The recent decision of Ahlquist v. GlaxoSmithKline Consumer
Healthcare, 2015 SKQB 192, concerns the scope of
pre-certification disclosure in class actions.
Ahlquist involved denture adhesives manufactured by
GlaxoSmithKline Consumer Healthcare Inc.
("GSK") and Procter & Gamble Inc.
("P&G") (collectively, the
"Defendants") and known respectively as
"Poligrip" and "Fixodent" (collectively, the
Ms. Ahlquist, the representative plaintiff, had used the
Adhesives over a prolonged period of time and began experiencing
symptoms of a neurological disorder including "pins and
needles sensations, numbness in her arms and legs...and sharp
bursts of pain." Ms. Ahlquist alleged that zinc contained
within the Adhesives was the cause of her injuries. Additionally,
she asserted that the Defendants were negligent in marketing
Adhesives containing zinc because they "knew or ought to have
known, about the risks, injuries and losses to consumers and users
that could result from the use of these denture adhesive
In her application for class certification Ms. Ahlquist sought
to define the class as "all persons in Canada who have
purchased or used the Adhesives." In support of her
application, Ms. Ahlquist filed two affidavits: her own, and an
affidavit of Vancouver neurologist Dr. Robert Douglas Keyes (the
"Keyes Affidavit"). The Keyes Affidavit
focused on the general impact of zinc toxicity in the human body.
Although Dr. Keyes had never personally examined Ms. Ahlquist, the
Keyes Affidavit stated that her symptoms were consistent with zinc
In response, the Defendants challenged Ms. Ahlquist's
assertion that the Adhesives were the source of Ms. Ahlquist's
ailments. They argued that they could not respond to Ms.
Ahlquist's application for certification fairly and fully
without production of Ms. Ahlquist's medical, dental and
pharmacy records as well as any other documents that disclosed Ms.
Ahlquist's purchase of the Adhesives.
To determine the appropriate scope of pre-certification
disclosure, the Court conducted a wide-ranging analysis of the case
law respecting pre-certification disclosure which it then condensed
into a two-part test:
(a) In the
first step, a court assesses the probability that the eventual
certification inquiry will be assisted by the disclosure and
production of the information sought. This requires an assessment
as to whether the information assists in establishing, or not, one
of the certification requirements, namely that:
the pleadings disclose a cause of action;
there is an identifiable class;
claims of the class members raise common issues;
(iv) a class action
would be the preferable procedure for resolution of the common
(v) there is
an appropriate representative plaintiff.
If the answer to this first component
of the test is yes, then an order for disclosure and production
will generally follow.
(b) If the
answer is less conclusive, or even if the answer is no, the second
step is triggered. At this step, the Court may still grant the
order if it is seen as necessary to protect the fairness of the
proceedings and to afford the defendant an opportunity to meet the
plaintiff's case on certification. In considering the question
of fairness, and without limiting other factors, the Court could
properly consider the degree to which the information is unlikely
to assist the certification inquiry, the apparent propriety (or
not) of the defendant's motion for disclosure and
considerations of proportionality.2
In ordering Ms. Ahlquist to disclose and produce the information
sought by the Defendants, Justice Elson noted that the issue of
whether the Adhesives had actually caused the injuries complained
of would be a common issue amongst the class members. Therefore,
the question of whether the Adhesives had caused Ms. Ahlquist's
injuries was relevant to the Court's determination of whether
she was an appropriate representative plaintiff for the proposed
The two-part test set forth in Ahlquist represents a
useful clarification of the law respecting pre-certification
disclosure in class actions and is likely to be applied by other
courts in the future.
1. Ahlquist v. GlaxoSmithKline Consumer
Healthcare, 2015 SKQB 192, at para 9.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
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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