Canada: Procedure Trumps Substance: Alberta Court Of Appeal Grants Certification In Warner v Smith & Nephew Inc

In Warner v Smith & Nephew Inc ("Warner")1 the majority of the Alberta Court of Appeal held that meeting the procedural requirements for certification trumped concerns regarding the substance of the action.2 The Court disagreed on whether and to what extent evidence may be considered on a certification motion. The reasons for this are clear (although where the line ought to be drawn is not): the Supreme Court of Canada has directed courts to provide a meaningful screening device on certification by conducting more than a superficial analysis but not an assessment of merits or weighing of the evidence.3

Motions to Certify A Class Action

To commence a class proceeding, a plaintiff must make a motion for certification and to appoint the plaintiff as the representative of the class.4 The proposed representative plaintiff must lead evidence to establish "some basis in fact" for each of the certification requirements (other than the requirement that the pleadings disclose a cause of action).5

The evidentiary burden of "some basis in fact" continues to provide fertile ground for arguments on both sides of a proposed class action. The Supreme Court of Canada has established the outer boundaries for consideration of evidence on a certification motion:6

  1. A court must do more than superficially analyze the sufficiency of the evidence –analysis should not amount to "nothing more than symbolic scrutiny" and,
  2. A court must not determine the merits of the proceeding by assessing or weighing the evidence – the focus is on the form of the action rather than its viability or strength.

These outer boundaries create a tension in certification motions between weighing the evidence too little (or not at all) and weighing the evidence too much.

The Underlying Claim in Warner

In Warner, Ms. Warner sought to certify a class of all persons in Canada who had a particular hip resurfacing system implanted. The hip resurfacing system had two metal contact points, which led to chromium or cobalt ions being released into the blood. In Ms. Warner's case, years after being implanted with the hip resurfacing system, she was advised that the cobalt ion levels in her blood were considered toxic, and she underwent a further surgery to remove the hip resurfacing system and replace her hip. Ms. Warner later commenced a proposed class action claiming that the system was unsafe as a medical device, not fit for its intended purpose, and not of merchantable quality.7

On the certification motion, the judge took seriously the courts' role in providing a meaningful screening device and primarily declined to grant certification on the basis that the class proceeding was not a preferable procedure. He concluded, based on the evidence on the certification motion including that the long-term health effects of elevated chromium or cobalt ion levels were unknown, that there was little prospect the plaintiff would succeed in the allegation that the hip resurfacing system should not have been available on the market. In addition, there were other litigation procedures available to the plaintiff.8

The Court of Appeal's Majority and Dissenting Reasons in Warner

On appeal, the Court agreed on the procedural focus, test, and evidentiary burden on a certification motion. The Court held that the class ought to be certified (although Slatter JA disagreed that the subclass should be certified) and the certification judge erred when he gave too much weight to the prospective merits of the action.9

However, the Court of Appeal disagreed on whether to consider if a plaintiff can prove its claims at the certification stage. Justice Paperny, writing for the majority, emphasized that a certification of the claim does not involve consideration of its merits. It is a procedural motion only. Accordingly, the certification judge's consideration of whether medical evidence could establish the effects of elevated levels of cobalt or chromium ions was impermissible weighing of the evidence and an impermissible assessment of the merits of the claim.10 Justice Paperny was unmoved by the lack of expert evidence establishing toxicity of these ions: "the appellant does not have to establish the strength of her claim at this stage; that is a matter for the trial judge."11

In his dissent, Justice Slatter was troubled by the inability of either side to prove allegations relating to the long-term effects of chromium or cobalt ions in relation to a subclass. The evidence on the record, including from the plaintiff's medical expert, was that no one knew or had established, scientifically or otherwise, the long-term health effects of these ions.12 If scientists and doctors could not resolve this issue, Justice Slatter queried whether a trial judge could – any experts called to testify at trial could only answer that "no one really knows" and in the end, neither side would be able to meet the balance of probabilities and the case would be dismissed.13 Justice Slatter commented:14

To be clear, the certification motion is not the place to weigh the expert evidence, but that is not what is happening here. The expert evidence is uncontradicted: no one knows whether the presence of metal ions in the patient is of significant concern. The unsuitability of civil trials for resolving scientific mysteries is one reason that this class proceeding is "not the preferable procedure" for resolving the claim of the subclass who have metal ions in their blood following the [hip resurfacing] procedure.

Justice Slatter concluded that a class proceeding was not the preferable procedure for resolving the "metal ions" subclass claim.

Ongoing Ambiguity on Certification Motions

Warner exemplifies the ongoing ambiguity and tension on certification motions where courts are to provide a meaningful screening device but refrain from assessing the merits of the claim. As Justice Paperny recognized, this can be a fine line and each case must be assessed on its own merits.15 However, a meaningful screening device requires some consideration of the merits and not simply procedure.


1 Warner v Smith & Nephew Inc, 2016 ABCA 223 ("Warner").

2 Ibid at paras 6, 13-18, 28, 37-42, 44.

3 Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 at paras 101-104 ("Pro-Sys").

4 Class Proceedings Act, SA 2003, c C-16.5, s. 2(2); Hollick v Metropolitan Toronto (Municipality), 2001 SCC 68 at para 13 ("Hollick").

5 Hollick, ibid at para 16; Pro-Sys, supra note 3 at para 99.

6 Pro-Sys, ibid at paras 102-103.

7 Warner, supra note 1 at paras 1, 2, 20, 46-49, 52-53

8 Warner v Smith & Nephew Inc, 2015 ABQB 139 at paras 12, 23-25, 63-69, 73-75.

9 Warner, supra note 1 at paras 13-15, 21, 36-37, 89, 90.

10 Ibid at paras 10, 13-17, 36-38.

11 Ibid at at para 38.

12 Ibid at at para 111.

13 Ibid at at para 112

14 Ibid at at para 117 (emphasis added). Note that while both the majority and the dissent refer to metal or metallic ions throughout the judgment, this is an overly broad characterization as it appears only chromium or cobalt ions are at issue. Certain metal ions, such as iron, are essential for almost all living organisms and their effects have been extensively studied: see e.g., N. Abbaspour, R. Hurrell and R. Kelishadi, "Review on iron and its importance for human health" (2014) 18:2 J Res Med Sci 164.

15 Ibid at para 18.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions