Ethan Schiff is a featured writer for the Ontario Bar Association's Class Actions section, where he details two recent cases establish that effective recall programs can undermine a plaintiff’s proposal to certify a product liability class action.
In Larsen v. ZF TRW Automotive Holdings Corp, 2023 BCSC 1471 [Larsen], the Court relied on the Ontario Superior Court of Justice’s decision in Coles v FCA Canada Inc, 2022 ONSC 5575 [Coles], which dismissed certification of a class action alleging airbag failures. The Court in Coles "held that a recall program was preferable to a class action when the plaintiff “dawdled” for years rather than seek certification promptly". The Court in Larsen did not address the timing issue, but concluded that the free recall repair provided the proposed class members with access to justice.
In Bowman v. Kimberly-Clark Corporation, 2023 BCSC 1495 [Bowman], the Court considered certification of two subclassesas. As with Larsen and Coles, the Court in Bowman declined to certify the economic loss subclass. However, the Court "granted certification of the personal injury subclass because, among other things, there was insufficient evidence that the recall and refund program’s notice and compensation for allegedly injured proposed class members was adequate." The Court also "held that a class action was appropriate for such claims because certification would motivate the defendant to “put together a structured and comprehensive compensation program”, in the absence of any evidence about the compensation and notice provided."
The full article is available on the Bar Association of Ontario's website.