Schroeder et al. v. DJO Canada Inc. et al., (2010) 356 Sask.R. 162 (QB)

JudgePopescul, J.
CourtCourt of Queen's Bench of Saskatchewan (Canada)
Case DateMarch 29, 2010
JurisdictionSaskatchewan
Citations(2010), 356 Sask.R. 162 (QB);2010 SKQB 125

Schroeder v. DJO Can. Inc. (2010), 356 Sask.R. 162 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. AP.048

Sean Schroeder, Allister Curtis Veinot, and Eleanore Smiroldo, as Litigation Guardian for Eden Bobyk, (plaintiffs) v. DJO Canada, Inc., DJO, LLC, McKinley Medical LLC, McKinley Medical Corporation and Curlin Medical Inc. (defendants)

(2008 Q.B.G. No. 247; 2010 SKQB 125)

Indexed As: Schroeder et al. v. DJO Canada Inc. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Popescul, J.

March 29, 2010.

Summary:

The defendants manufactured and distributed a pain pump known as the "DonJoy Pain Control Device" (a disposable device used for pain relief following surgery). The plaintiffs commenced a proposed class action, alleging that the pain pumps contributed to a serious adverse reaction known as chondrolysis. The plaintiffs alleged that the defendants were negligent in the design, manufacturing and distribution of the pain pump and, in particular, failed to warn about the serious health risk associated with the use of the product. The plaintiffs applied pursuant to the Class Actions Act to certify the proceeding as a class action and to appoint the three plaintiffs as the representative plaintiffs. The plaintiffs proposed that the class be defined as "Persons resident in Saskatchewan and elsewhere in Canada, who used the Defendants' pain pumps and who claim to have suffered injury as the result of such use". The plaintiffs also sought an order certifying the common issues. Additionally, the plaintiffs sought an order defining a subclass of Saskatchewan residents (who alleged a breach of the statutory duty under the Saskatchewan Consumer Protection Act) and certifying the common issues for that class.

The Saskatchewan Court of Queen's Bench ordered that the action be certified as a class action. The class covered by the certification order included "all persons resident in Saskatchewan and elsewhere in Canada who used the defendants' pain pump sold under the brand name 'DonJoy Pain Control Device' and who claim to have suffered injury as a result of such use". The subclass covered by the certification order included "all persons resident in Saskatchewan who used the defendants' pain pump sold under the name 'DonJoy Pain Control Device' and who claim to have suffered injury as a result of such use". The court set out the common issues to be determined for the general class and the subclass. The plaintiffs were appointed as the representative plaintiffs.

Consumer Law - Topic 8

General - Interpretation of legislation - The defendants argued that medical devices could not be considered "consumer products" under s. 64 of the Consumer Protection Act - They suggested that the court adopt the approach taken by American jurists - The Saskatchewan Court of Queen's Bench held that the American cases relied on by the defendants were not helpful - The court stated that "Firstly, all three cases are decided upon the unique circumstance that the products in question are covered by the [Federal Food, Drug and Cosmetic Act] and, by virtue of that fact, are not eligible to be considered a 'consumer product'. There is no equivalent circumstance in Saskatchewan. Secondly, the 'alternative' finding in Goldsmith is obiter dictum and, more importantly in my view, merely states a conclusion without providing any reasoning. Obviously, decisions from another country are not binding on this court; however, should an analogous case contain compelling reasoning, such a decision may be of persuasive value. After careful review of the 'alternative' finding in the Goldsmith decision, I am unable to take any guidance from it because it merely states a bald conclusion without analysis" - See paragraphs 42 to 47.

Consumer Law - Topic 1602

Sale of goods and services - General - Consumer product - What constitutes - The plaintiffs alleged that pain pumps (disposable devices used for pain relief following surgery) manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis - The plaintiffs applied to certify the proceeding as a class action - The plaintiffs pleaded, inter alia, that the defendants breached the Consumer Protection Act (CPA) - The defendants argued that the CPA had no application because pain pumps were not a "consumer product" - The Saskatchewan Court of Queen's Bench concluded that the pain pumps were capable of being considered a "consumer product" within the meaning of the legislation - See paragraphs 41 to 48.

