38 LEXPERT MAGAZINE
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SEPTEMBER 2016
have enough experience to come up with a
definitive approach where there are com-
peting evidentiary narratives."
However that may be, Bradley does
demonstrate the importance of presenting
defence evidence. "Defendants are going
to have a hard time defeating leave applica-
tions if they fail to put forward rebuttals to
the plaintiff 's case," D'Silva says.
is could represent an innovative liti-
gation strategy, given that such challenges
haven't always been seen as the most pru-
dent course of action. "When courts were
treating leave applications like rubber
stamps, there was always a real discussion
as to whether the defence should consent
to leave instead of subject-
ing clients to invasive cross-
examinations," says Andrea
Laing in the Toronto office
of Blake, Cassels & Graydon LLP. "But
now that the test has teeth, there's more
upside to fighting leave vigorously."
e leave application, Laing maintains,
has become a predominant strategic con-
sideration for defendants in secondary-
market cases. "It's fair to say that certifica-
tion pales by comparison," she says. "Once
leave is granted, it will be very difficult to
deny certification. But facilitating certifica-
tion in appropriate cases was really part of
the purpose of the legislation enacting the
leave requirement."
From plaintiffs' perspective, the hurdles
now built into the requirement for statuto-
ry action may also portend a change in their
approach to misrepresentation cases. Kirk
Baert of Koskie Minsky LLP in Toronto
believes that what may emerge is a trend to
filing common-law misrepresentation cases
without resort to the Class Proceedings Act
— despite the fact that common-law claims
would require proof of reliance on the mis-
representation. "A common-law misrepre-
sentation action that had a large number of
institutional plaintiffs affected by the mis-
representation could be financially viable,
and it could proceed without the various
statutory restrictions," he says.
Baert doesn't see proof of reliance as a
significant hurdle. "Reliance can be proven
at trial like any other issue," he says. "It
won't be that hard if a bunch of pension
funds come forward and say 'of course we
relied on the misrepresentation.'"
If Baert's prognostication is correct, the
euphoria the defence Bar may be enjoying
about the raised standard for leave may
be vulnerable to an old adage about being
careful what you wish for. But that's for
another day. "For the time being, there's
definitely a chill on securities class actions,"
Berman says.
HEIGHTENED
SCRUTINY
Plaintiffs are also facing challenges in prod-
uct-liability and consumer class actions,
two fields that their lawyers have tradition-
ally ploughed to fertility with a fair degree
of success. e challenges are perhaps most
significant with regard to product-liability
cases. "ese cases are getting a lot more
scrutiny, even though judges have in the
past referred to them as quintessential class
proceedings," says Michael Eizenga of Ben-
nett Jones LLP in Toronto.
One key issue is whether courts should
allow certification of class proceedings
by genre, where plaintiffs combine claims
against multiple products in a case without
showing a common design defect. Here,
the law remains unclear. "Judges are mov-
ing down different tracks," says Derek Ric-
ci of Davies Ward Phillips & Vineberg LLP
in Toronto.
Ricci cites a number of conflicting de-
cisions in Ontario arising from Superior
Court Justice Edward Belobaba's certifica-
tion of a class in Dine v. Biomet, in which
Ricci was co-counsel with colleague Kent
omson (leave to appeal denied), and
Justice Paul Perell's refusal to grant certi-
fication in O'Brien v. Bard Canada and in
Vester v. Boston Scientific. "In some cases,
judges are taking a hard look at the evi-
dence to see whether the products are simi-
lar enough," Ricci says. "In others, judges
are criticizing counsel for even leading evi-
dence on the issue."
Plaintiffs are also coming up against
the "complete code" principle in product-
liability cases and in consumer class ac-
tions generally. e principle states that
if Parliament intends a statutory cause of
action to be the sole remedy for a statutory
breach, common-law and equitable claims
are barred.
e British Columbia Court of Appeal
has been particularly supportive of the
complete code defence. In three separate
cases, the court held that the availability of
statutory remedies in the BC Business Prac-
tices and Consumer Protection Act (Koubi v.
Mazda Canada), the federal Competition
Act (Wakelam v. Wyeth Consumer Health-
care) and the federal Patent Act (Low v.
Pfizer Canada) barred claims for other
types of relief.
In Koubi, the BCCA decertified a waiver
of tort claim; in Wakelam, the court ex-
tended Koubi to restitutionary misleading
advertising claims; and in Low, the court
held that the patent regime, despite the fact
that it did not provide consumer remedies,
was a complete code that foreclosed civil
claims for unlawful interference with eco-
nomic relation and unjust enrichment.
e scope of the principle, however, is
yet to be determined, particularly as it ap-
PHOTO:
SHUTTERSTOCK
| CLASS ACTIONS |
"It's almost impossible to get drug or
medical-device cases certified in the
US, but that hasn't meant that there's
no access to justice. While these cases
may not normally be viable as one-offs
for law firms, they become so when
plaintiff's counsel and trial lawyers'
organizations coordinate their actions."
MICHAEL EIZENGA
>
BENNETT JONES LLP
