Campbell et al. v. Flexwatt Corp. et al., (1997) 98 B.C.A.C. 22 (CA)

• Judge: Cumming, Newbury and Huddart, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 07, 1997
• Jurisdiction: British Columbia
• Citations: (1997), 98 B.C.A.C. 22 (CA);1997 CanLII 4111 (BC CA);[1998] 6 WWR 275;44 BCLR (3d) 343;98 BCAC 22;[1997] BCJ No 2477 (QL);15 CPC (4th) 1

Campbell v. Flexwatt Corp. (1997), 98 B.C.A.C. 22 (CA);

    161 W.A.C. 22

MLB headnote and full text

Temp. Cite: [1997] B.C.A.C. TBEd. DE.012

Jim Campbell and Michelle Ann-Marie Isherwood (plaintiffs/appellants) v. Flexwatt Corporation, Wintertherm Corporation, Canadian Standards Association, Her Majesty the Queen in Right of the Province of British Columbia, Thermaflex Limited, Aztech International Ltd., Flexel International Ltd., Adair Industries Ltd., City of Vancouver, Municipality of West Vancouver, City of Victoria, City of North Vancouver, District of North Vancouver, City of Burnaby, Corporation of the City of New Westminster, District of Maple Ridge and City of Surrey (defendants/respondents) v. City of Abbotsford et al. (third parties/respondents)

(CA22124/V02849/V02850/V02852/V02853/V028

56/V02867/V02895)

Indexed As: Campbell et al. v. Flexwatt Corp. et al.

British Columbia Court of Appeal

Cumming, Newbury and Huddart, JJ.A.

November 7, 1997.

Summary:

A court order certified a products liability action as a class proceeding under the Class Proceedings Act and appointed the two plaintiffs as representative plaintiffs. The order also set out, inter alia, the primary and secondary common issues. The plaintiffs appealed respecting the first three common issues. The defendants and third parties appealed the order and alleged that the Chambers judge erred in certifying the proceedings as a class action.

The British Columbia Court of Appeal allowed the plaintiffs' appeal and dismissed the appeal of the defendants and third parties.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations - The British Columbia Court of Appeal stated that the decision whether to certify a class proceeding was not a matter of discretion, strictly speaking, because s. 4(1) of the Class Proceedings Act mandated certification if the criteria were met - The discretion resided in the assessment of the circumstances - See paragraph 25.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations - The British Columbia Court of Appeal stated that the Class Proceedings Act required that the claims of the class members raise common issues which, for reasons of fairness and efficiency, ought to be determined within one proceeding - Common issues could be issues of fact or law and did not have to be identical for every member of the class - Common issues did not have to be determinative of liability; they need only be issues of fact or law that moved the litigation forward - Where an individual issue predominated, that did not mean the action should not be certified - See paragraphs 51, 53, 61.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations - The British Columbia Court of Appeal held that although s. 4(2) of the Class Proceedings Act set out a variety of factors to be considered when determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, the court was still given a broad discretion when determining whether a class proceeding would be fair and efficient - The court noted that a class proceeding did not have to be the preferable procedure for resolving the whole controversy, but merely the preferable procedure for resolving the common issue - See paragraphs 64 to 65.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment of representative plaintiff - The British Columbia Court of Appeal held that there was no requirement that each representative plaintiff in a class proceeding must have a cause of action against each defendant - The legislation simply required that there be a cause of action - See paragraphs 39 to 46.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment of representative plaintiff - The British Columbia Court of Appeal held that a representative plaintiff should be someone who would fairly and ade­quately represent the interests of the class, someone who has produced a plan for the proceeding that sets out a workable method of advancing the proceedings on behalf of the class and of notifying class members of the proceeding, and someone who did not have, on the common issues, an interest that was in conflict with the interests of other class members - See paragraph 69.

Torts - Topic 4234

Suppliers of goods - Implied warranties - Implied warranty of fitness for purpose - The British Columbia Court of Appeal held that to determine whether a product was fit for its purpose, it was necessary to look to the purpose for which it was intended and the purpose to which it was put - See paragraphs 25 to 36.

Cases Noticed:

Ashington Piggeries v. Hill (Christopher) Ltd.; Hill (Christopher) v. Norsildmel, [1971] 1 All E.R. 847 (H.L.), consd. [para. 29].

Griffiths v. Conway (Peter) Ltd., [1939] 1 All E.R. 685, consd. [para. 30].

Grant v. Australian Knitting Mills, [1936] A.C. 85 (P.C.), consd. [para. 32].

Donoghue v. Stevenson, [1932] All E.R. Rep. 1 (H.L.), consd. [para. 34].

Harrington v. Dow Corning Corp. (1996), 22 B.C.L.R.(3d) 97 (S.C.), refd to. [para. 43].

Chase v. Crane Canada Inc. (1996), 26 B.C.L.R.(3d) 339 (S.C.), consd. [para. 56].

Peppiatt v. Nicol (1993), 16 O.R.(3d) 133 (Gen. Div.), consd. [para. 57].

Abdool v. Anaheim Management Ltd. (1995), 78 O.A.C. 377; 21 O.R.(3d) 453 (Div. Ct.), refd to. [para. 66].

Sutherland v. Canadian Red Cross Society (1994), 17 O.R.(3d) 645 (Gen. Div.), refd to. [para. 66].

Bittner et al. v. Louisiana-Pacific Corp. and Louisiana-Pacific Canada Ltd., [1997] B.C.T.C. Uned. E73 (S.C.), refd to. [para. 66].

Endean v. Canadian Red Cross Society (1997), 148 D.L.R.(4th) 158 (S.C.), refd to. [para. 75].

Statutes Noticed:

Class Proceedings Act, S.B.C. 1995, c. 21, sect. 4(1) [para. 40]; sect. 4(1)(c) [para. 60]; sect. 4(2) [para. 64]; sect. 6(1) [para. 41]; sect. 24 [para. 82].

Sale of Goods Act, R.S.B.C. 1979, c. 370, sect. 18 [para. 35].

Counsel:

W.M. Holburn, Q.C., and S.O. Stewart, for Canadian Standards Association;

D. Acheson, Q.C., P. Guy and K. Writley, for Jim Campbell and Michelle Ann-Marie Isherwood;

J.R. Singleton and J. Hand, for the District of West Vancouver and over 90 other third parties;

T.H. MacLachlan and T.M. Leadem, for Her Majesty the Queen in right of B.C.;

D.C. Creighton, for the City of Vancouver;

R. Hildebrand, for the City of Surrey;

M. Woodward, for the Corp. of Delta;

R.C. Macquisten, for the City of Victoria Capital Regional District and Cariboo Regional District;

W. Berardino, Q.C., and A. Borrell, for the City of Kelowna, Township of Langley and District of North Cowichan.

This appeal was heard in Vancouver, British Columbia, on October 9 and 10, 1997, before Cumming, Newbury and Hud­dart, JJ.A., of the British Columbia Court of Appeal.

Cumming, J.A., delivered the following judgment on November 7, 1997, for the court.