Consumer Law - Topic 1604

Sale of goods and services - Retail sale of goods - What constitutes - The plaintiffs alleged that pain pumps (disposable devices used for pain relief following surgery) manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis - The plaintiffs applied to certify the proceeding as a class action - The plaintiffs pleaded, inter alia, that the defendants breached the Consumer Protection Act (CPA) - The defendants argued that the hospital that charged the patients for the pain pumps was not a "retail seller" within the meaning of the CPA - The Saskatchewan Court of Queen's Bench stated that "the plaintiffs have established that they purchased the pain pumps from the hospital, and therefore it is certainly conceivable that a court could conclude that, in these circumstances, a hospital is a retail seller. In any event, it is an open question and one best left for the trial judge as to whether it is necessary to establish, as a condition precedent, that a sale between a retail seller and a consumer occurred before the statutory warranties of manufacturers are triggered. The plaintiffs have alleged that they bought the pain pumps from the hospital and that the hospital had obtained the product either directly or indirectly from the defendants. This allegation, at the very least, advances a plausible cause of action that the defendants are manufacturers deemed to have provided statutory warranties" - See paragraphs 55 to 58.

Consumer Law - Topic 1604

Sale of goods and services - Retail sale of goods - What constitutes - The plaintiffs alleged that pain pumps (disposable devices used for pain relief following surgery) manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis - The plaintiffs applied to certify the proceeding as a class action - The plaintiffs pleaded, inter alia, that the defendants breached the Consumer Protection Act (CPA) - The defendants argued that the use of the pain pump could not constitute a "sale" within the meaning of the CPA because use of the pump was only incidental to the surgery itself - The defendants also submitted that there were compelling public policy reasons why medical professionals should not be held strictly liable under consumer protection legislation for products used in the context of the provision of medical services - The Saskatchewan Court of Queen's Bench stated that "it matters not whether the sale of the product was the primary purpose of the contract or merely incidental to the contract. In any event, even if the distinction was relevant, the determination of that issue would be best left for determination by the trial judge" - It was not necessary to decide the public policy argument, because the defendants were alleged to be the manufacturers/distributors of the medical product and not "medical professionals" - Further, barring a definitive decision from an appellate court, the issue of whether public policy should bar the successful prosecution of a claim of this nature should be determined at trial, rather than at the certification stage - The plaintiffs established that there was a plausible basis to assert that there was a "sale" of the pain pump to the plaintiff consumers - See paragraphs 59 to 66.

Consumer Law - Topic 1661

Sale of goods and services - Manufacturers' warranties - General - The plaintiffs alleged that pain pumps (disposable devices used for pain relief following surgery) manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis - The plaintiffs applied to certify the proceeding as a class action - The plaintiffs pleaded, inter alia, that the defendants breached the Consumer Protection Act (CPA) - The defendants argued that the plaintiffs did not plead that the hospital was a "retail seller" within the meaning of the CPA - The Saskatchewan Court of Queen's Bench held that the absence of an averment that the consumer product in question was sold by a retail seller was not necessarily fatal to the pleadings because the focus of the plaintiffs' claim was on the manufacturer not the retail seller - Section 50(2) of the CPA made the deemed warranties of a manufacturer the same as those of a retail seller - It would be open to the trial judge to find that the defendants owed the same statutory warranties as retail sellers because they fell within the definition of "manufacturer" in the CPA - See paragraphs 49 to 54.

Courts - Topic 103

Stare decisis - Authority of judicial decisions - English, American and foreign authorities - American decisions - [See Consumer Law - Topic 8 ].

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The plaintiffs alleged that pain pumps manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis - The plaintiffs applied to certify the proceeding as a class action - The proposed definition of the class was "a class of persons resident in Saskatchewan, and elsewhere in Canada, who used the Defendants' pain pumps and who claim to have suffered injuries as the result of such use" - The Saskatchewan Court of Queen's Bench held that there was an identifiable class - The court stated that "The plaintiffs' proposed definition of the class, for all intents and purposes, creates two classes. The first class includes persons, resident in Canada, who have used the defendants' pain pump and who claim to have suffered injuries as a result of such use. The second class, a subclass, would include persons resident in Saskatchewan, who used the defendants' pain pump and claim to have suffered injuries as a result of such use. This subclass would be entitled to the benefit of the additional causes of action that may be available to them by virtue of the [Consumer Protection Act]" - The proposed class and subclass were objectively definable by geographic location - The definition refined the class to those that had used the defendants' pain pump and those who claimed to have suffered injuries as a result of such use - There was a rational connection between the class (and subclass), the proposed common issues and the proposed causes of action - The class definitions were not overly broad or unduly restrictive - The court's one concern was that the descriptor, "those who used the defendants' pain pumps", might be somewhat imprecise - That part of the definition was amended to read, "who used the defendants' pain pumps sold under the brand name 'DonJoy Pain Control Device'" - See paragraphs 76 to 81.

