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Canadian Class Actions Monitor

Category Archives: Product Liability

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BC Court Refuses to Strike Jury Notice in Common Issues Trial

Posted in Class Actions, Product Liability, Uncategorized

On July 28, 2016, in Bartram v. GlaxoSmithKline Inc., 2016 BCSC 1409, the BC Supreme Court dismissed the defendants’ application for an order striking out a jury notice and requiring that an upcoming trial of the common issues be heard by a judge alone.

The case involves allegations that newborn infants suffered cardiovascular birth defects as a result of their mothers’ use of the anti-depressant drug Paxil during pregnancy. The Defendant, GlasxoSmithKline Inc., marketed the drug in Canada.

A trial of the common issues is set for October 3, 2016 to last 40 days. There are 10 common issues to be determined at the trial.… Continue Reading

A culture shift? Pre-certification Summary Trial in Product Liability Case

Posted in Certification, Class Actions, Product Liability

On June 20, 2014, the BC Supreme Court released a decision in Player v. Janssen-Ortho Inc.,[1] a proposed product liability class action involving transdermal fentanyl patches. The Court dismissed the action against two of the five defendants in a summary trial prior to certification.

The case is significant in three ways:

Scope of inquiry:  The Court held that while in other provinces pre-certification class proceedings are treated as “any old [individual] action”, in BC, proposed class actions are treated as “action[s] with ambition”. In this context, the Court concluded that evidence relating to the proposed class—and not just the individual plaintiff—could be considered on a pre-certification summary trial application, despite that any judgment would bind only the plaintiff.… Continue Reading

Is B.C. Canada’s New Class Actions Haven?

Posted in Product Liability, Trends

For many years, Canadian class actions lawyers could agree that Quebec was clearly the Canadian class actions haven, the province most encouraging of class action plaintiffs and their cases.  Though a case can still be made for Quebec, British Columbia is now giving Quebec a run for its money. Consider the following:

 

B.C.’s Class Proceedings Act provides a no-cost regime at certification. In recent years, B.C.’s certification rate for cases with published reasons has approached 100%. For example, in two recent product liability cases involving the same product, certification was refused in Quebec but granted in B.C.  (MacMillan v. Abbott Laboratories, 2012 QCCA 1684, aff’d 2013 QCCA 906 and Charlton v.… Continue Reading

The Door is Open for Class-Wide Arbitration of Franchise Disputes – But For How Long?

Posted in Procedure, Product Liability

While it may be the case in Canada that consumer protection legislation has foreclosed the possibility of resolving disputes under form consumer contracts via arbitration,[1] it remains to be seen whether the policy rationale underlying these decisions will be similarly applied to franchise disputes.  The question remains whether the arbitration vehicle in Canada will be considered by the courts to be sufficient to deal with these types of class-wide claims, but at least in principle the option remains open.

In Ontario the Arthur Wishart Act (“AWA”) entitles franchisees to associate with one another.[2]  It has been held by the Ontario Court of Appeal that this right cannot be contracted out of in a franchise agreement.… Continue Reading