An Ontario court certifies a cochlear implant class action, keeping a novel duty-to-recall claim alive
Half of all cochlear implants made by Advanced Bionics may have failed, and the patients who suffered are now one step closer to their day in court. The Ontario Superior Court of Justice has certified a national cochlear implant class action against Advanced Bionics LLC and related companies, opening the door for roughly 250 Canadians who received defective hearing devices to seek damages together.
Pedersen v. Advanced Bionics and defective medical device claims
In Pedersen v. Advanced Bionics LLC, 2026 ONSC 2239, the claim alleges a design defect that caused bodily fluids to seep into the electrode array of the implanted devices, short-circuiting its users.
When a cochlear implant fails, its removal requires invasive surgery, followed by a painful readjustment period that does not always restore full hearing. Evidence on record shows up to 50 percent of the defendants’ devices have failed this way. Worse, approximately 50 of the roughly 250 class members were minors at implantation; children whose skulls had grown around the original device, making revision surgery especially difficult.
While the defendants knew of the defect by March 2019, they did not notify their patients or healthcare providers until February 2020.
The cochlear implant class action and the duty to recall
No Canadian court has previously recognised a standalone duty to recall in product liability law. This case kept that novel claim alive in this cochlear implant class action, holding that if it is prudent to recall a defective product, it is by definition negligent not to do so.
The court drew on the reasoning in Vester v. Boston Scientific Ltd., 2015 ONSC 7950. In that case, it was confirmed that a manufacturer’s duty to warn is a continuing one that extends beyond the point of sale, and applied that same logic to the recall context.
In Pedersen, the three certified causes of action are:
- negligent design
- failure to warn
- failure to recall
Negligent manufacturing was dropped by the plaintiff before the hearing.
As the duty to recall has not yet been tested on a full factual record, its survival at the certification stage means it is now live in Ontario product liability litigation.
Narrowing the class and capped damages to achieve certification
Ontario’s Class Proceedings Act (CPA) now requires common issues to predominate over individual ones. To satisfy that bar, the Pedersen court imposed strict limits on the certified claim:
- the class is limited to patients whose devices experienced a hard failure, i.e., a malfunction objectively measurable by electronic testing and documented by the manufacturer
- compensatory damages are capped at a base level covering bodily injuries common to all who underwent revision surgery, while punitive damages may be assessed class-wide
- individual general damages are limited strictly to medical costs, and no claims for job loss, isolation, or lifestyle impacts can be made
For personal injury lawyers pursuing medical device claims in Ontario, the template is now set: define the class around an objectively verifiable injury, and limit damages to what can be assessed in common.
Bookmark Canadian Lawyer’s Personal Injury page for more news, articles, and updates for Canadian legal professionals.