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) - [See second Consumer Law - Topic 1604 ].

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 Saskatchewan Court of Queen's Bench stated that "To satisfy s. 6(1)(a) of the [Class Actions] Act, the plaintiffs must establish that they have a genuine or apparently authentic cause of action on the basis of the facts as pleaded and the law that applies. Although in several provinces the 'plain and obvious test' is used, in this province a slightly higher threshold requirement has been adopted. The 'plausible basis' test developed by our Court of Appeal can be concisely summarized as follows: Assuming the facts as pleaded are true, have the representative plaintiffs persuaded the court that there exists a plausible basis for supposing the defendants could be liable for the claims of the class?" - See paragraph 25.

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 plaintiffs alleged that pain pumps (disposable devices used for pain relief following surgery) manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis (debilitating loss of cartilage in the affected joint) - The plaintiffs applied to certify the proceeding as a class action - The Saskatchewan Court of Queen's Bench held that the plaintiffs' allegation that the defendants, as manufacturers and distributors of pain pumps, were negligent by, among other things, not warning them about the risk associated with injecting anaesthetic into the synovial cavities, asserted a genuine and authentic cause of action - The defendants' contention that it was not the pain pumps, but the way they were used that caused the alleged problem, did not support the proposition that the plaintiffs did not have an authentic cause of action - The plaintiffs' allegations suggested that the defendants knowingly, and/or negligently, held out that the pumps were suitable for the purpose of injecting anaesthetic into the body, including the synovial cavity - The issue of whether the pain pumps caused the chondrolysis or whether it was other factors, or combinations of factors, should not be determined at the certification stage but should occur after the trier of fact heard evidence at trial - See paragraphs 28 to 34.

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 plaintiffs alleged that pain pumps (disposable devices used for pain relief following surgery) manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis (debilitating loss of cartilage in the affected joint) - The plaintiffs applied to certify the proceeding as a class action - The first proposed common issue was whether the defendants' pain pump caused serious adverse effects and, if so, what were the nature and extent of those adverse effects - The Saskatchewan Court of Queen's Bench held that the issue was overly broad in that it alleged "serious adverse effects" - The plaintiffs' claim was focussed primarily on the alleged serious adverse consequence of chondrolysis - Anything beyond that consequence made the issue too individualistic and would remove it from the realm of a common issue - Further, the statement of claim focussed on situations where the pain pump was inserted directly into the synovial cavity - That was a specific and precise allegation and much more amenable to a common issue determination - The real issue disclosed by the pleadings and the material filed in support of, and in opposition to, the certification application was: "Does the DonJoy Pain Control Device cause chondrolysis when placed in the synovial cavity of a knee or shoulder following surgery" - While the first proposed common issue was too broad, when appropriately modified, it was a proper common issue, the determination of which would sufficiently advance the litigation - See paragraphs 92 to 96.

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 plaintiffs alleged that pain pumps (disposable devices used for pain relief following surgery) manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis - The plaintiffs applied to certify the proceeding as a class action - The Saskatchewan Court of Queen's Bench held that the second proposed common issue (whether the defendants, or any of them, owed a duty of care to class members) was an appropriate common issue - The court stated that "This is a substantial and necessary element to the resolution of each class member's claim. Resolution of this issue would significantly advance the action in a legally material way" - See paragraphs 97 to 99.

