Written By Peter Douglas

The Supreme Court of British Columbia’s recent December 2023 decision in MacKinnon v Pfizer Canada Inc. (MacKinnon) illustrates that certifying a national class action against product manufacturers based on breaches of provincial consumer protection statutes remains onerous.

The plaintiffs in MacKinnon sought to certify a class proceeding against various pharmaceutical manufacturers alleging that birth control products they manufactured were not effective in preventing pregnancies. In addition to claims in negligence regarding manufacturing defects, the plaintiffs alleged that the defendants engaged in unfair practices in violation of various provincial consumer protection statues by misrepresenting that the birth control products contained certain ingredients and that they were more than 99 percent effective in preventing pregnancy.

While the Supreme Court of British Columbia granted certification of certain claims under a number of the provincial consumer protection statues, the Court declined to certify claims under Ontario’s Consumer Protection Act, 2002 and Prince Edward Island’s Business Practices Act, finding that privity of contract is required in those provinces in order to advance claims under these statutes.

As the plaintiffs and the proposed class members in this case did not purchase the alleged defective birth control products directly from either of the defendant manufacturers, they did not have a relationship of contractual privity with either of the defendants. For this reason, the Court struck the plaintiffs’ claims under the Ontario and Prince Edward Island consumer protection statutes as the claims were doomed to fail.

Looking Forward

This decision highlights that there are stark differences in the requirements to advance claims under the consumer protection statutes of each province. For instance, as found by the Supreme Court of British Columbia in MacKinnon, it has been repeatedly recognized that privity of contract must be plead in order to advance claims under the statues of Ontario, Prince Edward Island, and Newfoundland and Labrador, while the consumer protection statutes of all other provinces do not include such a requirement.

It has also been recognized that plaintiffs must plead that proposed class members relied on alleged misrepresentations in order to advance claims of unfair practices under the consumer protection statues of British Columbia, Alberta, Saskatchewan, Prince Edward Island, and Newfoundland and Labrador. This requirement—which poses additional difficulty in asserting that claims have sufficient commonality to be determined on a class-wide basis—is not required under the statutes of Ontario and Manitoba.

Because of these differences, it is exceedingly rare for class proceedings to be certified on a national basis with only breaches of provincial consumer protection legislation as the certified causes of action. So long as these legislative differences continue, we expect to continue to see plaintiffs seek to certify other causes of action alongside consumer protection claims—such as breaches of the Competition Act, breach of contract or common law torts such as negligence—in order to avoid the more stringent requirements of certain provincial consumer protection statutes.

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