Among the requirements that must be satisfied before a class
proceeding will be certified is that of commonality of issues.
Class proceedings statutes in the common law provinces invariably
provide that the claims of class members must, in order to sustain
a class action, raise common issues.1 However, little
evidence is needed to establish that the proposed class action
satisfies this requirement. A recent decision of Belobaba J. of the
Ontario Superior Court of Justice, Dine v Biomet, 2015 ONSC 7050, serves as a reminder to
defence counsel that resistance to certification on grounds of
insufficient commonality should primarily focus on the nature of
the issue as pleaded and not on detailed evidence that speaks to
the merits of the claim. Merits-based arguments based on extensive
evidence are properly left to subsequent proceedings, whether in a
summary judgment motion or at trial.
The plaintiff's claims in Dine v Biomet relate to alleged
injuries he suffered after receiving large-head metal-on-metal hips
implants, that were designed, manufactured, and distributed by the
defendants. According to the plaintiff's expert, large-head
metal-on-metal hips implants as a class are recognized to be a
problem by all surgeons. The defendants produced three models of
such implants that are at issue in the litigation. One of the
grounds on which the defendants resisted certification was
insufficient commonality of issues.
Belobaba J. first confirmed that in order to establish
sufficient commonality the plaintiff must adduce "some
evidence" showing both that the proposed common issue exists
and that it can be answered in common across the entire
class.2 With respect to the proposed common issues
relating to the defendants' duty of care, standard of care, and
whether the defendants breached of that standard of care, the
plaintiff adduced what would appear to be ample evidence in support
of its claims, including expert evidence,3 peer-reviewed
literature,4 and in product labelling and
"instructions for use" information.5 The
defendants attempted to challenge the sufficiency of commonality by
adducing "extensive" counter-evidence including detailed
counter-opinions from the defendants' experts.6
Though Belobaba J. opined that the counter-evidence was
"compelling",7 he rejected the defendants'
arguments on the well-established principle that "the
certification motion is not the place for an adjudication on the
merits."8 Belobaba J. noted that the defendants had
an upcoming summary judgment application, and he held the
defendants' arguments on these points must wait for the that
hearing.9 As a result, certification was granted on
Dine v Biomet illustrates the importance of exercising caution
when deciding what kinds of arguments to advance at which stage of
a class proceeding. Although the defendants in Dine v Biomet may
ultimately prevail at their summary judgment application, much time
and expense could presumably have been saved by refraining from
making detailed evidence-based arguments at the certification
1 See: British Columbia: Class Proceedings Act, RSBC 1996, c 50,
s 4(1)(c); Alberta: Class Proceedings Act, SA 2003, c C-16.5, s
5(1)(c); Saskatchewan: The Class Actions Act, SS 2001, c C-12.01, s
6(1)(c); Manitoba: Class Proceedings Act, CCSM c C130, s 4(c);
Ontario: Class Proceedings Act, 1992, SO 1992, c 6, s 5(1)(c); New
Brunswick: Class Proceedings Act, RSNB 2011, c 125, s 6(1)(c); Nova
Scotia: Class Proceedings Act, SNS 2007, c 28, 7(1)(c);
Newfoundland and Labrador: Class Actions Act, SNL 2001, c C-18.1, s
2 Dine v Biomet, 2015 ONSC 7050, at para 15.
3 Ibid at para 22.
5 Ibid at para 39.
6 Ibid at para 31.
8 Ibid at para 32. See: AIC v Fischer, 2013 SCC 69 at para 43,
 3 SCR 949.
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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