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 plaintiffs alleged that pain pumps (disposable devices used for pain relief following surgery) manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis - The plaintiffs applied to certify the proceeding as a class action - The third proposed common issue was whether the defendants, or any of them, breached a duty of care to class members and, if so, when - The defendants argued that the issue could not be properly classified as a common issue because the determination of the issue might not be the same for all class members - The defendants suggested that the issue of whether any of the defendants breached its duty of care to any of the class members could hinge on the date the defendants acquired certain knowledge of problems associated with the pain pumps - The Saskatchewan Court of Queen's Bench stated that "notwithstanding that there is a possibility that there could be a finding, with respect to the knowledge issue, that initially there was no breach of the duty of care but that, after the point in time where the defendants gained knowledge or ought to have gained knowledge, a time came when the defendants breached their duty of care to some class members, the issue is properly designated a common issue. In the event of a bifurcated finding, there would be a precise date that could be determined to be the date when the line was crossed from 'no breach of duty' to a 'breach of duty'" - A finding on the third proposed common issue would advance the litigation - See paragraphs 100 to 112.

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 plaintiffs alleged that pain pumps (disposable devices used for pain relief following surgery) manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis - The plaintiffs applied to certify the proceeding as a class action - The fourth proposed common issue was whether class members were entitled to punitive damages at common law - The defendants submitted that it was inappropriate to certify the punitive damages question as a common issue because to do so would involve making a determination on punitive damages in a vacuum - The defendants further submitted that the question of whether punitive damages were available and, if so, in what amount, depended on numerous individualized questions - The Saskatchewan Court of Queen's Bench stated that "the plaintiffs' claim asserts that the design, testing, manufacturing, marketing and sale of the pain pumps showed a marked disregard for public safety. The allegation is not specific to any individual plaintiffs in the class ... the appropriateness of punitive damages is conducive to resolution as a common issue. The alleged negligence is systemic and the punitive damages aspect would apply to the class of pain pump users as a group" - See paragraphs 113 to 118.

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 plaintiffs alleged that pain pumps (disposable devices used for pain relief following surgery) manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis - The plaintiffs applied to certify the proceeding as a class action - With respect to the common issues sought to be certified, the defendants focussed on the fact that each potential plaintiff's injury and cause of injury was specific and dependent on a host of individualized factors - The Saskatchewan Court of Queen's Bench stated that "This appears to be a common argument often raised by defendants in medical product litigation ... there are always individual issues in such cases. However, the presence of individual issues is not a bar to certification" - The numerous individual factors that could affect the issue of causation as it pertained to each individual plaintiff did not overwhelm or diminish the advantages to be achieved from a single trial of common issues - A determination of the common issues would resolve many of the most contentious issues relating to the defendants' liability - See paragraphs 124 to 128.

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 plaintiffs alleged that pain pumps (disposable devices used for pain relief following surgery) manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis - The plaintiffs applied to certify the proceeding as a class action - The defendants argued that a class action was not the preferable procedure because the common issues would be subsumed by individual issues, and individual trials would be necessary for each class member - The Saskatchewan Court of Queen's Bench held that a class action was the preferable procedure for the resolution of the common issues - The court stated that "I have considered all of the other options available to the class members, including individual actions and test cases. However, given all of the circumstances, including but not limited to the complexity of the issues involved and the significant costs associated with prosecuting such a claim, I am convinced that the class action is not only preferable, but perhaps the only viable option. Furthermore, the resolution of the common issues would be pivotal to the resolution of the litigation and, in the circumstances here, the class action proceeding is a fair, efficient, manageable and logical way to advance the litigation" - See paragraphs 134 to 149.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment or replacement of representative plaintiff - The plaintiffs alleged that pain pumps (disposable devices used for pain relief following surgery) manufactured and distributed by the defendants contributed to a serious adverse reaction known as chondrolysis - The plaintiffs applied to certify the proceeding as a class action - The defendants submitted that the three proposed representative plaintiffs would not fairly and adequately represent the interests of the class because they had stated that they were not prepared to sue the surgeon who conducted the surgery or the drug manufacturers that produced the anaesthetic - Essentially, the defendants complained that the proposed representative plaintiffs were not appropriate because they chose to focus the action on the defendants as opposed to other potential parties - The Saskatchewan Court of Queen's Bench rejected the argument - The plaintiffs considered their options and, with the assistance of legal counsel, chose to focus on the defendants - The plaintiffs would fairly and adequately represent the interests of the class - See paragraphs 150 to 157.

Cases Noticed:

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 11].

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. 21].

