(Prepared For Canadian Institute’s "Managing Complex Litigation Conference", April 24-25, 2006)
"Certification" transforms an ordinary action into a "class proceeding."1 When a judge pronounces the certification order, the court officially aggregates claims that would be uneconomic to litigate on their own, into a claim by hundreds or thousands or hundreds of thousands or even millions of people. Although the merits are not in issue, certification applications are major battles, consuming significant time, money and legal resources.2
certification dramatically affects the stakes for defendants. Class certification magnifies and strengthens the number of unmeritorious claims. . . . In addition to skewing trial outcomes, class certification creates insurmountable pressure on defendants to settle . . . The risk of facing an all-or-nothing verdict presents too high a risk, even when the probability of an advserse judgment is low. . . . These settlements have been referred to as judicial blackmail.
But while the notion that class actions are a form of "judicial blackmail" is colourful and provocative, is there any truth to it? Like many legal questions, the answer is, it depends. The implication is that defendants are forced, unfairly, to settle claims of dubious merit. But suppose the common issues that the court has certified (and may in fact have created, despite plaintiff’s counsel) are not really triable? Could that put the shoe on the other foot, and encourage the defendant to engage in hard bargaining?
The reality is that, having won the highly significant battle on certification, class counsel is then facing the trial of the certified common issues. This is no time to relax, even though most certified class actions, like most litigation generally, are settled without a trial. If, despite certification, there is no real plan for how the common issues can efficiently be tried, or if the trial of the common issues still leaves class members far from any meaningful recovery, class counsel has a problem, and it may be at least as big as the problem created for the defendant by the certification order. Hoping that the defendant will just give up and settle after certification is not a strategy.
It seems that some cases, despite strong encouragement from judges who appear enthusiastic about certification, probably cannot be litigated very effectively as class actions. In hindsight, the issues are simply too numerous and complex. This does not necessarily mean that class members in such actions are without access to justice – or access to fair compensation. However, if common issues cannot be tried efficiently, or class members are in fact left with many individual issues that still have to be resolved after the trial of the common issues, the dynamics of settlement negotiations can be shifted quite dramatically.
Nevertheless there are cases being taken to trial on the common issues. In particular, clear and focussed common issues, which put in issue specific conduct of the defendant, can be tried and tried efficiently.
In a certified class action, the "trial" is a trial of the common issue or issues certified by the court, not the whole case. On the certification application, the plaintiff is required to tender evidence of a "plan for the proceeding." Given this requirement, one might assume that, at an early stage, plaintiff’s counsel has carefully considered how to bring the whole case to a (successful) conclusion, as part of preparing the plan.4 The reality appears to be different.
Often the common issues that are certified look simple, perhaps too simple. Here are a few examples. Is a product reasonably fit for its purpose?5 Was the defendant negligent or in breach of fiduciary duty in failing to take reasonable measures in the operation or management of a school to protect students from misconduct of a sexual nature by employees, agents or other students at the school?6 Did the defendant owe a duty of care to persons using an alleged defective product, and did the defendant breach the standard of care in designing, manufacturing and distributing the product?7 Did the defendants breach a duty of care owed to class members by reason of the design, pre-market testing, regulatory compliance, manufacture, sale, marketing, distribution and recall of an allegedly defective product?8 Were the defendants negligent in exposing the Class members to the Hepatitis A virus and, if so, when and how? and Did the defendants breach the standard of conduct/care expected of them, and if so, when and how?9 Did the defendants (or any of them) owe to the class members a duty in contract or tort or both to evaluate a proposed investment by a standard of due diligence?10 Ironically, judges have actually discouraged more finely drafted common issues.11
However, actually getting ready to try such "simple" common issues has proved to be very challenging in practice, especially where the defendant puts up a fight. We have chosen three B.C. cases to illustrate this point.
