The BC Supreme Court's recent refusal to certify a class
action in Davis
v British Columbia Hydro and Power Authority re-affirms that
although the evidentiary threshold for certifying general causation
as a common issue is not high, it is also not non-existent.
previously discussed, in a 2013 decision, the Supreme Court of
Canada rejected the argument that courts must take a
"rigorous" approach to class certification and confirmed
that plaintiffs need only show a "credible" or
"plausible" methodology to try issues of loss or harm on
a class-wide basis in price-fixing class actions. Lower courts in
BC and Alberta have subsequently extended the requirement to show a
"plausible methodology" to causation issues in
product liability and
brokerage class actions. In particular, according to the BC
Court of Appeal, there is
no requirement for a "gold standard" study proving a
causal connection at the certification stage.
The Smart Meters Class Action
Davis v BC Hydro concerned the introduction of
so-called "smart meters" by BC Hydro. In 2011, BC Hydro
began replacing existing meters with new "smart meters"
that communicated wirelessly. The plaintiffs asserted that the
radiofrequency (RF) emissions from smart meters caused biological
harm and claimed that legislation making smart meters mandatory
infringed the Charter of Rights.
Although the allegation that RF emissions were harmful clearly
raised a complex factual issue about the biological effects of RF
emissions on humans, the plaintiffs apparently made a tactical
decision not to file expert evidence as to how the plaintiffs'
allegations could be proven. Instead, the plaintiffs attached
copies of certain material asserting the potential adverse health
effects of RF emissions and smart meters. In the plaintiffs'
submission, it was enough for the plaintiffs to show only the
existence of such material to establish a basis in fact for a
methodology to prove the proposed common issues on a class-wide
In response, the defendant filed two expert reports describing
the multitude of sources of RF emissions, including mobile phones,
baby monitors, radios and microwave ovens. The thrust of the
defendant's expert evidence was that a class member's
exposure to RF emissions from a smart meter would depend on a
variety of factors, including the distance from the smart meter,
the presence of other sources of RF emissions, and the existence of
walls or other barriers between the meter and the individual. The
defendant's expert concluded that there were millions of
exposure scenarios to be considered and a large variation in RF
The court found that the defendant's expert evidence was
unchallenged because the plaintiffs' evidence was not
admissible to show a methodology by which the biological effects of
smart meter RF emissions could be plausibly proved on a class-wide
basis. The plaintiffs therefore failed to meet their evidentiary
burden to show there were common issues. Indeed, the certification
motion judge described the failure to lead admissible evidence as a
"fundamental problem for the plaintiffs".
The BC courts have issued a series of decisions applying the
Supreme Court's "credible or plausible" methodology
requirement to cases involving allegedly harmful products. At this
stage the takeaway from these cases can be succinctly summarized as
follows: some evidence of a methodology showing the potential
harmfulness of products is required at certification, but it need
not rise to the level of a "gold standard" medical
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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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