A recent article, Procedure Trumps Substance: Alberta Court
of Appeal Grants Certification in Warner v Smith & Nephew
Inc, 2016 ABCA 223("Warner"), published on
McCarthy Tétrault's Canadian Class Actions Monitor blog
may be of interest to readers of the Canadian Appeals Monitor blog.
Kelli McAllister and Renee Reichelt explore the ongoing tension in
certification motions where courts are to provide a meaningful
screening device but refrain from assessing the merits of the
In Warner, the Alberta Court of Appeal disagreed on
whether to consider if a plaintiff can prove her claims at the
certification stage. Justice Slatter, in dissent, noted at
paragraph 112 that neither side could prove certain allegations
relating to long-term effects of a hip-resurfacing device –
neither science nor medicine had resolved the issue: "[i]f the
scientists and doctors have been not been able to resolve this
issue using the usual scientific methods (lab experiments, long
term blind studies, etc.) how is it realistic to think that a trial
judge is going to find the answer in a civil trial? A trial judge
has no laboratory." The majority was unmoved. The plaintiff
did not need to establish the strength of her claim or whether
expert evidence could prove it. Certification is a procedural
motion only. Whether leave to appeal to the Supreme Court of Canada
will be sought in Warner remains to be seen. However, in
Pro-Sys Consultants Ltd v Microsoft Corporation,2013 SCC 57 the Supreme Court of Canada
reaffirmed that certification is a meaningful screening device. How
a court can meaningfully screen propose class actions without some
consideration of the merits remains a divisive issue in class
actions and a fertile ground for further appellate
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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