In what circumstances will the common issues judge determine whether a product was negligently designed and that it did not work?

Ontario, Canada

The following excerpt is from Cannon v. Funds for Canada Foundation, 2012 ONSC 399 (CanLII):

In this particular case, reading the pleading generously, there are allegations that the “product” – the Gift Program – was negligently designed and that it did not work. There are also allegations that the defendants negligently made misrepresentations that it would work. It is conceivable that one claim might succeed and the other might fail. Why should it not be left for the common issues judge to determine whether one or both claims have been made out, assuming that both claims are appropriate for certification? Similar observations were made by Wilson J. in Hunt v. Carey, above, in the context of conspiracy pleadings.

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