Ontario Court Rejects Collective Liability Theory

In Gebien v. Apotex Inc., 2023 ONSC 6792, the Ontario Superior Court has partly dismissed, and partly granted, a motion to advance a major opioids class action to the next stage of certification. The Court rejected a theory that proposed collective liability for the entire opioids industry on the basis of a few alleged examples of wrongdoing from certain industry participants, making the decision in Gebien important to high-litigation-risk industries generally.

The plaintiff sought to certify a class of Canadians who were prescribed opioids manufactured, marketed, or distributed after January 1, 1996, and who suffered Opioid Use Disorder. He advanced claims for breaches of the Competition Act, negligence, negligent misrepresentation, and fraudulent misrepresentation against two groups of defendants: those that "manufactured" opioids (the "Manufacturers"), and those that "distributed" them (the "Distributors"). The defendants included most major pharmaceutical