On July 28, 2016, in Bartram v. GlaxoSmithKline Inc.,
2016 BCSC 1409, the BC Supreme Court dismissed the
defendants' application for an order striking out a jury notice
and requiring that an upcoming trial of the common issues be heard
by a judge alone.
The case involves allegations that newborn infants suffered
cardiovascular birth defects as a result of their mothers' use
of the anti-depressant drug Paxil during pregnancy. The Defendant,
GlasxoSmithKline Inc., marketed the drug in Canada.
A trial of the common issues is set for October 3, 2016 to last
40 days. There are 10 common issues to be determined at the
Commenting generally on jury trials in class actions, the judge
made two observations: first, that nothing in the BC Class
Proceedings Act precludes a trial by jury in a common issues
trial, although the nature of a class action may introduce
additional considerations; and second, that common issues are
appropriate for trial by jury does not preclude a contrary finding
in relation to subsequent trials of individual claims.
The defendants argued that the common issues trial would involve
voluminous and complex scientific evidence from a variety of
disciplines and was therefore too complex for a jury. The
plaintiffs will need to present expert evidence that Paxil causes
or increases the likelihood of at least some cardiovascular birth
defects and intended to rely on a combination and interplay of
medical, scientific, and regulatory evidence.
The application was argued before the date on which the parties
were to exchange expert reports that they would be relying on at
trial. The judge noted that, in the absence of that evidence, the
question of how complex a trial would be is inevitably somewhat
Ultimately, the judge held that while the subject matter of the
case was unique, "the process of hearing and analyzing expert
evidence will not necessarily be different from what juries do in a
variety of other cases involving sometimes complex personal
injuries." In fact, the judge held it may be even more
straightforward because the jury in the common issues trial would
not have to consider other possible causes of injury that may be
relevant to an individual plaintiff. The judge held that in the
absence of an opportunity to consider the expert evidence that
would actually be before the court, he was not persuaded that the
jury notice should be struck.
The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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