In O'Brien v. Bard Canada Inc., 2015 ONSC 2470 ("Bard"), Justice Perell refused to certify the plaintiffs' claim for waiver of tort. Perell J.'s rationale was not based on the now familiar tension over whether waiver of tort is a cause of action or a remedy, but drew on the increasingly prominent preferable procedure and proportionality concepts.
Bard is a products liability class action regarding a number of pelvic mesh products. For the purpose of his analysis, Perell J. assumed that waiver of tort was a discrete cause of action. Even with that assumption. Perell J. stated that it was 'inconceivable' that the tort claims pleaded would ever be waived in lieu of a claim in restitution for disgorgement. No mention of what the disgorgement amounts might be is noted in the decision, but Perell J. presumably thought that they would be significantly less. He stated:
...it makes no sense and would be irresponsible to the point of absurdity to waive individual tort damage claims which in the aggregate are pleaded to be worth billions of dollars.
Perell J. noted that it may have made sense to certify a claim in waiver of tort in Serhan v. Johnson & Johnson, (2004) CanLII 1533 (ONSC), where there were no damages and waiver of tort was the route to access to justice and behaviour modification, but this was not the case before him.
Surprisingly and without further analysis, Perell J. stated that "It would be reprehensible for Class Counsel to take a contingent fee based on an award calculated on the disgorgement of profits." Supposedly a remedy based on waiver of tort would create conflicts between class members in terms of distribution, and it would be a waste of everyone's time, resources, and energies to calculate disgorgement damages when energies should instead be focused upon compensatory damages.
As a result, Perell J. refused to certify the claim for waiver of tort finding that it would not be reasonable to prosecute it as a class action and that it did not satisfy the cause of action criterion. Further, even if the waiver of tort pleading satisfied the first three certification criteria, it would not satisfy the preferable procedure or representative plaintiff criteria.
Whether this decision signifies an end for the beleaguered and often troubled claim for waiver of tort remains to be seen. It seems doubtful, although defendants will no doubt attempt to rely on this decision in the future.
While it is true that not everything in a statement of claim is amenable to certification as a common issue, particularly as some issues may be individual issues, it is equally true that a statement of claim and the causes of action contained therein remain the provenience and choice of the plaintiffs. It must also be remembered that the mere fact that significant damages are pleaded does not mean that they will be provable.
In any event, this decision is a strong statement from one member of the class action judiciary reflective of an increasing focus on preferability, writ large, and in the maturing certification case law.
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