The British Columbia Supreme Court recently denied certification of a proposed class
action regarding the labelling and marketing of vitaminwater®
products. The plaintiffs offered no realistic prospect of
establishing their theory of loss on a class-wide basis. The
decision represents an example of courts applying meaningful
scrutiny to proposed class actions.
In Clark v. Energy Brands Inc., the plaintiff
alleged that the labelling and marketing of vitaminwater®
products in British Columbia misled consumers into paying premium
prices. He applied for class certification, arguing that his
"premium price theory" could be proven on a class-wide
basis as a common issue. Justice Verhoeven disagreed and dismissed
Justice Verhoeven denied certification in part because the
plaintiff failed to present "some basis in fact" showing
a realistic prospect of proving loss on a class-wide basis. The
"premium price theory" was vague and not supported by any
economic or marketing evidence in the record. The plaintiff failed
to produce any expert evidence supporting his theory of class-wide
damages. He did present evidence from himself and another potential
class member, but none of that evidence offered a credible
methodology for showing that consumers paid premium prices for the
The plaintiff urged the court to certify the action on the basis
that the "premium price theory" might be established at
trial with evidence obtained through the discovery process.
However, Justice Verhoeven refused to defer to trial his
consideration of whether the plaintiff's "premium price
theory" raised common issues. He held that "where the
theory of damage and the pleadings to support it are both vague,
and the plaintiff has adduced no evidence whatsoever to support the
claims, it would not be appropriate to certify the [class] action
for damages [...] on the basis that some evidence might be revealed
on discovery that would in some manner support the claim."
Second Related Class Action Not To Be Certified
Clark was the second action not to be certified as a
class proceeding relating to the labelling and marketing of
vitaminwater® products in Canada. In Wilkinson v. Coca-Cola Ltd., the Québec
Superior Court refused to authorize a class action raising
substantially similar allegations as in Clark. However, it
denied certification for very different reasons. In particular, the
Court found that the plaintiff's allegations did not establish
a prima facie case and that the proposed representative
plaintiff was inadequate. For more on Wilkinson, see our
September 16, 2014 post.
Meaning Of "Meaningful Screening Device"
Last year the Supreme Court of Canada called the certification
test a "meaningful screening device." Justice
Verhoeven's ruling in Clark demonstrates exactly what
this means. Certification is the time to determine whether there is
a realistic prospect of addressing the substantial ingredients of the class
members' claims on a class-wide basis. The proposed
representative plaintiff must present sufficient facts to satisfy
the applications judge that the conditions for certification have
been met. Class actions should not be certified on the mere hope
that evidence might be obtained through the discovery process to
support the plaintiff's theory. Meaningful scrutiny requires
The machinery of class proceedings demands evidence to be set in
motion. The evidentiary standard is not onerous, but is more than
merely symbolic. As Justice Verhoeven recognized, this means that
certification issues such as commonality cannot be deferred to
trial. Absent evidence in the certification record showing a
realistic prospect that loss can be determined on a class-wide
basis, the certification test is not met. These cases are properly
screened out at certification.
For more on the evidentiary standard on certification, see our
blog post of
October 31, 2013.
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guide to the subject matter. Specialist advice should be sought
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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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