A. Harrington v. Dow Corning Corp.
1. Certification is granted of a single common issue
Harrington v. Dow Corning Corp (1996), 22 B.C.L.R. (3d) 97 (S.C.), aff’d (2000), 82 B.C.L.R. (3d) 1 (C.A.)12 ("Harrington") was the first proposed class action filed in B.C. when with B.C. Class Proceedings Act was enacted in 1995, and was the first case to be certified. Harrington was industry-wide litigation, and the defendants named included Union Carbide Corp., 3M and Bristol-Myers Squibb Co. There were about 80 different models of implants, manufactured over several decades. When the certification application came before the court, Bendall v. McGhan Medical Corp. (1993), 14 O.R. (3d) 734 (Gen. Div.), an Ontario case against a single manufacturer of breast implants, had already been certified, and an individual claim13 had been tried and appealed through to the Supreme Court of Canada.
Plaintiff’s counsel in Harrington would have been content with certification of the three common issues that had been certified in Bendall.14 If those issues were to be certified, plaintiff’s counsel asked that a fourth issue also be certified: are breast implants fit for their intended purpose?15 Alternatively, he put forward a list of 18 proposed common issues, which (in the court’s opinion) attempted to define issues more narrowly.16
Mr. Justice Mackenzie rejected the Bendall issues. He thought that those issues would inevitably dissolve into a variety of more specific questions, and the answer to each of those questions might be significant to some members of the class but not to all.17 With one exception, Mr. Justice Mackenzie also rejected the 18 alternative questions. The exception, which appealed to Mr. Justice Mackenzie, was the question: are breast implants fit for their intended purpose?
In the result, Mr. Justice Mackenzie certified the question "Are silicone breast implants reasonably fit for their intended purpose," as a "threshold issue which is common to all intended members of the class," as well as to the several manufacturers of such implants.18 He continued (at para. 42; italics added):
Therefore the "fitness" issue was the only issue that plaintiff’s counsel would be taking to trial.19 Pleadings had to be drafted, and a discovery and trial plan created, so that this issue could be tried at the common issue trial.
2. Certification is upheld on Appeal
The defendants appealed the certification order. A 5-judge panel was convened. The defendants attacked Mr. Justice Mackenzie’s conclusion that the "fitness" question was appropriate for certification as the sole common issue. The Court of Appeal split 3-2, and dismissed the defendants’ appeal.
Huddart J.A. (for the majority) set out what, in her view, were the steps typically involved in every products liability case.20 The first is an inquiry into "general causation," i.e., whether the product is capable – in its ordinary use – of causing the harm alleged. The second step is assessment of the state of the manufacturer’s knowledge of the dangerousness of the product. The third step is an assessment of the reasonableness of any warning, and the final step is determination of individual causation and damages. In Madam Justice Huddart’s opinion, resolution of the issue of "fitness" would move the litigation forward. It met the requirements for a "common issue," and a class proceeding was preferable.
Finch J.A. (as he then was) wrote one of the dissenting judgments. His Lordship was concerned that the common issue certified focussed on the character of the product, when the focus should have been on the conduct of the defendants. Justice Finch also noted another, highly significant, problem with the approach Mr. Justice Mackenzie had taken. If, at the common issue trial, the implant with the "strongest claim" to fitness was found to be fit, one could not reasonably infer that all other implants manufactured at any other time were also fit.21 How then would the certified common issue actually be tried?22 This question remained unanswered.
Mr. Justice Esson, also dissenting, observed that "the preliminary task of identifying the model of implant with ‘the strongest claim to fitness’ might well be insoluble – certainly it would be difficult and complex." He continued, "The overall result might well be to turn the trial into a formless and almost interminable hearing of the kind which we have seen all too often in commissions of inquiry where the terms of reference are inadequately defined."23
3. However, in 2002, a proposed trial plan is rejected
Two years later – and 6 years after the certification order – Harrington was back before its case management judge.24 In the meantime, the scientific evidence relevant to the merits was becoming less favourable for the class.
The Plaintiff was applying for approval of a plan for common issue discovery and trial of the common issue. The remaining defendants were applying for further and better particulars. At this point, plaintiff’s counsel was forced to face the difficulties in actually trying the issue Mr. Justice Mackenzie had certified. Echoing observations made by the dissenting judges in the Court of Appeal, the case management judge described the problem (italics added):25
¶ 19 As a matter of logic, a negative answer to the certified question could only bind all manufacturers if it applied to the manufacturer of the model with the "strongest claim to fitness" and if all models had similar generic characteristics. . . .
