Once an action has been certified as a class action, notice of
certification is required to be given to the class. There are
statutory requirements that govern the matters to be addressed in
such notices, but the courts have responsibility for approving
their form, content and distribution scheme, as well as who pays
Bartram et al. v. GlaxoSmithKline Inc. et
In a recent B.C. case, the representative plaintiffs had
obtained a certification order against two GlaxoSmithKline Inc.
entities in respect of an action alleging that their antidepressant
drug Paxil caused cardiovascular defects in children born to women
who took the drug during pregnancy, of which the defendants failed
to provide adequate and timely warning. In Bartram et
al., v. GlaxoSmithKline Inc. et al, 2015 BCSC 315, the court decided on the form
and timing of the required notice to class members, including
distribution of and payment for the notice.
The representative plaintiffs had sought approval of both a
short and long form notice. The short form notice, to which
the defendants objected, "shows a picture of a crying baby
under the word Paxil in large type. It refers to the fact
that a class action has been certified, describes the class and
class period and provides contact details for the reader to obtain
further information. It does not include much of the other
information required by s. 19(6), such as the manner and time for
members to opt in or opt out of the proceedings" and other
information (para. 5). The plaintiffs proposed that the short
form notice be sent to doctors' offices with a request that it
be posted in waiting rooms.
The certification judge held "the proposed short
form notice resembles an advertisement for class counsel's
firm. It may be appropriate for use in that manner,
but it lacks the balance and independence required of a
court-mandated document. I conclude that notice will
be only in the proposed long form" (para. 8).
The court went on to find that plaintiffs' counsel and the
defendants were to split the costs of notice
evenly, and that there was "no basis for
requiring the defendants to effectively advertise on their own
website that their product, which is still properly on the market,
is the subject of litigation" (para. 10). As
such, even the long form was not required to be posted on the
Notice of certification must be given as required by the
statute. Defendants should take some comfort that class
counsel may well have to contribute half the costs of the notice
plan, and at the court's confirmation that a "balanced and
cannot resemble an advertisement for class counsel's firm;
need not be posted on the defendant's own website.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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