The Divisional Court's recent decision in Dine v Biomet Inc, 2016 ONSC 4039
will be of particular interest to members of the class action bar
in Ontario, as it will have implications for evidence led on
The defendants in Dine v Biomet sought leave to appeal
Justice Belobaba's decision certifying a proposed multiple
model product liability class action. The case involved several
models of metal-on-metal hip implants that were allegedly
defectively manufactured and designed by the defendants.
In a decision released in June, leave to appeal was denied.
Justice Then's reasons focused largely on whether evidence of
commonality touching on the merits of the claim ought to be
considered at the certification stage of a proposed class
Positions of the Parties
The defendants argued that Justice Belobaba's refusal to
consider their evidence regarding the absence of commonality
departed "radically" from the decisions of other class
action judges. The defendants pointed to Justice Perell's
treatment of defence evidence in O'Brien v Bard Canada Inc, 2015 ONSC
2470 and in Vester v Boston Scientific, 2015 ONSC
7950, noting that "Justice Perell recognized that evidence
relevant to the merits may also be relevant to the certification
test and should be considered."
Granting leave to appeal may have also shed light on a practical
issue for the class action bar in Ontario. The defendants noted the
following in their submissions:
"The difference in approaches taken by Justices Belobaba
and Perell effectively means that the outcome of a certification
motion may depend entirely on which of the two judges is assigned
to the matter. On the one hand, Justice Perell compels disclosure
of plaintiff medical records with a low threshold and considers
defence evidence pertaining to different characteristics of devices
in assessing commonality; on the other hand, Justice Belobaba
refuses to grant disclosure of the plaintiffs medical records and
refuses to consider defense evidence on commonality."
Biomet also argued that Justice Belobaba failed to conduct a
rigorous preferability analysis, alleging that His Honour's
decision focused only on the existence of common issues and failed
to consider whether there was a need for individual inquiries.
Though Justice Belobaba's comments on preferability amounted to
little more than a paragraph of his decision, Justice Then declined
to grant leave to appeal on this basis, and stated that Justice
Belobaba had reached a reasoned decision as "an experienced
class action judge".
The Court found that the decision was not in conflict with those
of Justice Perell. In Biomet, the plaintiffs had succeeded
in establishing some basis in fact for the existence of the
proposed common issues, so Justice Belobaba was correct in
declining to resolve conflicts in the evidence at the certification
stage. The Court relied on the approach of the Supreme Court in
Microsoft, Sun-Rype, and AIC as support
for that principle.
In Bard and Vester, by contrast, the
plaintiffs failed to adduce sufficient evidence of commonality. As
a result, the evidence provided by the defence
supplemented, rather than contradicted the
evidence of the plaintiffs, and could be properly considered.
It remains to be seen how the terms supplementary and
contradictory will play out in future certification
decisions, but counsel on both sides of the aisle should take note
of this development. In the meantime, this decision confirms that
there is a significant onus on the plaintiff to put its best foot
forward to establish some basis in fact at the certification
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