The British Columbia Court of Appeal, in its recent decision in Wakelam v. Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc. 2014 BCCA 36, has signalled that courts in British Columbia should consider whether a putative class representative has stated a cause of action at the certification stage. 

In Wakelam, the Court found that the plaintiff could not recover restitutionary damages for breach of either the B.C. Business Practices and Consumer Protection Act, SBC 2004, c 2 (the "BPA") or the Competition Act, RSC 1985, c C-34 (the "Competition Act") where the private causes of action in the respective statutes clearly require that the violation of the act actually cause the plaintiff's damage. 

Background

In December 2008, Health Canada reversed its policy of permitting the sale of certain over-the-counter cough and cold medicines for use by children. The ministry required the manufacturers of such medicines to change their labels to state that the medicines should not be used by children under six years of age. 

The plaintiff commenced an action on behalf of all B.C. residents who had purchased children's cough medicine for use by children under the age of six that had been sold, advertised or promoted by the defendants. She alleged that in marketing the medicines for use in children under six years old, the defendants had engaged in "deceptive acts or practices" in violation of the BPA and the Competition Act. However, the plaintiff did not allege that she, or any other class members, had been harmed by the alleged deceptive acts or practices. In spite of the lack of actual damages, the plaintiff sought, among other relief, the disgorgement of any benefits received by the defendants as a result of their alleged violation of the two Acts.

The B.C. Supreme Court, on the application for certification under the Class Proceedings Act, RSBC 1996, c. 50, had granted certification of the plaintiff's action.

The Court of Appeal decertified the class, holding that there is no right to restitutionary relief for breaches of either the BPA or the Competition Act, and that the plaintiff had not proffered any evidence that she had incurred damages as a result of the defendants' alleged violation of the BPA or the Competition Act.

No Right to Restitutionary Damages

The plaintiff had sought to recover damages under both restitutionary principles and the private causes of action in the BPA and the Competition Act for the violation of the respective Acts.  The court found that there was no legislative intent to create restitutionary causes of action for breach of either the BPA or the Competition Act. Thus, the court dismissed the plaintiff's claim for restitutionary damages.

No Evidence of Direct Harm

Given the court's finding that both the BPA and the Competition Act required proof of damages as a result of the breach of a provision in the respective Acts, it is unsurprising that the court dismissed the plaintiff's claim for relief under each of the two Acts because she failed to plead any facts to support the required connection.

No Paramountcy Concern

Finally, the court's decision also touched upon paramountcy concerns raised by the defendants. On appeal, the defendants argued that the purposes of the Food and Drugs Act, RSC 1985, c F-27 (the "FDA"), would be frustrated if the BPA applied to the packaging, labelling and sale of the cough medicine at issue. The Court of Appeal rejected this argument. The court reasoned that the BPA does not frustrate the purposes of the FDA because the purpose of the FDA is to protect Canadians from unsafe or ineffective drugs, and the BPA merely provides additional protection. However, the court did not foreclose the possibility that a different set of facts could raise paramountcy concerns between the two statutes in the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.