulating Risk: Keeping You Up-To-Date on Product Regulation

A look at what’s new in product regulation in Canada and abroad.

Licensure of Lab Staff Under the Human Pathogens and Toxins Regulations

The Human Pathogens and Toxins Regulations came into force on December 1, 2015.  These Regulations require laboratory personnel who possess, store or use higher risk human pathogens or toxins to be licensed and to adhere to specific safety and security requirements. 

A link to the Regulations and the Human Pathogens and Toxins Act under which they are made can be found here.

Issuance of Consumer Product Enforcement Summary Reports

Health Canada has recently released Consumer Product Enforcement Summary Reports in respect of 13 Cyclical Enforcement projects.  These projects verify industry’s compliance with requirements under various regulations to the Canada Consumer Product Safety Act.  Compliance of products subject to these projects is typically determined through a sampling and testing process by which Health Canada inspectors visit establishments (retailers, distributors, etc.) and inspect/test samples of relevant products. 

The reports addressed the following product categories:

  • Asbestos products
  • Carriages and strollers
  • Children’s jewellery
  • Children’s polyurethane foam products
  • Consumer chemicals and containers
  • Corded window coverings
  • Cosmetics
  • Cellulose fibre insulation products
  • Playpens
  • Adult clothing and accessories
  • Bedding
  • Hallowe’en costumes
  • Toys

Across most product categories, instances of non-compliance were found with resulting voluntary corrective action being taken (including voluntary recalls, stop sales, etc.).  No orders were issued.

The Summary Reports can be found here.

Regulatory Cooperation amongst North American Product Safety Regulators

The federal consumer product regulators of Mexico, the United States and Canada issued a joint statement following a Summit held in November 2015.  The Summit focused on customs cooperation, legal frameworks for recalls, international collaboration by nongovernment stakeholders, industry-adopted best practices, the role of voluntary product safety standards, and effective approaches to managing risk.

The joint statement identifies the following areas in which to enhance cooperation before the next Summit (in 2018):

  1. Further developing joint capacity to engage in cross-border product safety and customs cooperation. 
  2. Improving industry's practices regarding prompt notification of each relevant North American regulator when a hazard is associated with a product distributed in two or more North American countries.
  3. Instituting procedures for sharing information about e-commerce vendors and suppliers whose products may pose a common threat to the safety of North American consumers.
  4. Developing a trilateral Memorandum of Understanding as a platform for sustained and increased cooperation on consumer product safety in North America.


What We’re Up To

  • Cassels Brock is pleased to have been recognized as a leading firm in Product Liability in 2015. Some of our group’s accolades include:

i) Peter Henein (Product Liability) and Glenn Zakaib (Product Liaiblity and Class Action Litigation) were selected by Best Lawyers in Canada for 2015.

ii) Glenn Zakaib (Product Liability) was listed in the 2016 edition of the Lexpert®/American Lawyer Guide to the Leading 500 Lawyers in Canada.

iii) Glenn Zakaib was recognized as a “Most Highly Regarded Individual” for Life Sciences and Product Liability Defence in the 2015 edition of Who's Who Legal.

iv) Cassels Brock was identified as a leading firm in the area of Product Liability and Glenn Zakaib was ranked as a leader in the area of Product Liability in Chambers Canada 2016.

  • Peter Henein spoke on "Strategies in Prosecuting/Defending Product Liability Claims" as part of the Practitioner Topics on Product Liability webcast presented by The Commons Institute on November 25, 2015.
  • Peter Henein, Emily Larose and Glenn Zakaib co-authored the Canada Chapter of “Getting the Deal Through: Product Liability” for 2016. A copy of the Canada chapter can be found here.
  • Chris Horkins, Peter Henein and Glenn Zakaib will be attending the DRI Product Liability Conference in New Orleans from February 2-5, 2016. Cassels Brock is a proud sponsor of this year’s conference. Peter Henein will be chairing the joint International and Recreation Products Special Litigation Group session and Glenn Zakaib will be co-chairing the joint Automotive and Biomechanics & Injury Causation Special Litigation Group session.