Chalmers v. AMO Canada Co. et al., (2010) 297 B.C.A.C. 186 (CA)

• Judge: Kirkpatrick, Tysoe and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 27, 2010
• Jurisdiction: British Columbia
• Citations: (2010), 297 B.C.A.C. 186 (CA);2010 BCCA 560

Chalmers v. AMO Can. Co. (2010), 297 B.C.A.C. 186 (CA);

    504 W.A.C. 186

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. DE.049

Trina Lorraine Chalmers, an infant, by her litigation guardian, Cherie Chalmers (respondent/plaintiff) v. AMO Canada Company and Advanced Medical Optics, Inc. (appellants/defendants)

(CA037232; 2010 BCCA 560)

Indexed As: Chalmers v. AMO Canada Co. et al.

British Columbia Court of Appeal

Kirkpatrick, Tysoe and Bennett, JJ.A.

December 8, 2010.

Summary:

The plaintiff sued the defendants, alleging that she contracted an eye infection from her use of the defendants' lens solution. She asserted that the defendants were negligent in the research, development, testing, manufacture, distribution and sale of the lens solution. She also claimed that the defendants' conduct in their solicitations, offers, advertisements, promotions, sales and supply of the lens solution were deceptive acts and practices in relation to the safety and efficacy of the solution, contrary to s. 4 of the Business Practices and Consumer Protection Act. In addition to general damages, special damages and compensation pursuant to the Act, the plaintiff sought punitive damages. The plaintiff applied to certify the action as a class action.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 689, allowed the application. The defendants appealed.

The British Columbia Court of Appeal dismissed the appeal except to the limited extent of clarifying the order with respect to issues pertaining to the claim for punitive damages.

Practice - Topic 208

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - For damages - The plaintiff sued the defendants, alleging that she contracted an eye infection from her use of the defendants' lens solution - She asserted that the defendants were negligent in the research, development, testing, manufacture, distribution and sale of the lens solution - She also claimed that the defendants' conduct in their solicitations, offers, advertisements, promotions, sales and supply of the lens solution were deceptive acts and practices in relation to the safety and efficacy of the solution, contrary to s. 4 of the Business Practices and Consumer Protection Act - In addition to general damages, special damages and compensation pursuant to the Act, the plaintiff sought punitive damages - The chambers judge certified the action as a class action - The defendants appealed - The British Columbia Court of Appeal dismissed the appeal except to the limited extent of clarifying the order with respect to issues pertaining to the claim for punitive damages - The court defined the common issues with respect to punitive damages as followed: "(c) If either or both of the Defendants breached a duty of care owed to class members, was either or both of the Defendants guilty of conduct that justifies punishment? (d) If the answer to common issue 7(c) is 'yes' and if the aggregate compensatory damages awarded to class members does not achieve the objectives of retribution, deterrence and denunciation in respect of such conduct, what amount of punitive damages is awarded against either or both of the Defendants?" - See paragraphs 23 to 36.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiff sued the defendants, alleging that she contracted an eye infection from her use of the defendants' lens solution - She asserted that the defendants were negligent in the research, development, testing, manufacture, distribution and sale of the lens solution - She also claimed that the defendants' conduct in their solicitations, offers, advertisements, promotions, sales and supply of the lens solution were deceptive acts and practices in relation to the safety and efficacy of the solution, contrary to s. 4 of the Business Practices and Consumer Protection Act - In addition to general damages, special damages and compensation pursuant to the Act, the plaintiff sought punitive damages - The chambers judge certified the action as a class action - The defendants appealed - They conceded that the statement of claim disclosed a cause of action in negligence, but it was necessary to consider whether it also disclosed a cause of action under the Act that could be pursued as a class proceeding - The chambers judge held there was sufficient particularization in the statement of claim with respect to the claim under the Act to allow the court to assess the suitability of the action as a class action and to inform the defendants of the nature of the claim - The British Columbia Court of Appeal dismissed the appeal - The amended statement of claim clearly gave particulars of the claim under the Act - The chambers judge did not err - See paragraphs 14 to 22.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiff sued the defendants, alleging that she contracted an eye infection from her use of the defendants' lens solution - She asserted that the defendants were negligent in the research, development, testing, manufacture, distribution and sale of the lens solution - She also claimed that the defendants' conduct in their solicitations, offers, advertisements, promotions, sales and supply of the lens solution were deceptive acts and practices in relation to the safety and efficacy of the solution, contrary to s. 4 of the Business Practices and Consumer Protection Act - In addition to general damages, special damages and compensation pursuant to the Act, the plaintiff sought punitive damages - The chambers judge certified the action as a class action - The defendants appealed, asserting that there were too many individual issues, there were a relatively small number of members in the class and a test case on the common issues relating to the negligence claim would be a preferable procedure - The British Columbia Court of Appeal dismissed the appeal - The conclusions reached by the chambers judge were not clearly wrong - Numerous medical products cases with many individual issues had been certified as class actions in Canada - See paragraphs 45 to 48.

