N.S. court reduces scope of lawsuit over tainted Organigram cannabis
Not enough evidence that medical marijuana made user sick, ruling says
Nova Scotia's Court of Appeal has significantly reduced the scope of a class action lawsuit against Moncton-based cannabis producer Organigram Inc.
The case alleged that medical marijuana tainted with pesticides not approved for use on cannabis made customers using the product sick.
The ruling says the plaintiff failed to present enough evidence that the cannabis caused illness. As a result, members of the class can't claim damages for health effects.
"There is no evidence that there is a workable methodology to determine that the proposed adverse health-effects claims have a common cause," Justice Peter Bryson wrote in the decision.
What remains in the case relates to reimbursement of payments to customers who purchased cannabis in 2016.
"Organigram will continue to defend what remains of the class action as it has already voluntarily reimbursed many of its customers for this recall via a comprehensive credit and refund program," said a statement issued by Organigram Thursday.
The company declined an interview request.
The class-action lawsuit was filed after two large recalls in late 2016 and early 2017 of medical cannabis produced between Feb. 1 and Dec. 16, 2016 after testing found "trace" amounts of bifenazate, malathion and myclobutanil.
The pesticides are authorized for agricultural use but not for cannabis.
Dawn Rae Downton of Halifax is the representative plaintiff in the case.
Downton said she experienced nausea, dizziness and headaches, symptoms that subsided after she stopped consuming Organigram's cannabis.
Ray Wagner, a lawyer representing Downton, said they are disappointed with the decision but called it a tough case to prove.
"It underlines the difficulty in these types of cases where you have a toxin that may have been ingested by an individual and the difficulty they have in establishing that their illness or harm they suffered is directly connected," Wagner said in an interview Friday.
He said they are considering whether to seek leave to appeal to the Supreme Court of Canada.
"This is a very difficult area of the law, and it will require some very special consideration and discussion with our clients to see if they have the appetite to do that," he said.
Wagner said they'll continue with the consumer protection portion of the case that was originally filed. The health-effects allegations were added after the case was originally filed.
"How did those products, bifenazate and myclobutanil, make it on to the cannabis that was being sold, some which was being sold as organic? That's a big issue and we're going to drill down heavy on that question," Wagner said.
Lower court judge erred
The class action was certified, a procedural step that allows it to proceed, by a Nova Scotia judge last year.
The company appealed that certification, arguing there wasn't a methodology for establishing a connection between its cannabis and the symptoms customers alleged.
The three-judge appeal court panel agreed in the ruling issued Thursday, stating the judge who certified the case erred in that decision.