On February 21 2013 the Divisional Court of Ontario upheld a landmark decision denying certification of a product liability class action.

In the short oral decision in Martin v AstraZeneca Pharmaceuticals, the Divisional Court of Ontario endorsed the reasons and analysis of Justice Horkins, a lower court judge who had denied certification of a proposed class action involving an anti-psychotic drug (for further details please see "Ontario court denies certification in pharmaceutical class action").

In reaching this conclusion, the court disagreed with the plaintiff's argument that the lower court judge had inappropriately engaged in a detailed weighing of facts that was not permissible at the certification stage. Instead, the court found that the judge had applied the correct legal test when she concluded that the plaintiff had failed to plead sufficient facts to support the allegations that the defendants had failed to warn class members of risks associated with the drug and had been negligent in the manufacture of it.

The court's decision is an important endorsement of the underlying case, which is one of the few cases in which Canadian courts have refused to certify product liability class actions. The Martin v AstraZeneca decision contains a variety of important rulings on product labels, off-label use and the treatment of causation at the certification stage, and the decision not to interfere with the underlying decision is an important development in relation to class actions in Canada.

For further information on this topic please contact Randy C Sutton or Alex Dimson at Norton Rose OR LLP by telephone (+1 416 216 4000), fax (+1 416 216 3930) or email (randy.sutton@nortonrose.com or alex.dimson@nortonrose.com).

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