Ontario Court of Appeal Makes Important Class Action Ruling

The Ontario Court of Appeal ruled on September 1, 2002, that class actions naming manufacturers of similar products must include a representative plaintiff for each proposed defendant. Trevor Hughes, the plaintiff, had been attempting to have a class action suit certified against four manufacturers of allegedly dangerous smoke detectors, but the court agreed with a lower court ruling that all claims against three of the four should be struck out on the grounds that Hughes had not purchased any of their models. The only model he had purchased had been manufactured by First Alert, the fourth defendant named.

The court held that Hughes could not keep the three manufacturers in the proposed class action by alleging that some as yet unknown members of the proposed class may have a cause of action against the other manufacturers if the action were later certified as a class proceeding. The court specifically rejected the reasoning of the B.C. Court of Appeal that there is no requirement that there be a representative plaintiff with a cause of action against every defendant. The Ontario decision will force plaintiffs to proposed class actions to enlist more individuals to act as representative plaintiffs. The decision is also significant in that the Court of Appeal struck the entire claim against the defendant Underwriters’ Laboratories of Canada (UL Canada) on the basis of the court’s finding that an independent third-party tester does not owe a duty of care to consumers in such a case. The plaintiff is currently seeking leave to appeal to the Supreme Court of Canada.

Ronald Flom and Robert Trifts in Toronto represented Trevor Hughes. Acting for the four manufacturers were Peter Howard and Patrick O’Kelly of Stikeman Elliott LLP. Paul Martin and Paul Monahan of Fasken Martineau DuMoulin LLP acted for UL Canada.