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
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
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
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.
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