¶ 20 Conversely, a positive answer to the certified question with regard to the model with the strongest claim to fitness would by definition exclude all other models and would amount to the answer "Model 'X' breast implants (the most fit) are reasonably fit" and would not determine whether any or all other models were fit.
. . . . . . . . . .
¶ 23 I find that the first step in proceeding with the trial on the certified issue must necessarily be to determine a means of identifying the model of breast implant with the strongest claim to fitness. Nothing in the present pleadings or in the plaintiff's proposed plan addresses that question. Indeed, in oral argument on the motions, counsel for the plaintiff maintained that Mackenzie J's comment was obiter dicta, effectively denying the need to address the issue of identifying a single model of silicone gel breast implant with the strongest claim to fitness.
¶ 24 In my view, that position was either expressly or implicitly rejected in all three judgments in the Court of Appeal. In any event, . . . I have concluded that an answer to the certified question could only advance this litigation "in practical terms" if the trial of the common issue proceeds as envisioned by Mackenzie J, as one concerning the fitness of the model of implant with the strongest claim to fitness.
The case management judge concluded that before any workable plan for discovery and trial could be approved, the plan must disclose some means of identifying the model of implant with the strongest claim to fitness, presumably through the discovery process.26 Neither the pleadings nor the plaintiff’s proposed discovery and trial plan addressed the next major issue that had to be determined – namely, how was the model of implant with the strongest claim to fitness to be identified – in order that the common issue certified could be tried in a way that would actually advance the litigation.
In granting certification at first instance, the court left plaintiff’s counsel with significant and challenging problems to overcome in actually taking the "common issue" part of the case to trial. In 2002, the case management judge focussed on the need for proper pleadings, including particulars, from the plaintiff.27 Without these, no discovery and trial plan could be approved.
Not surprisingly, just like conventional complex litigation, proper pleadings and particulars were required to shape and direct not only the issues for resolution at trial, but also for pre-trial discovery. Without them, the case could not move forward.
4. In 2005, a settlement is approved
In August 2005 – a decade after the action was filed – Harrington was finally settled with the defendants then remaining.28 There is a capped fund of $4.3 million (with the reversion to defendants).
$4.3 million is not an insignificant amount, and it might be unfair to characterize it as nuisance value. However, in all of the circumstances, this conclusion was probably not what the plaintiff and class members hoped for when the case was filed in 1995. Despite the initial optimism of the certifying judge, and the court’s enthusiasm for certification of the single common issue of product fitness, the industry-wide scope of the litigation, coupled with the numerous different models of products (estimated at 80) that were in fact at issue, made this case very, very difficult to move forward in any meaningful way.
Compare Harrington with Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219 (S.C.J.) (sometimes known as the "diet drugs" litigation), where there were eight common issues certified.29 The case involved essentially a single product that was alleged to cause life-threatening illness, and that, as of the certification application, had been withdrawn from the market. Although in Servier, there were multiple defendants, they were basically all in the same "family," unlike Harrington, where a number of different, and unrelated, companies were sued. After more than 55 days of discovery, and many (about 50) interlocutory applications, Servier was finally settled just three days before the start of a 9-month trial. Class Counsel were handsomely rewarded for their determination – in the face of a very vigorous defence that challenged the plaintiffs at every step – and their readiness to take the case to trial if necessary.30
B. Hoy v. Medtronic, Inc.
1. The B.C. Case is certified (although an action in Ontario is discontinued)
Hoy v. Medtronic, Inc. was another conventional products liability class action involving allegedly defective electronic pacemakers. It was certified by Kirkpatrick J. (now Kirkpatrick J.A.) in 2001, and the certification was upheld on appeal.31 Although the defendant had been successful in defeating certification in the U.S. eleven times, its arguments that individual issues overwhelmed any common issues were rejected by the Courts in B.C.32 The common issues certified included: did the defendant owe a duty of care to persons using the product, and did the defendant breach the standard of care (which was broken down into sub-issues).33
2. The defendant demands (and receives) comprehensive particulars of the common issues, and the common issues trial is restricted (by agreement)
While the appeal of the certification order was pending, the parties proceeded with getting ready for the trial of the common issues. It appears that, among other things, Medtronic developed a litigation strategy focussed on the pleadings, specifically on the generality of the certified common issues.
