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Class Actions (Ont) - Pleadings. Fernandez Leon v. Bayer Inc.
In Fernandez Leon v. Bayer Inc. (Ont CA, 2023) the Court of Appeal considered the standard of pleadings in class actions, here in a product liability case:[12] We do not agree with Bayer that in every case where a plaintiff alleges negligence in the design and manufacture of a product, the statement of claim must be struck unless it identifies the specific defect in the product that caused the injury. The particulars of a specific defect are not in our view elements of the tort that are always required to be pleaded before the claim discloses a cause of action. To identify a specific manufacturing or design defect in every case would place too onerous a burden on a plaintiff at the stage of initiating a proceeding in a product liability action. In this case, involving a medical device that is alleged to have caused injury after it was implanted for its intended use, the appellants meet the requirement to plead a cause of action in negligence, even if they cannot at this time identify a specific defect in the product’s manufacture or design.
[13] Bayer’s reliance on two decisions of the Superior Court, Kuiper v. Cook (Canada) Inc., 2018 ONSC 6487, rev’d in part on other grounds, 2020 ONSC 128, 149 O.R. (3d) 521 (Div. Ct.) and Martin v. Astrazeneca Pharmaceuticals Plc, 2012 ONSC 2744, is misplaced. Both decisions involved certification motions in proposed class proceedings, where the test for certification includes the identification of proposed common issues and requires the proposed representative plaintiff to meet the evidentiary threshold of showing “some basis in fact” to show a defect in the product or products at issue that is common across the proposed class. In Vester v. Boston Scientific Ltd., 2015 ONSC 7950, by contrast, the proposed representative plaintiff was found to have pleaded a cause of action in negligent design notwithstanding a failure to identify a specific design defect, but her failure to identify a common defect across the various products at issue was fatal to the certification of the action as a class proceeding: at paras. 100-103, 116-126.
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