Practice - Topic 209.22

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - Non-resident class members - Jurisdiction - The plaintiff sued the defendants, alleging that she contracted an eye infection from her use of the defendants' lens solution - She asserted that the defendants were negligent in the research, development, testing, manufacture, distribution and sale of the lens solution - She also claimed that the defendants' conduct in their solicitations, offers, advertisements, promotions, sales and supply of the lens solution were deceptive acts and practices in relation to the safety and efficacy of the solution, contrary to s. 4 of the Business Practices and Consumer Protection Act - In addition to general damages, special damages and compensation pursuant to the Act, the plaintiff sought punitive damages - The chambers judge certified the action as a class action - The defendants appealed, asserting that the chambers judge erred in applying Harrington v. Dow Corning Corp. (BCCA 2000) and holding that the British Columbia courts had territorial competence over the claims of non-residents against each of the defendants and that there was no basis to decline to exercise jurisdiction in favour of the courts of another province - The British Columbia Court of Appeal dismissed the appeal - As Harrington had not been overruled, expressly or impliedly, by any case law, it continued to be binding - The chambers judge did not err in relying on Harrington in his determination that the British Columbia court had territorial competence over the claims of residents of other provinces - See paragraphs 37 to 44.

Cases Noticed:

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 9].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 49 B.C.L.R.(2d) 273, refd to. [para. 14].

Rushak v. Henneken (1991), 4 B.C.A.C. 64; 9 W.A.C. 64; 84 D.L.R.(4th) 87; 59 B.C.L.R.(2d) 250 (C.A.), refd to. [para. 16].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 23].

Koubi v. Mazda Canada Inc. et al., [2001] B.C.T.C. Uned. 650; 2010 BCSC 650, refd to. [para. 25].

Robinson et al. v. Medtronic Inc. et al., [2009] O.T.C. Uned. P46; 80 C.P.C.(6th) 87 (Sup. Ct.), refd to. [para. 25].

L.R. v. British Columbia - see Rumley et al. v. British Columbia.

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 2001 SCC 69, affing. (1999), 131 B.C.A.C. 68; 214 W.A.C. 68; 180 D.L.R.(4th) 639; 1999 BCCA 689, refd to. [paras. 26, 29].

Chace et al. v. Crane Canada Inc. (1997), 101 B.C.A.C. 32; 164 W.A.C. 32; 44 B.C.L.R.(3d) 264; 14 C.P.C.(4th) 197 (C.A.), refd to. [para. 26].

Goodridge et al. v. Pfizer Canada Inc. et al., [2010] O.T.C. 1095; 85 C.P.C.(6th) 267; 2010 ONSC 1095, refd to. [para. 27].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2), [2002] 1 S.C.R. 678; 283 N.R. 233; 299 A.R. 201; 266 W.A.C. 201; 2002 SCC 19, refd to. [para. 30].

Fakhri v. Wild Oats Markets Canada Inc. - see Fakhri et al. v. Capers Community Markets.

Fakhri et al. v. Capers Community Markets (2004), 203 B.C.A.C. 227; 332 W.A.C. 227; 34 B.C.L.R.(4th) 201; 2004 BCCA 549, refd to. [para. 33].

Harrington v. Dow Corning Corp. et al. (2000), 144 B.C.A.C. 51; 236 W.A.C. 51; 193 D.L.R.(4th) 67; 2000 BCCA 605, leave to appeal refused (2001), 276 N.R. 200; 162 B.C.A.C. 320; 264 W.A.C. 320 (S.C.C.), folld. [para. 37].

MacKinnon v. National Money Mart Co. et al. (2009), 267 B.C.A.C. 276; 450 W.A.C. 276; 304 D.L.R.(4th) 331; 2009 BCCA 103, refd to. [para. 38].

Seidel v. Telus Communications Inc., [2009] 5 W.W.R. 466; 267 B.C.A.C. 266; 450 W.A.C. 266; 2009 BCCA 104, leave to appeal granted (2009), 402 N.R. 397; 288 B.C.A.C. 319; 488 W.A.C. 319 (S.C.C.), dist. [para. 38].

Ward v. Canada (Attorney General) et al. (2007), 220 Man.R.(2d) 224; 407 W.A.C. 224; 286 D.L.R.(4th) 684; 2007 MBCA 123, refd to. [para. 40].

MacKinnon v. Instaloans Financial Solution Centres (Kelowna) Ltd. - see MacKinnon v. National Money Mart Co. et al.

MacKinnon v. National Money Mart Co. et al. (2004), 203 B.C.A.C. 103; 332 W.A.C. 103; 50 B.L.R.(3d) 291; 2004 BCCA 473, dist. [para. 41].

Dell Computer Corp. v. Union des consommateurs et al., [2007] 2 S.C.R. 801; 366 N.R. 1; 2007 SCC 34, refd to. [para. 42].

Muroff v. Rogers Wireless Inc., [2007] 2 S.C.R. 921; 365 N.R. 177; 2007 SCC 35, refd to. [para. 42].

Hoy v. Medtronic Inc. et al. (2003), 183 B.C.A.C. 165; 301 W.A.C. 165; 14 B.C.L.R.(4th) 32; 2003 BCCA 316, refd to. [para. 46].

Counsel:

M.N. Ruby and M.J. Schalke, for the appellants;

D.A. Klein and J.Z. Murray, for the respondent;

J.G. Penner, for the Attorney General of British Columbia.

This appeal was heard on September 27, 2010, at Vancouver, British Columbia, by Kirkpatrick, Tysoe and Bennett, JJ.A., of the British Columbia Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by Tysoe, J.A., on December 8, 2010.