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N.S. Court of Appeal Overturns Certification of Cannabis Class Action: A Positive Step for Defendants Facing Medical Product Liability Class Actions in Canada

On April 30, 2020, the Nova Scotia Court of Appeal overturned in part the Nova Scotia Supreme Court’s decision to certify a class action against Organigram Inc., a medical cannabis grower with headquarters in Moncton, New Brunswick.

In the decision Organigram Holdings Inc. v Downton, 2020 NSCA 38 (CanLII), the Court of Appeal found that the representative plaintiff failed to show some evidence of a workable methodology upon which causation could be determined on a class-wide basis. As the personal injury claims of the putative class depended on the resolution of a general causation question, the case was not amenable to certification for those claims.

The proposed class action stemmed from product recalls that occurred in 2016 after certain of Organigram’s products were found to contain traces of pesticides that are not authorized for use on cannabis plants under the Pest Control Products Act, SC 2002, c 28. The representative plaintiff claimed that she suffered “adverse health effects” as a result of consuming the recalled cannabis.

The Court of Appeal found that causation for “adverse health effects” could not be made out on a common basis. The effects were framed too vaguely and the methodology proposed by the plaintiff’s expert did not address the facts of the case, as required by the Supreme Court of Canada in Pro-Sys Consultants Ltd. v Microsoft Corporation, 2013 SCC 57.

In the alternative, the Court found that a class action was not the preferable procedure to fairly and efficiently resolve the highly individualized personal injury claims of the proposed class. Even if standard of care and breach of that standard were certified as common issues, the action would necessarily collapse into individual trials, in which each plaintiff would need to establish causation and quantum for the particular “adverse health” symptoms that he or she claimed. As such, the common issues that the Motions Judge certified relating to these personal injury claims were struck from the certification order.

The Court also struck the unjust enrichment claim, as the material facts necessary to maintain the claim were not pleaded.

The decision serves as important confirmation from an appellate level court that the Supreme Court’s decision in Pro-Sys Consultants, which requires plaintiffs to show evidence of a methodology for general causation, applies to personal injury class actions. The Court relied on many medical product and pharmaceutical class action decisions, suggesting that this line of jurisprudence will be persuasive in cannabis product liability class actions. This decision may similarly be of use to medical product and pharmaceutical defendants facing class actions.

Read our previous blog post on the Organigram certification decision here.



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