An Ontario court has held that Ontario’s more restrictive certification regime may require narrowing class members’ damages claims. Ontario’s class proceedings legislation is an outlier in Canada—unlike corresponding legislation in all other provinces (except for Prince Edward Island), class action certification requires that the “questions of fact or law common to the class members predominate over any questions affecting only individual class members”. In Pedersen v. Advanced Bionics LLC, 2026 ONSC 2239, the Ontario Superior Court concluded that compliance with Ontario’s predominance provision required limiting class members’ general damages claims to only “direct medical consequences”.
The plaintiff in Pedersen alleges defects and failures to warn associated with surgically implanted cochlear implants for hearing impaired persons. He also alleges that the defendants’ cochlear implant devices contain a defect placing them at risk of short circuiting and necessitating surgical replacement. The implants were subject to recalls in the United States and Canada.
The defendants opposed certification generally. Among other arguments, the defendants asserted that the individual issues inherent in the class members’ claims predominate over the common issues. The defendants identified that causation could not be determined on a class-wide basis, and diffuse damages considerations would be subject to individualized determinations accounting for class members’ personal medical histories. The harms alleged included, among other things, sleeplessness, anxiety and job loss, for which no connection to the alleged defect could be demonstrated on a common basis.
Justice Morgan concluded that a class action envisioning individual determinations of all possible alleged damages would not comply with the predominance requirement. Instead, he certified the class action only on the premise that the “extended health and socio-economic losses are eliminated from the post-common issues phase”. The approach highlights that Ontario courts are focused on ensuring compliance with legislative guardrails, including by narrowing the representative plaintiff’s certification proposal.
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- In addition to satisfying the predominance requirement, Justice Morgan concluded that the limitation on individual damages addressed the defendants’ arguments regarding alleged deficiencies in the plaintiffs’ proposed litigation plan.
- The Court’s decision to permit plaintiffs to seek damages associated with medical monitoring may be inconsistent with precedents in which such costs were deemed unrecoverable: see e.g., Palmer v. Teva Canada Ltd., 2024 ONCA 220.
- The decision to limit the scope of damages may be analogized to an application of proportionality considerations, which are generally considered in the certification test’s preferable procedure criterion, including outside of Ontario: Chow v. Facebook, Inc., 2022 BCSC 137 at paras 99-100.
- Justice Morgan held that the plaintiffs’ proposed class definition was overbroad. He amended the class definition to include only individuals “whose Cochlear Implants have undergone a hard failure”, based on the plaintiff’s expert’s evidence that such “hard failures” are associated with the defect alleged.
- Justice Morgan held that a proposed cause of action based on a “duty to recall” was not “destined to fail”, even though no prior case law has recognized such a cause of action. Creation of a corresponding cause of action at common law would arguably constitute a significant, not incremental, expansion of Canadian product liability law.
