Canada: A Decision On The Merits: Alberta Court Provides Valuable Insight On Class Certification

In Warner v. Smith & Nephew Inc.(Warner), a recent decision of the Court of Queen's Bench of Alberta, Justice G.H. Poelman gave guidance on the class certification process and the extent to which the court will evaluate the merits of a class action at the class certification stage.


Class certification in Alberta is governed by the Class Proceedings Act (Act). In particular, section 5(1) of the Act states that the court must be satisfied as to each of the following requirements before a class action may be certified: 

  • The pleadings disclose a cause of action;
  • There is an identifiable class of two or more persons;
  • The claims of the prospective class members raise a common issue;
  • A class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues; and 
  • There is a person eligible to be appointed as a representative plaintiff.


In Warner, the plaintiff was implanted with a Birmingham Hip Resurfacing System manufactured by the defendant. The implantation surgery took place in 2005. Approximately three months after the procedure, a blood test revealed that the plaintiff had elevated metal ion levels. Subsequently, in 2012, the plaintiff elected to undergo revision surgery to remove the Birmingham system. She brought an action against the manufacturer for damages and applied for certification as a class proceeding, in which she would be the representative plaintiff.

The proposed class included all persons in Canada who have had the Birmingham system implanted. The plaintiff testified that she was informed by her counsel that counsel had been retained by nine plaintiffs who had experienced similar problems with the product. The plaintiff further testified that she had not spoken to any of these potential class members and had no knowledge of their identities, the nature of their complaints or why they retained counsel.


Justice Poelman dismissed the application, holding that that the plaintiff had failed to satisfy the court that the requirements under section 5(1) of the Act had been fulfilled.

Cause of Action

The defendant argued that the statement of claim failed to plead adequate material facts to support a cause of action. The defendant argued that the statement of claim offered few particulars regarding what the defendant should have done differently in order to comply with its duty of care. Justice Poelman rejected this contention, relying on the Court of Appeal of Alberta's decision in Hughes (Estate) v. Brady for the proposition that a mere lack of particulars does not signal the absence of a cause of action. Construed liberally, the overarching allegation in the statement of claim was that the Birmingham system should not have been on the market.

Identifiable Class

Justice Poelman found that the plaintiff had failed to establish an identifiable class. According to Justice Poelman, the plaintiff could not specifically identify any of the nine potential class members she learned of through her counsel nor could she provide any information regarding the nature of their complaints. Further, there was no evidence the other potential class members wished to commence legal proceedings. Justice Poelman noted that many potential plaintiffs retain counsel before deciding whether to commence an action. He went on to note the weakness of the plaintiff's evidence on this issue—the evidence, having been passed from the nine potential class members to counsel to the plaintiff, constituted double hearsay. The plaintiff also identified three other groups of potential class members, each of whom had participated in a study on hip resurfacing procedures. Justice Poelman rejected these potential class members for the same reasons outlined above.

Common Issue

Justice Poelman pointed out a number of insufficiencies in the common issues proposed by the plaintiff. The plaintiff's materials included issues not in dispute, such as whether a duty of care existed, and issues that are not common, such as the effects of the removal of metal shavings. Overall, the plaintiff provided little assistance in identifying which of the proposed issues should be heard. Justice Poelman suggested that such insufficiencies could be remedied on a subsequent appearance if the other requirements for certification were met. However, he declined to consider this possibility in light of the plaintiff's failure to satisfy other criteria.

Preferable Procedure

Justice Poelman's discussion on this point focused on whether issues common to the prospective class members predominated over issues affecting only individuals. He found that the evidence adduced by the plaintiff did not fulfil this requirement. There were a multitude of individualized factors at play, such as the degree to which harm lines up with warnings in the product literature and the sensitivity of specific patients to metal ions. Despite the plaintiff's broad allegation that the Birmingham system should not have been on the market, Justice Poelman stated that these individual variables remained important. For example, these individual variables may affect the amount of damages. Further, he found that the plaintiff's primary allegation had very little prospect of success. The Birmingham system was federally licensed and regulated, recommended by numerous qualified surgeons, and had revision surgery rates comparable to total hip replacements. If the plaintiffs failed on their main allegation, which Justice Poelman concluded to be likely, only the individual factors would be left. He noted that this limited analysis of the merits was also important to the "overall screening function" performed by the courts when determining whether to certify a class proceeding.

Eligible Representative Plaintiff

Section 5(1) of the Act states that a representative plaintiff must fairly and adequately represent the interests of the class, and must produce a plan setting out a workable method for advancing the proceeding and notifying class members. As noted by Justice Poelman, these criteria have been fleshed out by case law emphasizing knowledge and control. A representative plaintiff must not be a "passive figurehead" and must direct the lawyer in the proceeding. Further, they must have a basic understanding of class actions and of their role in the proceeding. Justice Poelman found that the plaintiff did not meet these requirements. She knew very little about the proposed class members and took no steps to acquire further information. Based on her lack of initiative, Justice Poelman found that it was "unlikely that she will vigorously and capably prosecute the interests of these people of whom she knows nothing." Further, her proposed plan was overly general and failed to address the particular challenges of the claim.


Warner exemplifies the increasing willingness of Alberta courts to consider the merits of a claim at the class certification stage. It is a general rule, codified in Section 6(2) of the Act, that a class certification order is not an evaluation of the merits. The Supreme Court of Canada (SCC) echoed this principle in the seminal 2001 case Hollick v. Toronto (City), stating that "the certification stage is decidedly not meant to be a test of the merits of the actions." However, the SCC went on to state that some basis in fact must be shown for each of the certification requirements. In Windsor v. Canadian Pacific Railway Limited, the Court of Appeal of Alberta held that a certain threshold of evidence is required for certification, as some actions are "purely speculative, have no air of reality, or are doomed to fail." Nevertheless, based on Justice Poelman's decision, defendants in class action proceedings in Alberta should be aware that courts may engage in a limited evaluation of the merits of the proposed class action, and should prepare accordingly.

The authors acknowledge the contribution of Liam Kelley (Student-at-Law).

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.