Sunscreen Litigation Reminds Potential Class Action Plaintiffs that Effort is Required to Meet Certification Requirements

When a company is named as a defendant in a class action lawsuit, it is imperative that the case be taken seriously from the outset and vigourously defended at every stage. Similarly, potential class counsel must put in legwork to ensure that a prospective case will meet the legislative and procedural requirements for certification as a class action. Failure to do so can result in serious cost consequences.

These lessons were reinforced in a recent decision by Justice Strathy of the Ontario Superior Court in Singer v. Schering-Plough Canada Inc., in which he dismissed two motions for certification involving sunscreen products manufactured by Schering-Plough Canada Inc. and Playtex Limited under the Coppertone® and Banana Boat® brand names. The proposed representative plaintiff, Brian Singer, sought $20 million in damages. Singer alleged that Schering-Plough and Playtex had misrepresented the effectiveness of their sunscreen products by, among other things, advertising their products to have "UVA/UVB protection," thereby allegedly misleading consumers to believe the products provided equal protection from both UVB and UVA rays.

In dismissing the motions, Justice Strathy concluded that the plaintiff met none of the five requirements for certification under Section 5 of the Class Proceedings Act. The plaintiff pleaded causes of action that were not available to him, and improperly pleaded causes of action that were unsuitable for certification in a class action. There was no evidence of an identifiable class sharing the plaintiff’s expressed interest in an issue that Justice Strathy noted "appears to have been conceived by lawyers." Further, there was a lack of connection between the common issues and the causes of action pleaded, and no evidence or basis in fact for the proposed common issues. A class proceeding was not the preferable procedure because it would be unmanageable and inefficient, there was insufficient evidence of a real complaint (and in any event, it could be pursued in Small Claims Court or as a test case), and there was an appropriate statutory and regulatory regime in place to which complaints could be directed. Justice Strathy also concluded that the proposed representative plaintiff was not suitable for this case.

Notably, Justice Strathy was critical of the plaintiff’s apparent lack of research of the Canadian regulatory regime and of the lack of effort invested by the plaintiff, stating:

I must say that the statement of claim in this action looks as if it has been borrowed from a US pleading without adequate research of the Canadian regulatory regime…These circumstances make me question whether adequate effort and investigation has been made in the preparation of these two actions which seek to represent millions of consumers.

Justice Strathy concluded his reasons as follows:

The certification of these actions would not serve any of the goals of the [Class Proceedings Act]. It would not provide access to justice because there is no class of people who have suffered damages and are looking for justice. Far from promoting judicial economy, it would saddle the court with two massive class actions that have been cobbled together with an insufficient legal and evidentiary foundation. It would not result in behaviour modification because there is a sophisticated and scientifically supported regulatory system that serves that very purpose. In my view, the public will be rightly cynical, and the administration of justice will be brought into disrepute, if the class action process is used to prosecute theoretical and insubstantial wrongs, creating massive and enormously expensive litigation, but not redressing real injuries suffered by real people.

McCarthy Tétrault Notes

Following the dismissal of the certification motions, Justice Strathy ordered the plaintiff to pay $200,000 in costs to each of Schering-Plough and Playtex. Justice Strathy affirmed the principle that "costs follow the event" in litigation. This decision should remind prospective plaintiffs and plaintiffs’ counsel that serious cost consequences can result when advancing unsuccessful claims. Justice Strathy noted that "a failure to hold parties accountable for the costs of litigation will only serve to encourage speculative and unmeritorious claims."

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