In the Fall, 2002, Medtronic applied for comprehensive particulars of the common issues.34 The parties came before the court again in April, 2003, when they were unable to agree on an appropriate revised case management plan, and a date for the common issues trial.35 Medtronic counsel was estimating that trial preparation would take approximately 3.7 years and that the trial of the defendant’s portion of the case would occupy about 58 weeks. Throughout 2003, the parties continued to wrestle over particulars and the nature and scope of the issues that would be before the court at the trial. Medtronic brought an application for decertification (which did not proceed).
Eventually, the parties were back before the court in April, 2004, on yet another application by Medtronic for further and better particulars, and to strike certain particulars.36 The application was dismissed, but it is evident that Medtronic required class counsel to devote a great deal of time to breaking down – particularizing – all of the many legal and factual issues bound up in the apparently simple certified common issues. The parties were then left to prepare for a 22-week trial of limited common issues set to begin in February, 2005 – more than 3 years after certification had been granted.
3. The case is settled
A settlement was approved on April 1, 2005. Medtronic agreed to pay a maximum of $1.5 million, including notice costs and Class Counsel fees (which included compensation for acting as claims administrator). It probably is fair to describe this as a settlement for nuisance value. This case lacked many of the features that made Harrington so problematic – for example, the industry-wide scope and scores of models of products – but still presented very high hurdles for class counsel to overcome to get the case to trial. Even though it had not been successful in defeating certification in Canada (as it had in the U.S.), the defendant’s vigorous defence on the merits exposed the common issues as virtually untriable. The settlement reflected this.
C. Collette v. Cartier Partners Securities Inc.
This case is currently before the B.C. Supreme Court, on its way to a trial of the common issues. Can it be tried? Time will tell, but the procedural background makes it worth watching as events unfold.
The case involves failed investments in mortgage units. The claims include allegations of breach of contract, negligence and negligent misrepresentation against investment advisors. The first certification application was heard in the Fall, 2000 and was dismissed.37 On the plaintiff’s appeal, the B.C. Court of Appeal (Mackenzie J.A.) determined that the matter should be referred back to the chambers judge, to consider whether the plaintiff’s contract claims could be certified.
The second certification application was heard in December, 2002. This application was also dismissed.38 However, the plaintiff’s appeal was allowed.39 On appeal, the plaintiff appears to have recast his case to some degree, although Mr. Justice Mackenzie (for the court) downplayed this. Mr. Justice Mackenzie characterized the error of the chambers judge as a "misapprehension of the appellant’s case as framed for certification." His Lordship then "defined" 3 common issues:40
1. Did the Defendants, or any of them, owe, to the class members with whom they dealt, a duty in contract, tort, or both, to evaluate the Multimetro Mortgages by a standard of due diligence and not to offer units in the mortgages for sale to class members if the investments did not meet the standard of due diligence?
2. If the answer to question 1 is "yes", did the Defendants, or any of them, breach that duty?
3. If the answers to questions 1 and 2 are "yes", did the breach of duty cause damage to the class members?
Late last year, with the case now proceeding to trial, the court ruled on an application by the plaintiff to "amend" the common issues certified by the Court of Appeal, and on the defendant’s application for decertification.41 Ironically, the grounds on which the plaintiff’s application was made were that (a) the common issues as stated by the Court of Appeal conflated the issues of duty of care and standard of care; and (b) the standard of care allegedly owed to the class by the defendant required clarification. The court dismissed the plaintiff’s application, saying that the plaintiff’s new proposed common issues "alter the substance of the common issues as stated by the Court of Appeal such that, if granted, they would no longer satisfy the requirements" for certification.42 The defendant’s application was also dismissed.
Although it now appears that the main issue (the "duty" issue) certified is too general, and determination of that issue in favour of the class will not move the litigation forward in any very meaningful way, the suggested "amendment" risked making the case unsuitable for certification at all. The result is that, whether he wants to or not, the plaintiff must now prepare for a trial of the common issues in the form certified by the Court of Appeal.
