Law Times

Law Times • apriL 7, 2014 Page 9 www.lawtimesnews.com wo recent decisions have reignited the debate as to whether Quebec or Brit- ish Columbia is the na- tion's class action haven. Historically, Quebec has been the reputed haven for Canadian class actions because its certifica- tion test is liberal and its legisla- tion doesn't require any evidence (as opposed to allegations) to support certification. What had changed in recent years, however, was that Quebec courts were un- dertaking a more thorough anal- ysis of the procedural require- ments for certification. British Columbia rushed in to stake its claim to the haven title in 2013 when the Supreme Court certified Charlton v. Abbott Labo- ratories Ltd., a class action centred on the diet drug Meridia that had both the brand-name and gener- ic manufacturers as defendants. Earlier, the Quebec Court of Ap- peal had refused to certify a class action concerning the same drug, essentially holding that the plain- tiffs' allegations were too weak to support a claim. "Both cases were based on sub- stantially the same claims with very little, if any, material facts that were different and two or three years ago I would have said it was impossible that B.C. would cer- tify what Quebec would not," says James Sullivan of Blake Cassels & Graydon LLP's Vancouver office. Arguably, however, the Su- preme Court of Canada settled the debate in favour of Quebec in early 2014 when it released its decision in Vivendi Canada Inc. v. Dell'Aniello. e court held that the threshold Quebeckers must meet to proceed with class actions is lower than in the rest of Canada. e decision came in the case of a retired Vivendi worker who sought authorization for a class action aer a new employer uni- laterally amended the company's private health insurance plan. e Quebec Superior Court refused to authorize the class action, but the Quebec Court of Appeal over- turned that decision. In a principle known as com- monality, a condition of bring- ing class actions in Quebec is that at least one common ques- tion must exist that advances ev- ery class member's claim. e top court ruled that the requirement to advance the reso- lution of every class member's claims didn't mean that the answer to the common question must be identical for each individual or benefit everyone similarly. e court held that to meet "the commonality requirement of article 1003 (a) of the Que- bec Code of Civil Procedure, the applicant must show that an aspect of the case lends itself to a collective decision and that the parties will have resolved a not insignificant portion of the dispute. It is enough that the an- swer to the question does not give rise to conflicting interests among the members," wrote An- dré Durocher and Enrico Forlini in Fasken Martineau DuMoulin LLP's litigation and dispute reso- lution bulletin. "In short, at the authorization stage, the approach to be taken to the commonality requirement in Quebec civil pro- cedure is a flexible one." e top court was also careful to point out that the commonality requirement in the Quebec legis- lation was broader than the cor- responding provisions in Canada's other class action provinces. If Vivendi didn't clinch the hav- en designation for Quebec by con- firming the province's low certifi- cation thresholds, the B.C. Court of Appeal arguably put more dis- tance between the two jurisdic- tions when it decided Wakelam v. Wyeth Consumer Healthcare/ Wyeth Soins de Sante Inc. towards the end of January 2014. at was only about two weeks aer the top court released Vivendi. As it turned out, Wakelam was only the fourth case in which the B.C. Court of Appeal overturned a trial judge's certifi- cation of a class action. "Wakelam seems to up the bar a little in B.C., while Vi- vendi may well lower the bar in Quebec," says Randy Sutton of Norton Rose Fulbright Canada LLP's Toronto office. In Wakelam, the plaintiffs, who hadn't been injured, claimed a disgorgement of profits based on "unjust enrichment, waiver of tort, and constructive trust" founded on statutory causes of action in their province's Business Practices and Consumer Protection Act as well as the Competition Act. ey argued that in marketing the sub- ject medicine for use by children under the age of six, the defendant manufacturers had engaged in deceptive acts contrary to the B.C. legislation and made false or mis- leading representations contrary to the Competition Act. But the Court of Appeal, ap- plying its 2012 decision in Koubi v. Mazda Canada Inc., held that the B.C. law constituted an "exhaus- tive code regulating consumer transactions" and that nothing in the legislation indicated an inten- tion to add to the statutory rem- edies by permitting restitution. Similarly, the Competition Act, which limited recovery to "the loss or damage proved to have been suffered," was a comprehensive scheme for dealing with anticom- petitive and unfair trade practices. Margaret Waddell of Toron- to's Paliare Roland Rosenberg Rothstein LLP says Wakelam demonstrates the Court of Ap- peal's awareness of its gatekeeper function. "e court may well have thought that the case didn't have a lot of legs," she says. Ian Matthews of Toronto's Lax O'Sullivan Scott Lisus LLP believes Wakelam is a sign that the B.C. appeal court is willing to tackle complex issues of law at the certification stage. "It's always been the case that courts would consider at the cer- tification stage whether a cause of action existed," he says. "But the Wakelam court had no hesitation about plunging into complicated questions of constitutional para- mountcy and causation." For his part, Sullivan agrees that Vivendi lowered the bar in Quebec. But he adds that Wake- lam didn't change anything in British Columbia. "e court's reasons in Wake- lam are more fulsome than they were in Koubi, but the law hasn't changed," he says. "e fact re- mains that since 2007, the B.C. Court of Appeal has not over- turned a single certification on the basis of class action proce- dural issues, such as the existence of common issues or the man- ageability of the litigation." Indeed, there have been only four reversals overall, including Wakelam. e three other rever- sals occurred in a competition case where the court found that indirect purchasers weren't appro- priate defendants, an aboriginal law matter where the decision was that the group involved didn't have standing to sue, and a consumer protection lawsuit denied certi- fication because its facts didn't fit within the court's interpretation of the relevant legislation. Sullivan believes two factors account for the low standard for certification in British Columbia. "We have a bench that is fa- vourably disposed to class ac- tions as a means of access to jus- tice, that regards certification as a purely procedural matter, and that does not have enough expe- rience with class action trials to know how unwieldy and unman- ageable they can be," he says. "So part of the issue is the maturation process." e second factor, says Sulli- van, is the "entrepreneurial and aggressive" nature of the plain- tiffs' bar in British Columbia. Otherwise, there's no auto- matic right in that province to cross-examine plaintiffs on their affidavits and courts are reluctant to order the production of medi- cal records before certification. "B.C. has a more streamlined approach whereas the Quebec courts will look more closely into such things as the nature of the representative plaintiff and his or her suitability to represent the class," says Sutton. LT Is Quebec or B.C. Canada's class actions haven? Two recent certification decisions reignite long-standing debate FOCUS STACEY STEVENS | DAVID MACDONALD | MICHAEL BENNETT YOUR ADVANTAGE, in and out of the courtroom. Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. TF: 1.888.223.0448 T: 416.868.3100 W: www.thomsonrogers.com TRUST (YHU\WLPH\RXUHIHUDFOLHQWWRRXUßUP you're putting your reputation on the line. It's all about trust well placed. Untitled-2 1 14-04-02 9:22 AM BY JULIUS MELNITzER For Law Times T Ian Matthews believes Wakelam is a sign that the B.C. appeal court is willing to tackle complex issues of law at the certi- fication stage.

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