November 03, 2011 Articles

Canada's Consumer Product Safety Act: A Catalyst for Cross-Border Mass Tort Litigation?

By Gary Wolensky, Anne Marie Ellis, and Kelly Regan

New and expanded product safety legislation in Canada, superimposed on a backdrop of jurisdictions willing to certify mass tort and personal injury claims, has created an environment ripe for increasing class action activity across the United States-Canada border. Thus, the development of the law governing cross-border production issues bears watching.

Mass tort claims north of the 49th parallel are a popular choice for plaintiffs’ counsel in part because of the perception that the certification of personal injury claims is less onerous in Canada. There is no national class action legislation. Class action legislation of some type exists in all provinces except one (Price Edward Island). In Ontario, class actions are governed by the Class Proceedings Act, (1992 S.O. 2006, c. 6.), and must first be certified by a court before they can proceed. It is important to note that, unlike the American regime, is the Ontario statute has no predominance requirement. W. Canadian Shopping Ctrs. v. Dalton, [2001] 2 S.C.R. 534, [2000] S.C.J. No. 63, para 39 (QL). Instead, common issues relating to duty of care, whether a defect exists, and the state of the manufacturer’s knowledge of the defect may satisfy the common issues threshold in the appropriate case, despite the necessity of individualized assessment of causation and damages, if it is found that they will “advance the litigation” and “avoid duplication of fact finding or legal analysis.” Ford v. F. Hoffmann-La Roche Ltd., [2005] 74 O.R. 3d 758, [2005] O.J. No. 1118, para. 38 (S.C.J.) (QL).

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