Inside Organigram's mineral-based clone room. (Image: Inda Intiar/Huddle)
The group of consumers suing Organigram over pesticides found in its products will not be allowed to include personal injury claims as part of its case.
Last week, the Supreme Court of Canada declined to hear a challenge from the group, which wanted to overturn a decision made by the Nova Scotia Court of Appeals in May.
In May, Justice Peter Bryson sided with Organigram when he ruled there wasn’t enough evidence to support the consumers’ claims they had been physically harmed by the tainted products.
The group, represented by Halifax’s Dawn Rae Downton, hoped to challenge that ruling in Canada’s Supreme Court.
The Supreme Court’s decision not to hear the challenge doesn’t mean the class-action lawsuit against Organigram is dead. Although the class can’t sue for personal injury, it can still take Organigram to court to force the company to pay refunds for the tainted cannabis it sold.
Not Enough Evidence Pesticides Were Harmful
The class-action lawsuit stems from two major product recalls Organigram issued in 2016 and 2017 after trace amounts of the pesticides bifenazate, malathion, and myclobutanil were found in its products.
Health Canada says all three chemicals are safe for agricultural use in appropriate amounts but hasn’t authorized the use of any of them on cannabis.
Once the pesticides were discovered, Organigram voluntarily recalled 74 batches of its product. Not long after, Downton filed the lawsuit on behalf of consumers who bought the tainted cannabis.
RELATED: N.S. Court Of Appeal Dismisses Part Of Class-Action Lawsuit Against Organigram
The initial lawsuit was a narrower “consumer claim” simply seeking refunds for the tainted products.
Raymond Wagner, the lawyer representing Downton and the rest of the class, says it was later expanded to include personal injury claims after “complaints from our class members that they suffered from a series of symptoms while consuming this particular product.”
The series of appeals that have followed have seen Wagner and Organigram argue over whether those personal injury claims were valid.
RELATED: Organigram Lawsuit Reaches Supreme Court
Organigram has argued, and the court has agreed, it’s impossible to know whether the pesticides specifically and not just cannabis use in general, caused the symptoms Downtown and others described in court.
Wagner has complained the court’s threshold for evidence makes it almost impossible for people seeking damages related to relatively new products to successfully win an argument.
“This basically gives a free pass for people that are doing things unlawfully,” he told Huddle earlier this year.
“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.
Lawsuit Will Have No ‘Material’ Effect, Says Organigram
Organigram has consistently declined to answer questions about the court case. However, in a press release, the company said it will “continue to defend what remains of the class action” and has already voluntarily reimbursed “many of its customers.”
“Organigram management does not anticipate that what remains of the class action (including the resolution thereof) will affect its business or operations in any material way,” the release reads.
Wagner and his team knew arguing for the personal injury portion of the lawsuit was a “stretch,” but said the what remains of the class-action is still significant and any attempt to downplay it is spin from Organigram.
“I would not call this a gargantuan victory, that’s all PR,” he said.
Trevor Nichols is a reporter for Huddle, an Acadia Broadcasting content partner.
