The Alberta Court of Appeal recently allowed an appeal in Warner v Smith & Nephew Inc., overturning
a lower court decision declining to certify a
class action in a product liability matter. Few national
class actions have been certified in Alberta and therefore the
reasoning of Alberta's highest court (affirming a low
certification standard) may be of interest to institutions
The appellant commenced an action against a manufacturer for
damages resulting from the implantation of the Birmingham Hip
Replacement System. Under the Alberta Class Proceedings Act ("CPA"),
the appellant sought certification of the action as a class action.
The lower court denied certification, holding on the strength of
competing evidence that "there was not an identifiable class
of 2 or more persons, that the claims did not raise a common issue,
that a class proceeding was not a preferable method for resolving
the common issue, and that the appellant was not a proper
The Court of Appeal allowed the appeal and certified the action,
a rare example of this appellate court disagreeing with the
findings of a case management judge on a certification motion. It
affirmed that a certification motion "does not involve a
consideration of the claim on its merits", but rather is a
procedural motion concerning the form of an action. The motion is
intended to show whether a class proceeding is the appropriate
procedure for the prosecution of the claim, and the standard is
merely whether the evidence establishes that there is "some
basis in fact" that a class proceeding is the preferable
procedure to resolve the common issues in the claim.
The court examined each of the statutory criteria through that
lens, a relatively low threshold, criticizing the certification
judge for weighing conflicting evidence on the relative merits of
the parties' positions.
The majority said:
As the Supreme Court of Canada has made clear, the question at
this stage is not whether the plaintiff's claim is likely to
succeed at trial, or even whether there is some basis in fact for
the claim itself, but rather whether there is some basis in fact
that establishes the procedural certification requirements, in this
case that a class action is a preferable procedure.
In his dissent, Justice Slatter would have allowed the appeal
and certification but would have limited the class proceeding to a
narrower set of potential class members and common issues. However,
he too noted the low threshold at the certification stage,
I think it important to emphasize that the Canadian approach at
the certification stage does not allow for an extensive assessment
of the complexities and challenges that a plaintiff may face in
establishing its case at trial...
The Canadian position is that the certification application is
still heavily focused on whether the procedure is appropriate. It
is not a place for a "robust" analysis of the merits, nor
the resolution of disputed factual issues, and any in-depth
weighing of the evidence is inappropriate. The test of the merits
on certification is a very low standard, but it must amount to more
than symbolic scrutiny. The sufficiency of the evidence may often
be a factor in determining, ultimately, whether a class proceeding
is the "preferable procedure".
This decision will be important in Alberta actions brought under
the CPA, and defendants will need to be prepared to focus on the
key elements of the statutory test (Identifiable class? Common
issues? Is a class proceeding the preferable procedure? Suitable
representative plaintiff?) rather than the ultimate merits of the
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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