Palmer: Certification Denied For Class Action Based On Risk Of Future Harm

In Palmer v. Teva Canada Limited¹, the Ontario Court of Appeal dismissed the plaintiffs' appeal from the lower court's decision denying certification of a proposed product liability class action that claimed damages for a potential increased risk of being diagnosed with cancer in the future. The Court's decision confirms that this type of alleged harm is not compensable, and also that proposed common issues must have a minimal evidentiary foundation to clear certification.

What you need to know

• No compensation for risk "in the air". In order for a proposed class action in negligence to be viable, actual harm (compensable damage) must be alleged. Exposure to an increased risk of future harm is not compensable and, therefore, cannot ground a cause of action for a class action.