On Thursday, September 4, 2014, the Supreme Court of Canada
dismissed the plaintiffs' motion for leave to appeal in
Wakelam v. Wyeth Consumer Healthcare/Wyeth Soin de Sante
Inc. The leave application arose from a 2014 British Columbia
Court of Appeal decision that clarified whether plaintiffs could
claim disgorgement remedies based on statutory causes of action
found in the Business Practices and Consumer Protection
Act ("BPCPA") and Competition
The Supreme Court's decision provides additional certainty
in a developing area of law about the limits of disgorgement
remedies. Non-injured plaintiffs will not be able to advance claims
under the BPCPA and Competition Act.
On December 18, 2008, Health Canada reversed a longstanding
policy that had permitted the sale of certain non-prescription
cough and cold medicines for use by children, requiring
manufacturers to re-label the medicines to instruct consumers that
they should not be used in children under six years of age. The
defendant cold medicine manufacturers complied with the re-
Ms. Wakelam commenced a proposed class proceeding on behalf of
all British Columbia residents who purchased cough medicine for use
by children under the age of six, between 1997 and 2008. She
alleged that in marketing the medicines for use in children under
six, the manufacturers had engaged in "deceptive acts or
practises" contrary to the BPCPA, and made false or
misleading representations to the public, contrary to the
Competition Act. She sought the disgorgement of the
profits received by the defendants as a result of their alleged
There was no evidence that Ms. Wakelam had provided the cough
medicine to her child, nor that the cough syrup (if consumed) was
ineffective or caused any injury or harm.
Disgorgement Is Not Available Under The BPCPA Or The
The British Columbia Court of Appeal in Wakelam
followed its 2012 decision in Koubi v. Mazda Canada,
holding that the BPCPA is a complete code that does not
provide for restitutionary claims. In Wakelam, the Court
of Appeal held that claims for waiver of tort, unjust enrichment
and constructive trust are not available under the statute.
Similarly, because section 36 of the Competition Act
limits recovery to "the loss or damage proved to have been
suffered" by the plaintiff, the Court of Appeal held that the
statute does not provide consumers with a "general right ...
to sue in tort or to seek restitutionary remedies" for alleged
false or misleading representations in contravention of the
Impact of The Supreme Court Decision
The Supreme Court of Canada decision provides additional
certainty that "deceptive practice" claims under either
the BPCPAor Competition Act must be founded on
some actual loss or damage suffered by the plaintiff. The decision
is of significance to manufacturers and distributors facing claims
for disgorgement of profits in the absence of actual loss by
The decision will impact future litigation across the country,
particularly in class proceedings founded on alleged breaches of
the Competition Act and consumer protection statutes where
similar relief is sought. Wakelam, along with
Koubi, provide a strong foundation for a full and critical
analysis of the viability of pleaded remedies at certification,
rather than at a common issues trial. BLG has issued an alert that contains more
information about Wakelam and its potential impact on
manufacturers and distributors in particular.
The full decisions of the British Columbia Court of Appeal in
Wakelam v. WyethConsumer Healthcare and
Koubi v. Mazda Canada. are available online, and are
indexed respectively as 2014 BCCA 36 and 2012 BCCA 310.
"Or you can trade it all for what's behind door number two..." Be honest – whenever you see this set up on a game show you secretly want the contestant to give up the sure thing and take a peek behind door number two.
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