A class action against Moncton-based medical cannabis producer OrganiGram has been given the green light to proceed to a trial.
On January 18th the Honourable Justice Ann E. Smith of the Nova Scotia Supreme Court released her decision certifying the action, after a two-day hearing was conducted on June 19 and 20, 2018.
Certification is the first procedural step in a class action. Only if the class action is certified is it permitted to proceed to a common issues trial, where the merits of the allegations are adjudicated.
The allegations in this class action arise from two large-scale recalls, in late 2016 and early 2017, of OrganiGram’s medical cannabis produced between February 1 and December 16, 2016 after products tested positive for myclobutanil and/or bifenazate. They are both unauthorized pesticides under the regulations applicable to medical cannabis.
The recall initiated on January 9, 2017 was a Type II recall, which Health Canada classifies as a situation in which “the use of, or exposure to a product may cause temporary adverse health consequences, or where the probability of serious adverse health consequence is remote.”
The proposed class action was filed on March 3, 2017, and an amended claim was filed on November 16, 2017 to include allegations that the recalled products have caused physical harm to purchasers.
Wagners (Halifax, NS), acting on behalf of the class of purchasers of the recalled product, has received reports from clients of negative health effects that began after consuming the recalled product.
In addition, clients want to be refunded the money they spent on the recalled product, since it failed to meet their expectations that it was compliant with the regulatory regime and free of unauthorized pesticides.
Commenting on Friday’s decision, Mr. Ray Wagner (Wagners, Halifax) comments: “With the action being certified, we can now move ahead to the step of requiring OrganiGram to produce relevant documents, as we prepare for trial. We anticipate being able to resolve questions OrganiGram purchasers have had about how these unauthorized chemicals came to be present in the medical cannabis they ingested. Our clients consist of a large class of thousands of purchasers who all have the same claims and seek the same remedies. Justice Smith, in certifying the action, commented that a class action is a fair, efficient and manageable method to advance the claims of class members. By streamlining the action into a class action, we have avoided a multiplicity of law suits, saving time and resources for everyone, including the Court.”
In Justice Smith’s decision, Her Ladyship rejected the idea advanced by counsel for OrganiGram that the remedial steps it took after the recalls and its cooperation with Health Canada in the recall process minimized the importance of behaviour modification – an objective of class actions. “Litigation, on the evidence before this Court, better achieves the goal of behavious modification, than allowing Organigram to, after the fact, initiate pesticide testing and other safety measures without exposing itself to the rigour that a lawsuit will bring,” Justice Smith writes in her decision.