Peter Pliszka, partner at Fasken Martineau DuMoulin LLP, has successfully defeated an appeal by representative plaintiffs in an appeal from a motion judge’s decision refusing to certify a proposed pharmaceutical product liability class action.
The lawsuit involved allegations that the hypertension drug, Valsartan, had been contaminated by nitrosamines (“NDMA” and “NDEA”), which the plaintiffs alleged are carcinogenic. The Ontario Court of Appeal agreed with the defendants’ position that the harm alleged by the plaintiffs was non-compensable because the plaintiffs failed to present evidence establishing a basis in fact of general causation (i.e., that nitrosamines are carcinogenic in humans), no physical harm had actually materialized (i.e., the plaintiffs did not even allege that any person had actually developed cancer as a result of ingestion of any contaminant) and any psychological harm allegedly experienced by some individual members of the class upon their learning of the recall did not meet the Canadian test for legally compensable psychological harm (“serious and prolonged”).
This is a welcome decision for all potential defendants to product liability class actions in Canada; the Court of Appeal reaffirmed the principle that the law of torts is intended to protect people from actual harms, not the mere alleged creation of risk, and thus where there is no legally compensable harm, there is no claim to be certified.