TRIAL READINESS AND TRIALS
In conventional litigation, the number of cases that actually proceed to trial is a small percentage of the cases filed, and settlements are common and expected. Class action litigation is no different. However, without a plan for how to get a certified class action through to the end, class counsel is liable to find herself lost at sea.
The fact that some certified class actions actually are being tried should provide encouragement for both class and defence counsel. It actually can be done. But merely because "common issues" are being tried – and not the whole case – does not mean that cases are stripped of the complexities of conventional litigation. As Servier, Kerr v. Danier Leather and Hislop (to name three) show, they are not.
A. Full-scale Trials
Some certified class actions have gone the distance.
One of the first cases to be certified after the Ontario Class Proceedings Act 1992 came into effect was Peppiatt v. Nicol, involving claims by investors in a golf club against the original developer, the Royal Bank of Canada and others.43 A key allegation was that the plaintiffs and class members (numbering about 170 individuals) had been induced to purchase units in the golf club based on representations made in an information package published by the developer (Nicol).
In 1996, the Royal Bank applied for an order decertifying the proceedings, or, alternatively, splitting up the original certified class into 17 different subclasses, including one described as "all permutations and combinations of the above as may be applicable." The court refused to decertify, but ordered that the original class be broken down into subclasses, giving the defendants access to a much broader range of claimants on discovery, so that the issue of claimants’ reliance on representations could be explored and tested.44 The case then proceeded to a conventional trial before Chadwick J., who delivered judgment in August, 1998 awarding the class members damages against the developer, and a restitutionary judgment against the Royal Bank.45 The judgment was affirmed on appeal.46
Of course there was a trial in Kerr v. Danier Inc. Mr. Justice Cumming granted certification of common issues that examined particular and specific conduct of the defendants.47 The issues included (a) "whether the financial projections relating to Danier's fourth quarter results for its 1998 fiscal year ending June 27, 1998 were known to the defendants to be inaccurate and overstated as of the closing of the offering on May 20, 1998 and constituted a misrepresentation of material facts"; and (b) "whether there was a duty on any one or more of the defendants to disclose that known adverse material financial information for the fourth quarter prior to the closing of the initial public offering."
Unlike the single issue certified in Harrington, for example, the issues certified in Danier were capable of providing the focus necessary for a trial, and were well-suited for a common issues trial. Their resolution moved the litigation forward in a significant and meaningful way. As is well-known, at trial the plaintiffs and class members enjoyed a major victory.48 However, equally well-known is that the judgment was reversed on appeal.49
The Federal Government has demonstrated that it will take cases to trial. Examples are Hislop v. Canada (Attorney General)50and Withler v. Canada (Attorney General).51
B. Summary Trials
The British Columbia Rules of Court have both a summary judgment rule, and a summary trial rule.52 A summary trial is a trial. One or more issues in the case are actually "tried," and regardless of which party made the summary trial application, judgment can be granted in the plaintiff’s favour or the case can be dismissed. Merely raising a triable issue will not be sufficient to defeat a summary trial application.
Summary trials have been used, with success, to determine common issues following certification.
Elms v. Laurentian Bank of Canada involved claims by unhappy investors against the law firm who had acted for the now-defunct company promoting the investments, and against the Bank who set up RRSPs for the investors in connection with the investment. Certification was granted, and the certification order was upheld on appeal.53 The common issues certified in the claims against the law firm included whether a duty of care and a fiduciary duty was owed by the law firm to the investors.
Following discoveries, the law firm brought an application to dismiss the claim on a summary trial. Plaintiffs’ counsel had conceded at the certification hearing and in the Court of Appeal that the law as it presently stands would not afford the plaintiffs a cause of action against the law firm; however, counsel hoped to make a case to extend the law, and both courts agreed that counsel should have the opportunity to make that argument. Thereafter, Plaintiffs’ counsel strongly resisted the defendant law firm’s efforts to have the case against it determined summarily on the merits.
