This was an Application for certification of a class proceeding alleging that Bayer Inc. failed to adequately warn users of its Mirena contraceptive device about the risk of device migration. Justice Feasby certified the Action but raised significant concerns regarding the routine pleading of punitive damages in class proceedings.

The Court invoked Rule 1.2, which requires the Rules to be interpreted in a manner that resolves claims in a just, fair, timely, and cost-effective way. Justice Feasby criticized the uncritical inclusion of punitive damages claims, noting that such pleadings often inflame litigation, entrench positions, discourage settlement, and undermine judicial economy, outcomes that are inconsistent with Rule 1.2.

Despite these concerns, the Court certified the punitive damages issues (Common Issues 11 and 15) on the basis that there was “some basis in fact” to support them, which satisfies the threshold for certification. The Court acknowledged the asymmetry of information, observing that Bayer Inc. may be the only party in possession of relevant internal records, and that refusing certification prematurely could unfairly prejudice the proposed class.

The Court ultimately certified the class action for the reasons set out in its Judgment.