ONLY a handful of pharmaceutical product liability cases have been tried in Canada, with the leading case being a decision from the mid-1980s involving reports of stroke in association with the use of oral contraceptives.1 There are many reasons for this, some of general application and some unique to Canada. For example, damage awards in Canada have historically been much lower than in the U.S., and most provinces have a loser pays costs system. Accordingly, plaintiffs counsel are likely to be more careful to ensure they pursue only serious cases that they have good reason to believe have merit, and the cost of settling for defendants may often be less than the cost of defending. Further, because fewer cases are brought in Canada and plaintiff firms with inventories are rare, the benefits of a favorable trial verdict, beyond the individual case, are less compelling for both plaintiffs and defendants. However, recent developments in class actions (with a spillover effect on individual cases) and the expanded ability (both legal and practical) of plaintiffs' counsel to solicit new cases are changing the landscape for pharmaceutical product liability litigation in Canada.
This article will (1) describe developments in mass tort litigation in Canada, with particular focus on pharmaceutical litigation, (2) describe the causes of action and remedies pursued by plaintiffs, and the defenses asserted, in such litigation; and, (3) discuss relevant aspects of Canadian procedure and trial practice.
I. Mass Tort Treatment of Pharmaceutical Product Liability Litigation
Class actions are permitted in all provinces in Canada,3 with most having enacted specific class action legislation.4 In the provinces that have enacted specific legislation other than Quebec, an action can be certified as a class action if the plaintiff can establish that (a) there is a sustainable cause of action (which will be assessed based on the pleadings alone), (b) there is an identifiable class with two or more persons, (c) the claims of those persons have substantial issues of fact or law in common, (d) a class action is the preferable procedure for resolving the common issues having regard to the objectives of the legislation - access to justice, judicial economy and behavior modification, and (e) the proposed representative plaintiff can adequately represent the interests of the class.5
Although the Supreme Court of Canada has said that in considering whether a class action is the preferable procedure for resolution of the common issues, the court should look at preferability in the context of the action as a whole, including the individual issues,6 the Supreme Court has also stated that predominance is not a requirement for class certification. Accordingly, the test for class certification is generally considered to be lower in Canada than in the U.S. As a result, a decision in the U.S. certifying a class may have persuasive significance in a Canadian class certification motion, but a decision in the U.S. denying class certification will likely carry much less weight.
The Supreme Court of Canada has held that, before certification of a class action will be granted, the plaintiff must establish "some basis in fact" for each of the certification requirements, other than the requirement that the pleadings disclose a cause of action.7 Responding counsel are permitted to file responsive evidence in support of their position on the certification motion, including expert evidence. The Supreme Court of Canada has held, however, that the certification stage is not meant to be a test of the merits of the action.8 Much of the argument in Ontario product liability class certification hearings will be focused on whether the plaintiff has provided some evidence that there is a way to prove class wide loss and, if not, how that renders the class definition overly broad, the alleged common issues not common and a class action not preferable. …