Plaintiffs’ counsel was however unable to postpone the inevitable forever. Maczko J. (who certified the action, and was hearing the summary trial) considered that it would be unfair to make the law firm wait any longer for a resolution. The action was dismissed as against the law firm, and this ruling was recently upheld on appeal.54
In Gregg v. Freightliner Ltd., the court certified issues concerning alleged wrongful dismissal claims, including:55
1. Was the employment of each of the class members subject to a contract of employment of indefinite duration, terminable only upon notice and/or pay in lieu of notice if dismissed without cause?
2. Did the letter dated December 3, 2001 from Freightliner to each of the class members provide sufficient notice of the termination of the contracts of employment?
The following year, Freightliner applied for a summary trial on these issues, and in the result the court concluded valid notice of termination has been given. The judgment was upheld on appeal.56
In Nanaimo Immigrant Settlement Society v. British Columbia (2003), 22 B.C.L.R. (4th) 308 (S.C.), 2003 BCSC 1852, the class applied for a summary trial on the following common issues: are the "licence fees" imposed by the Province on charitable gaming lawful or ultra vires; are the "licence fees" in substance a tax, and if so are they a direct or an indirect tax; and do the amendments to the Lottery Act of 1998 and 1999 or the common law deprive either class, or some of the members of either class, from recovering "licence fees" paid to the Province. All three questions were answered in favour of the defendant, and the class action was dismissed. The dismissal was upheld on appeal.57
In Bywater v. Toronto Transit Commission (1998), 27 C.P.C. (4th) 172 (Ont. Gen. Div.), partial summary judgment was granted (based on the defendant’s admission of liability),58 along with certification.
Certification of an action as a class proceeding, while a highly significant event, is not the end of the litigation. The common issues (and then any individual issues) must still be determined on the merits. Class counsel, who must give long and careful thought to case selection before commencing the action, must also have a clear plan for getting the case from certification to the end. Class counsel cannot assume that a defendant will simply give up and settle after common issues have been certified. If there is no plan, or if the case looks untriable despite certification, or if success on the common issues still leaves class members very far away from meaningful recovery, there may be little incentive for a defendant to settle, and the defendant may be much more inclined to take a hard line in defence of the case and in any settlement negotiations.
The basic features of any piece of complex litigation exist in a class action. The pleadings (including the statement of defence, and the certified common issues) must properly, and adequately, define the legal and factual issues that the court will be asked to determine. These elements will in turn guide and shape the discovery process, and ultimately (and if necessary) the trial. With a plan, command of the issues and substantive law, and determination, certified class actions can be, and are being, tried. And class counsel who can demonstrate that the certified case actually can, and will if necessary, be tried, will fare much better in any settlement negotiations, even with a determined defendant.
1. The criteria for certification are that: the pleadings disclose a cause of action; there is an identifiable class of 2 or more persons; the claims of the class members raise common issues; a class proceeding would be the preferable procedure for the fair and efficient resolution of those common issues; and there is an appropriate representative plaintiff, who can fairly and adequately represent the class and who has produced plan for the proceeding on behalf of the class members. If these criteria are met, the court must certify the action as a class proceeding. See the B.C. Class Proceedings Act, R.S.B.C. 1996, c. 50, s. 4; Alberta Class Proceedings Act, S.C. 2003 Ch. C-16.5, s. 5; Saskatchewan Class Actions Act, S.S. 2001, c. 12.01, s. 6; Manitoba Class Proceedings Act, C.C.S.M. , c. C130, s. 4; Ontario Class Proceedings Act 1992, S.O. 1992, c. 6, s. 5; Newfoundland and Labrador Class Actions Act, S.N.L. 2001, c. C-18.1, s. 5. The plaintiff must support the application with an appropriate body of evidence: Hollick v. City of Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.), at paras. 22-25.
2. See, for example, Andersen v. St. Jude Medical Inc.  O.J. No. 3102 (S.C.J.), where costs of $404,659 and $213,841 for disbursements were awarded to the plaintiff for a contested certification application. The award was recently upheld on appeal: see  O.J. No. 508.
