Where The Rubber Meets The Road: Evidentiary Burdens And Gain-based Remedies In Product Liability Class Actions

The Alberta Court of Appeal recently overturned a class certification order and made important comments on a representative plaintiff's evidentiary burden at the certification stage, as well as on the viability of claims for gain-based remedies (i.e., restitution and disgorgement) in the context of product liability class proceedings.

In particular, the decision, Spring v. Goodyear Canada Inc, 2021 ABCA 182, is significant for reaffirming the rigorous analysis required to establish a common issue in product liability cases that concern a range of products. In addition, the Court clarified that the web of contracts in the supply chain constitute legal justifications (or "juristic reasons") which effectively forecloses an action by a consumer against a manufacturer for unjust enrichment – absent a legal basis for disregarding these contracts. Further, the decision also sets a high bar for obtaining disgorgement in product liability cases, as the Court held the remedy