www.lexpert.ca | LEXPERT • December 2016 | 23
PRODUCT LIABILITY
"For example, it's almost impossible to get drug or medical de-
vice cases certified in the US, but that hasn't meant that there's
no access to justice," Eizenga says. "While these cases may not
normally be viable as one-offs for law firms, they become so when
plaintiff 's counsel and even trial lawyer organizations coordinate
their actions and assemble large numbers of cases."
Paul Miller of Toronto and his firm, Will Davidson LLP, have
spearheaded the mass tort movement in Canada. Encouraged by
the results of the Vioxx litigation in the United States, they de-
cided to forgo a class action in favor of a "mass tort" approach for
their more than 200 clients with claims arising from allegedly de-
fective pelvic mesh devices — despite the fact that Siskinds LLP
and McKenzie Lake Lawyers, two Ontario firms, had already
instituted class actions.
The mass tort movement is finding increasing favor with plain-
tiffs and defendants. "Courts are encouraging it, and both sides
of the class-action Bar are responding and getting good results,"
says Cheryl Woodin of Borden Ladner Gervais LLP in Toronto.
JURISDICTIONAL MAZE
The law on multi-jurisdictional class actions in Canada remains
confused. "The uncertain situation in Canada is ridiculous in
this world of multi-jurisdictional litigation," says Louis Sokolov
of Sotos LLP in Toronto. "It doesn't serve anyone, including the
courts and especially the class members."
Many product-liability class actions are multi-jurisdictional in
nature. The Volkswagen emissions litigation gave rise to some 29
class actions in Canada. Multi-jurisdictional cases are becoming
"more and more frustrating," says Michael Peerless of McKenzie
Lake Lawyers LLP in London, Ont.
Fortunately, decisions from five appellate courts shutting
down duplicative class actions as an abuse of process have re-
stored some order to a near-chaotic situation. "In the last year,
counsel have been able to collaborate
by mutual agreement to avoid multiple
proceedings in multiple jurisdictions,"
Woodin says, citing the system access fee
telecommunication cases and the Volk-
swagen emission litigation.
The SCC, meanwhile, has granted leave
in two cases, Parsons v. The Canadian Red
Cross Society and Endean v. The Canadian
Red Cross Society, that will determine the
right of judges from one province to sit
with judges from others to hear arguments
on multi-jurisdictional class actions. The
entire class-action Bar is hopeful that the
SCC will provide guidance on procedural
steps that could further facilitate dealing
with such cases.
Compounding the problem are carriage
issues, which have become more heated
than ever. "There is definitely a rise in car-
riage fights," says Wendy Berman of Cas-
sels Brock & Blackwell LLP in Toronto.
"The problem is that counsel appear to be
moving away from their prior approach of working out carriage
disputes to letting the courts sort them out."
As Kirk Baert of Koskie Minsky LLP in Toronto sees it, the
courts aren't doing enough. Despite the fact that his firm was part
of the consortium appointed as class counsel in the most recent
decision on carriage, Kowalyshyn v. Valeant Pharmaceuticals In-
ternational, Baert cites the case as indicative of the problematic
nature of the issue.
"Carriage motions continue to be expensive, complex and hard
fought, as evidenced by the fact that the Kowalyshyn ruling is 250
paragraphs long," he says. "We need a better, more objective sys-
tem to determine carriage."
SERIOUS ABOUT ENFORCEMENT
For the first time, Health Canada has imposed significant fines
for non-compliance with the Canada Consumer Product Safety
Act (CCPSA). The case involved a recall notice to an Alberta
company, Orange TKO Industries, regarding its cleaning prod-
uct known as "Orange TKO Super Concentrated All Purpose
Cleaner." The product did not meet the labeling and child-resis-
tant packaging requirements established by CCPSA regulations.
Orange ignored the recall order and continued selling the
product. "The company was warned a number of times and did
not follow through," says Mary Thomson of Gowling WLG
(Canada) LLP in Toronto.
Health Canada classified the violation as serious and in Sep-
tember 2014 fined Orange $75,000, resulting from a fine of
$15,000 per day for the five days that the violation persisted. Sev-
eral months later, HC discovered that Orange had sold the prod-
uct, still bearing non-compliant labels, to a retailer and imposed
an additional penalty of $20,000 in February 2016.
"Health Canada is clearly demonstrating that it wants to be
aggressive in this area," Thomson says.