3. Castano v. American Tobacco Co. (1996), 84 F. 3d 734 (U.S. 5th Cir.), p. 746.
4. Many trial plans are still bare-bones and of the "one-size-fits all" variety, rather than customized to the particular case. See the article by Deborah Glendinning and Sarah Miller "Certification: Where has the Trial Plan gone?" (2004), 1 Class Action Review 95.
5. Harrington v. Dow Corning Corp., below.
6. This was the only liability issue certified in Rumley v. British Columbia (1999), 72 B.C.L.R. (3d) 1 (C.A.), aff’d (2001), 205 D.L.R. (4th) 39 (S.C.C.). The other two issues certified concerned punitive damages. Rumley later came close to being decertified, however: see Rumley v. British Columbia (2003), 12 B.C.L.R. (4th) 121 (S.C.).
7. These types of common issues have been certified in Hoy v. Medtronic, Inc. (below), Olsen v. Behr Process Corporation (2003), 17 B.C.L.R. (4th) 315 (S.C.), for example.
8. Andersen v. St. Jude Medical Inc. (2003), 67 O.R. (3d) 136 (S.C.J.), at para. 63. This was the first of seven common issues re-formulated and certified by Cullity J.
9. These issues were among the issues certified by Cullity J., without opposition, in Vezina v. Loblaw Companies Ltd. (2005) 17 C.P.C. (6th) 307 (Ont. S.C.J.).
10. See Collette v. Cartier Partners Securities Inc., below.
11. See, for example, Harrington v. Dow (below), Rumley (above) and Cloud v. Canada (Attorney General) (2004), 247 D.L.R. (4th) 667 (Ont. C.A.), reversing (2003), 65 O.R. (3d) 492 (S.C.J.). See paragraphs 28, 29 and 72 of the Court of Appeal’s judgment.
12. See also the judgment of Mackenzie J. (as he then was), dealing with the national class, at (1997), 29 B.C.L.R. (3d) 88 (S.C.).
13. Hollis v. Birch (1995), 14 B.C.L.R. 1 (S.C.C.).
14. These were: (a) What information did the Defendants have regarding adverse effects of silicone gel breast implants and when was that knowledge available to them? (b) are silicone gel breast implants likely to cause specific medical conditions? and (c) Were adequate notices of either of the foregoing given by the Defendants?
15. 22 B.C.L.R. (3d), paras. 28-30.
16. See 22 B.C.L.R. (3d), para. 3. The 18 proposed common issues are set out as an appendix to the reasons of Mr. Justice Mackenzie.
17. 22 B.C. L.R. (3d), para. 35.
18. 22 B.C.L.R. (3d), para. 41.
19. Mr. Justice Mackenzie found claims in conspiracy, fraud, misrepresentation and joint venture too vague, and found that claims in contract were not appropriate for class action determination: see 22 B.C.L.R. (3d), para. 50.
20. 82 B.C.L.R. (3d), paras. 42-48.
21. 82 B.C.L.R. (3d), para. 140.
22. 82 B.C.L.R. (3d), para. 148.
23. 82 B.C.L.R. (3d) para. 165.
24. Harrington v. Dow Corning Corp. (2002), 3 B.C.L.R. (4th) 51 (S.C.), 2002 BCSC 1018.
25. paras. 19-24.
26. para. 26.
27. para. 49.
28. The Settlement Agreement is dated for reference in December, 2003.
29. These are set out at para. 107 of the judgment of Cumming J.
30. See Wilson v. Servier Canada Inc. (2005), 252 D.L.R. (4th) 742 (Ont. S.C.J.), where Cumming J. describes some of the history of the litigation, and approves a settlement and class counsel fees. Counsel for the B.C. subclass in Servier was also class counsel in Harrington.
31. Hoy v. Medtronic, Inc. (2002), 94 B.C.L.R. (3d) 169 (S.C.), aff’d (2003), 14 B.C.L.R. (4th) 32 (C.A.).
32. One of the interesting features of the case was that in the middle of the certification hearing, defendant’s counsel applied – successfully – for an order to cross-examine 2 U.S. attorneys on their affidavits filed in support of the application. The defendant was arguing that there was no genuine access to justice issue, that the B.C. proceedings were entirely lawyer-driven, and that they were merely an attempt by the U.S. attorneys to try and recover in Canada some of their lost investment. See Hoy v. Medtronic, Inc.,  B.C.J. No. 2379, 2000 BCSC 1715. See also the judgment reported at 2001 BCSC 944, (2001) 91 B.C.L.R. (3d) 352 concerning the scope of cross-examination. In B.C., there is no cross-examination as of right on affidavits submitted on any applications.
