B.C. Court of Appeal De-Certifies: Two Findings to Watch

In B.C.’s first certification decision of 2014, and despite several very recent pro-certification rulings from the Supreme Court of Canada, defendants obtained a de-certification order.  In light of B.C.’s pro-certification bent (see my earlier blog on this issue HERE), this is significant.

The case, Wakelam v. Wyeth et al. (cited and reviewed in more detail by my colleague, Brandon Kain, HERE), is a claim against various manufacturers of children’s cough and cold medication for relief due to the manufacturers’ sale of the medicines prior to a Health Canada order requiring such medicines not be marketed for children under six years of age and requiring re-labelling to that effect.  The case was certified in 2011.

The Court of Appeal’s decision includes two findings of particular interest to class action defendants:

1)    The Court engaged in a substantive legal analysis of the pleadings element of the certification test, which requires plaintiffs make out a “reasonable cause of action”, and held that the plaintiffs here failed to make out their main claims.  In reaching this conclusion:

a)    The Court commented that “…scare judicial resources may be squandered when difficult questions of law are continually side-stepped in the class action context” (para. 64); and

b)    The Court made observations one would previously have expected to see in the context of the “preferability” requirement of certification, which requires a court to assess whether a class proceeding is the preferable mechanism to address the alleged wrong.  In particular, the Court observed that there is a “sophisticated and scientifically-supported regulatory system” that “exists for the express purpose of monitoring the marketing of pharmaceuticals”, such that the Court questioned “whether anything meaningful is likely to be achieved by the pursuit” of this case (para. 109).

2)    Alleged breaches of the Business Practices and Consumer Protection Act and the Competition Act have been fertile ground for B.C. class action plaintiffs for some time.  Plaintiffs have been making claims that marry breaches of these statutes with claims for restitutionary or similar relief that are particularly amenable to certification.  The Court held that these statutory schemes are each a ‘complete code’ such that marrying the alleged breaches of these statutes with claims for restitutionary and similar relief as in this case was inappropriate. The Court further held that causation was a required element for plaintiffs to obtain damages resulting from the breach of either statute.

Both findings are encouraging for class action defendants in B.C.

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