The British Columbia Court of Appeal recently clarified the
evidentiary threshold that plaintiffs must satisfy at the
certification stage in the context of product liability class
actions in Charlton v. Abbott Laboratories, Ltd.
This case applies recent jurisprudence addressing the certification
requirements, which was addressed in a recent blog post comparing the role of
evidence at certification in Canada and the United States.
The Court in Charlton confirmed that plaintiffs
alleging that a product causes adverse effects or injury must
adduce some evidence of a workable methodology to demonstrate that
the product in question was capable of causing adverse effects on a
class-wide basis. In so ruling, the Court affirmed that the
principles articulated by the Supreme Court of Canada in the three
consumer class action certification appeals known as the Indirect
Purchaser Trilogy (discussed in an Osler Update entitled "Canada's Supreme Court Reshapes Consumer Class
Actions and Clarifies the Test for Certification Across
Canada") apply in the product liability context. For more
details on the Court's reasons in Charlton, the expert
evidence filed in support of the application for certification and
the implications of the decision, please refer to our recent Osler Update.
The plaintiffs commenced a class action against Abbott
Laboratories, Ltd. and Apotex, Inc. on behalf of all individuals in
Canada who were prescribed a drug containing sibutramine, on the
basis that ingestion of sibutramine allegedly caused or contributed
to adverse cardiovascular health, including heart attacks, strokes,
increased blood pressure, increased heart rate, and irregular
heartbeat. The product monograph indicated that drugs containing
sibutramine should not be prescribed to patients with a history of
cardiovascular disease. The expert evidence filed in support of the
plaintiffs' application for certification disclosed some
evidence to support a causal relationship between drugs containing
sibutramine and cardiovascular disease in individuals with a
pre-existing history of cardiovascular disease, but no studies or
reports were cited regarding evidence of a causal relationship
between drugs containing sibutramine and individuals with no
pre-existing history of cardiovascular disease. Notably, some of
the members of the class reported suffering from cardiovascular
events like heart attacks or strokes after being prescribed
sibutramine, while others had not. Furthermore, it was unclear from
the evidence how many class members (if any) had a pre-existing
history of cardiovascular illness.
The B.C. Supreme Court certified the class. Abbott and Apotex
appealed the certification decision on the basis of the failure of
the plaintiffs to lead evidence of a methodology for establishing
general causation on a class-wide basis.
B.C.C.A. Overturns Certification Due to an Absence of Proof of
On review of the evidence presented by both sides, the Court
found that "while there is no dispute that those with
pre-existing cardiopulmonary disease are at a statistically
increased risk of adverse cardiac events, this is not a case where
the experts disagree on the extent of the risk, but rather, a case
where the experts are uncertain whether there is a risk to the
class as a whole and cannot describe a methodology for addressing
The Court concluded that the plaintiff had to failed to
demonstrate evidence of a workable methodology for demonstrating
In reaching this conclusion, the Court cited a recent Alberta
Court of Appeal decision, Andriuk v. Merrill Lynch, which
also applied the evidentiary threshold from the Indirect Purchaser
Trilogy in an application to certify a financial services class
action. The court in Andriuk held that the failure to
adduce evidence of a methodology to establish causation on a
class-wide basis was not fatal at the cause of action stage of the
certification analysis, but raised "insurmountable
obstacles" to certification of the common issues of loss and
All of the common issues initially certified by the trial judge
hinged on finding that the plaintiffs had met the evidentiary
threshold of "some basis in fact" of class-wide
causation. In the absence of such evidence, the common issues could
not be certified. The B.C. Court of Appeal overturned the findings
of the certification judge, and decertified the class.
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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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