Article by Trevor Nichols, Huddle
The class-action lawsuit against Moncton-based cannabis producer Organigram has made its way to the Supreme Court of Canada.
Halifax’s Dawn Rae Downton represents the class, which is suing Organigram over pesticides found in some of the company’s products.
Downton hopes to challenge a decision by the Nova Scotia Court of Appeals that prevents the class from including personal injury claims as part of the case.
To do that, she must convince the Supreme Court to hear the case by seeking a “Leave to Appeal” (essentially permission to appeal her case to the higher court). Raymond Wagner, the lawyer leading the case, has applied for that permission on behalf of the class and is now waiting to hear if the court will take the case.
At the heart of the appeal is the question of how Canada’s courts treat personal injury claims against new products, when no scientific studies exist that can back up the claim.
In the case of Organigram, members of the class told the Nova Scotia Court of Appeals they suffered from nausea, gastrointestinal issues, breathing difficulty, and headaches after smoking the recalled cannabis.
Some of the pesticides found in Organigram’s cannabis are known to produce hydrogen cyanide when combusted (which happens when you smoke). Wagner and his team argued that the hydrogen cyanide Organigram’s tainted cannabis produced caused the symptoms.
But the Nova Scotia court ultimately dismissed the argument, saying there was no way to know the pesticides specifically (and not just cannabis use in general) caused those symptoms because there are no studies looking at the effects of the specific pesticides found in Organigram’s products.
Wagner says the court’s threshold makes it almost impossible for people seeking damages related to a relatively new product to successfully win an argument. He says the full effects of many new technologies haven’t been properly studied but still have the potential to cause real harm.
“This basically gives a free pass for people that are doing things unlawfully,” he said.
“The problem is that when you’re harmed by something… somebody does something unlawful [like] putting chemicals in a product that causes you harm, and you can’t prove on a general causation point of view that that is the reason why you suffered… then you’re done,” he said.