In B.C.'s first certification decision of
2014, and despite several very recent pro-certification rulings
from the Supreme Court of Canada, defendants obtained a
de-certification order. In light of B.C.'s
pro-certification bent (see my earlier blog on this issue
here ), this is significant.
The case, Wakelam v. Wyeth et al. (cited and reviewed
in more detail by my colleague, Brandon Kain,
here), is a claim against various manufacturers of
children's cough and cold medication for relief due to the
manufacturers' sale of the medicines prior to
a Health Canada order requiring such medicines not be marketed for
children under six years of age and requiring re-labelling to that
effect. The case was certified in 2011.
The Court of Appeal's decision includes two
findings of particular interest to class action
1) The Court engaged in a substantive legal
analysis of the pleadings element of the certification test, which
requires plaintiffs make out a "reasonable cause of
action", and held that the plaintiffs here failed to make out
their main claims. In reaching this conclusion:
a) The Court commented that "...scare
judicial resources may be squandered when
difficult questions of law are continually side-stepped in
the class action context" (para. 64); and
b) The Court made observations one would
previously have expected to see in the context of the
"preferability" requirement of certification, which
requires a court to assess whether a class proceeding is the
preferable mechanism to address the alleged wrong. In
particular, the Court observed that there is a "sophisticated
and scientifically-supported regulatory system" that
"exists for the express purpose of monitoring the marketing of
pharmaceuticals", such that the Court
questioned "whether anything meaningful is
likely to be achieved by the pursuit" of this case (para.
2) Alleged breaches of the Business
Practices and Consumer Protection Act and the Competition
Act have been fertile ground for B.C. class action plaintiffs
for some time. Plaintiffs have been making claims that marry
breaches of these statutes with claims for restitutionary or
similar relief that are particularly amenable to
certification. The Court held that these statutory schemes
are each a 'complete code' such that
marrying the alleged breaches of these statutes with claims for
restitutionary and similar relief as in this case was
inappropriate. The Court further held that causation was a required
element for plaintiffs to obtain damages resulting from the breach
of either statute.
Both findings are encouraging for class action defendants in
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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