Gariepy v. Shell Oil Co. - Classaction.ca

chlorine. Celanese supplied Celcon from the 1970's to 1990 when it ceased to sell Celcon for thisuse. In 1986, Celanese informed its customers that it would no longer sell Celcon to manufacturerswho intended to manufacture insert fittings from it unless the manufacturer provided an indemnityto Celanese. Celanese says that this decision was unrelated to any concerns as to the suitability ofthe product for this use but rather reflected the significant litigation costs which it was thenexperiencing in the United States arising out of allegations of improper manufacture, design andinstallation. It was this same concern, Celanese says, that led it to discontinue the sale of Celcon forthis use in 1990.Analysis 28 In order to have an action certified as a class proceeding, the plaintiff must satisfy therequirements of section 5(1) of the Act which states:"The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,(a)(b)(c)(d)(e)the pleadings or notice of applications discloses a cause of action;there is an identifiable class of two or more persons that would berepresented by the representative plaintiff or defendant;the claims or defences of the class members raise common issues;a class proceeding would be the preferable procedure for the resolution of thecommon issues; andthere is a representative plaintiff or defendant who,(i)(ii)(iii)would fairly and adequately represent the interests of the class,has produced a plan for the proceeding that sets out a workable methodof advancing the proceeding on behalf of the class and of notifyingclass members of the proceeding, anddoes not have, on the common issues for the class, an interest inconflict with the interests of the other class members."A. Causes of Action 29 Shell concedes that the statement of claim alleges sufficient facts to found a proper cause ofaction in negligence. Shell disputes, however, that the claims in misrepresentation and breach ofwarranty disclose a reasonable cause of action. Celanese, on the other hand, disputes that thestatement of claim discloses any reasonable cause of action. While it raises the same issuesregarding the other causes of action, Celanese goes further and asserts that, as a raw materialsupplier, it "owes no duty of care or duty to warn to the ultimate consumer of a product designed andmanufactured by someone else". Both defendants also assert that the claims as pleaded purport to