On June 20, 2014, the BC Supreme Court released a decision in
Player v. Janssen-Ortho Inc.,1 a proposed
product liability class action involving transdermal fentanyl
patches. The Court dismissed the action against two of the five
defendants in a summary trial prior to certification.
The case is significant in three ways:
Scope of inquiry: The Court held that
while in other provinces pre-certification class proceedings are
treated as "any old [individual] action", in BC, proposed
class actions are treated as "action[s] with ambition".
In this context, the Court concluded that evidence relating to the
proposed class—and not just the individual
plaintiff—could be considered on a pre-certification summary
trial application, despite that any judgment would bind only the
Summary trial despite factually complex
issues: In the past, courts in BC have held that the
summary trial procedure is not well-suited to factually complex
cases. Most pre-certification summary trials in BC have concerned
questions of contract or statutory interpretation. They involved
few, if any, disputed facts and a minimal evidentiary record.
Here, however, the Court held that the case was suitable for
summary determination and rendered judgment despite that it was
required to make findings of fact concerning pharmaceutical design
and drug safety and that the materials were voluminous—more
than 5,000 pages, including affidavits, exhibits, and expert
Legitimate policy reasons for pre-certification summary
determination: This decision appears to depart from a
recent trend of cases which have discouraged certain
pre-certification applications. In Player, the Court held that
there are legitimate policy reasons to allow for summary
determination in proposed class actions. The Court was bolstered by
this year's decision of the Supreme Court of Canada in Hryniak
v. Mauldin,2 which recognized that a "culture
shift" is required to move away from conventional trials in
favour of simplified pre-trial procedures like summary judgments
(and in BC, summary trials). The Court held that where the court
can find the necessary facts through the summary process (notably,
here, some examinations for discovery and cross examination of
experts had taken place), it promotes efficiency to issue judgment
at the pre-certification stage.
It remains to be seen whether this case will open the door to
more pre-certification summary determinations.
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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