33. Hoy v. Medtronic, Inc., 94 B.C.L.R. (3d), para. 46.
34. Hoy v. Medtronic, Inc. (2002), 21 C.P.C. (5th) 86 (B.C.S.C.), 2002 BCSC 1648. By agreement, the plaintiffs were given access to Medtronic deposition transcripts and hundreds of thousands of documents produced on discovery in the U.S., so it was very hard to make the argument they were unable to provide proper particulars. In the end, 297 paragraphs of particulars were delivered.
35. Hoy v. Medtronic, Inc. 2003 BCSC 666.
36. Hoy v. Medtronic, Inc., 2004 BCSC 440. D.M. Smith J. sets out the procedural history following certification, beginning at para. 11. The limited common issues that the parties had agreed would be tried are set out at para. 20.
37. Collette v. Great Pacific Management Co. (2001), 86 B.C.L.R. (3d) 92 (S.C.). Macaulay J. analyzed the issues on certification as if the case was limited to negligent misrepresentation claims, although contract claims were also pleaded.
38. Collette v. Great Pacific Management Co., 2003 BCSC 332.
39. Collette v. Great Pacific Management Co. (2004), 26 B.C.L.R. (4th) 252 (C.A.).
40. Collette (C.A. No. 2), paras. 37-38.
41 .Collette v. Cartier Partners Securities Inc., 2005 BCSC 1749.
42. Collette (motion to amend), para. 6. The new proposed common issues are at para. 51.
43. See Peppiatt v. Nicol (1993), 16 O.R. (3d) 133 (Gen.Div.).
44. Peppiatt v. Nicol (1996), 27 O.R. (3d) 462 (Gen. Div.).
45. Peppiatt v. Nicol,  O.J. No. 3370 (Gen. Div.). The issues before the court at the common issues trial are set out at para. 24.
46. Peppiatt v. Nicol,  O.J. No. 2584.
47. See Kerr v. Danier Leather Inc.,  O.J. No. 4000 (S.C.J.), at paras. 42 and 56.
48. Kerr v. Danier Leather Inc. (2004), 46 B.L.R. (3d) 167 (Ont. S.C.J.). The trial lasted more than 40 days spread over 7 months.
49. Kerr v. Danier Leather Inc. (2005), 11 B.L.R. (4th) 1 (Ont. C.A.).
50. Hislop v. Attorney General (Canada) (2003), 234 D.L.R. (4th) 465 (Ont. S.C.J.) (the common issues are set out at para. 127); varied (2004), 246 D.L.R. (4th) 644 (Ont. C.A.); leave to appeal granted  S.C.C.A. No. 26.
51. Withler v. Canada (Attorney General), 2006 BCSC 101. The case, where the class members were challenging the constitutionality of certain statutory benefit reduction provisions, was dismissed after a 3-week trial. The certified common issues are at para. 10.
52. They are Rule 18 and Rule 18A, respectively.
53. Elms v. Laurentian Bank of Canada (2000), 73 B.C.L.R. (3d) 366 (S.C.), aff’d (2001), 90 B.C.L.R. (3d) 195 (C.A.).
54. Elms v. Laurentian Bank of Canada (2004), 35 B.C.L.R. (4th) 373 (S.C.), aff’d 2006 BCCA 86.
55. Gregg v. Freightliner Ltd., 2003 BCSC 241.
56. Gregg v. Freightliner Ltd., 2004 BCSC 1574, aff’d (2005), 42 B.C.L.R. (4th) 225 (C.A.).
57. Nanaimo Immigrant Bingo Society v. British Columbia (2004), 30 B.C.L.R. (4th) 195 (C.A.).
58. See para. 35 of the Winkler J.’s judgment.
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