N.S. Court Of Appeal Dismisses Part Of Class-Action Lawsuit Against Organigram
HALIFAX — The Nova Scotia Court of Appeal has dismissed part of a class-action lawsuit against cannabis producer Organigram.
The decision limits the scope of a lawsuit against the company over pesticides found in some of its products.
It means the group suing Organigram won’t be able to include personal injury claims as part of its case but can still take the company to court over refunds for the tainted cannabis it sold.
The 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, Halifax resident Dawn Rae Downton filed the lawsuit on behalf of consumers who bought the tainted cannabis.
Raymond Wagner is one of the lawyers representing Downton and the rest of the class.
He said the lawsuit was initially just a “consumer claim” trying to get refunds for people who bought tainted cannabis from Organigram.
But the lawsuit was later expanded to include personal injuries after Wagner’s firm started getting “complaints from our class members that they suffered from a series of symptoms while consuming this particular product.”
Last year, a trial judge agreed to let both the consumer and personal injury parts of the lawsuit move forward.
Organigram appealed that decision and on April 30 this year the Nova Scotia Court of Appeal overturned it, saying there wasn’t enough evidence to support the personal injury parts of the case.
Nausea, Headaches After Consuming Tainted Product
In court, members of the group suing Organigram said they suffered from symptoms like 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 had caused the symptoms Downton and others had experienced.
However, the judges noted that all cannabis produces its own hydrogen cyanide when smoked, and that “the trace levels of myclobutanil that were present would have produced a negligible amount of additional hydrogen cyanide upon combustion, in comparison to the levels already produced by marijuana alone.”
They also said the symptoms Downton and others described were similar to the predicted side effects of consuming cannabis in general.
Ultimately, the court dismissed the group’s personal injury claims because it said there was no way to prove Organigram’s products had caused any of the symptoms people had experienced.
Wagner believes the group deserves personal injury compensation from Organigram but that there are technical issues standing in the way.
“There are no studies to say what the consequence is of myclobutanil and bifenazate on a human being in these concentrations when combusted,” he said. “And nobody’s ever going to do one because who’s going to subject somebody to something [like] that…just so we can find out whether it does cause harm?”
Without that study, he said, it’s difficult to prove to a court any links between the chemicals and the symptoms members of the lawsuit experienced.
Lawsuit Won’t Affect Business ‘In Any Material Way’
Organigram did not agree to an interview to talk about the court’s decision. But 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.”
“While the ultimate outcome of any court process is difficult to ascertain, 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 was a bit of a “stretch” and that they would be “expanding the law” if they were successful with it.
He said the core of the lawsuit was always the consumer claim, and that he is confident it will be successful moving forward. He said any attempt to downplay what remains of the class action is spin from Organigram.
“I would not call this a gargantuan victory, that’s all PR,” he said.