Organigram Holdings Inc. v. Downton et al.

2020 NSCA 38
No description
Final judgment
Canada, Nova Scotia

Economic stakeholders
Organigram Holdings Inc
No description

Civil court
Myclobutanil, Bifenazate
Challenge the class certification order issued in the first instance
The Nova Scotia Court of Appeal of Nova Scotia, Canada

April 30, 2020
No description
Appeal allowed in part. Clauses in the certification order relating to unjust enrichment and damages for personal injury must be deleted.
No description

On January 18, 2019, the Supreme Court of Nova Scotia certified a product liability class action brought by Dawn Rae Downton, representing a group of purchasers of batches of medical cannabis that were recalled due to the illegal presence of two phytosanitary substances, myclobutanil and bifenazate. The class action was filed against the producer, Organigram Corporation, to obtain compensation for various damages, such as adverse health effects resulting from the consumption of these non-compliant products.

In the first instance, the certification of the action as a class action is granted for all claims, i.e. those specific to consumers (breach of contract, breach of the Competition Act, breach of the Sale of Goods Act...) on the one hand, and those relating to personal injury arising from the presence of these illegal substances, on the other.

Organigram appealed, alleging, among other things, that the class certification was erroneous in admitting the personal injury claims because the adverse health effects that justified a common claim were not identified, and there was no evidence that the product in issue was the cause of the alleged injuries.

On April 30, 2020, the Nova Scotia Court of Appeal allowed the claim and reversed the trial decision in part.

According to the Court of Appeal, there is no evidence of a viable methodology for determining whether the disputed product is capable of causing any disease based on the facts of the case. The symptoms described by the consumer group representative, such as nausea and vomiting, are considered by Health Canada to be side effects associated with cannabis use in general. A causal link between the pesticide-contaminated batches and the symptoms has therefore not been demonstrated to permit a common personal injury claim. The common personal injury claims are therefore withdrawn from the certification order.

The unjust enrichment claim is also removed.

As a result of the appeal decision, the class action includes only consumer-specific claims based on breach of contract, the Consumer Protection Act and the Sale of Goods Act. Any remaining personal injury claims, however, can be litigated individually to determine liability and damages.

In an attempt to revive some of the common issues, the consumer group sought leave to appeal the decision to the Supreme Court of Canada. On November 5, 2020, the application was dismissed with costs.