Hoffman et al. v. Monsanto Canada Inc. et al., [2004] 4 W.W.R. 632; 233 Sask.R. 112; 2003 SKQB 174, refd to. [para. 23].

Hoffman et al. v. Monsanto Canada Inc. et al. (2007), 293 Sask.R. 89; 397 W.A.C. 89; 283 D.L.R.(4th) 190; 2007 SKCA 47, leave to appeal refused (2007), 383 N.R. 399; 324 Sask.R. 318; 451 W.A.C. 318 (S.C.C.), refd to. [para. 26].

Hollis v. Dow Corning Corp. et al., [1995] 4 S.C.R. 634; 190 N.R. 241; 67 B.C.A.C. 1; 111 W.A.C. 1, refd to. [para. 30].

Prebushewski v. Dodge City Auto (1984) Ltd. et al., [2005] 1 S.C.R. 649; 333 N.R. 201; 262 Sask.R. 281; 347 W.AC. 281; 2005 SCC 28, refd to. [para. 41].

Goldsmith v. Mentor Corp. (1995), 913 F. Supp. 56 (N.H. Dist. Ct.), refd to. [para. 44].

Kemp v. Pfizer Inc. (1993), 835 F. Supp. 1015 (E.D. Mich.), refd to. [para. 45].

Kanter v. Warner-Lambert Co. (2002), 99 Cal. App.4th 780, refd to. [para. 45].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 59].

ter Neuzen v. Korn - see Neuzen v. Korn.

Unifund Assurance Co. v. Insurance Corp. of British Columbia, [2003] 2 S.C.R. 63; 306 N.R. 201; 176 O.A.C. 1; 2003 SCC 40, refd to. [para. 68].

Pearson et al. v. Boliden Ltd. et al. (2002), 175 B.C.A.C. 104; 289 W.A.C. 104; 222 D.L.R.(4th) 453; 2002 BCCA 624, refd to. [para. 68].

Sorotski v. CNH Global NV et al., [2008] 1 W.W.R. 386; 304 Sask.R. 83; 413 W.A.C. 83; 2007 SKCA 104, refd to. [para. 72].

Caputo et al. v. Imperial Tobacco Ltd. et al., [2004] O.T.C. 112; 236 D.L.R.(4th) 348 (Sup. Ct.), refd to. [para. 72].

Paramount Pictures (Canada) Inc. v. Dillon et al., [2006] O.T.C. 528; 29 C.P.C.(6th) 13 (Sup. Ct.), refd to. [para. 75].

Williams v. Mutual Life Assurance Co. of Canada et., [2000] O.T.C. 751; 51 O.R.(3d) 54 (Sup. Ct.), affd. (2001), 152 O.A.C. 344; 17 C.P.C.(5th) 103 (Div. Ct.), affd. (2003), 170 O.A.C. 165; 226 D.L.R.(4th) 112 (C.A.), additional reasons (2003), 226 D.L.R.(4th) 131 (C.A.), refd to. [para. 75].

Zicherman v. Equitable Life Insurance Co. of Canada - see Williams v. Mutual Life Assurance Co. of Canada.

Wilkins v. Rogers Communications Inc. et al., [2008] O.T.C. Uned. N56; 66 C.P.C.(6th) 251 (Sup. Ct.), refd to. [para. 75].

Wuttunee et al. v. Merck Frosst Canada Ltd. et al., [2009] 5 W.W.R. 228; 324 Sask.R. 210; 451 W.A.C. 210; 2009 SKCA 43, refd to. [para. 78].

Option Consommateurs v. RTO Enterprises Inc., [1999] Q.J. No. 2650 (S.C.), refd to. [para. 85].

Harrington v. Dow Corning Corp. et al., [1996] B.C.T.C. Uned. 551; [1996] 8 W.W.R. 485 (S.C.), affd. (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.), refd to. [para. 86].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 97].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 97].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 97].

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. 113].

Bondy et al. v. Toshiba of Canada Ltd. et al., [2007] O.T.C. Uned. 983; 39 C.P.C.(6th) 339 (Sup. Ct.), refd to. [para. 115].

Boulanger v. Johnson & Johnson Corp. et al., [2007] O.T.C. 76; 40 C.P.C.(6th) 170 (Sup. Ct.), refd to. [para. 115].

Cloud et al. v. Canada (Attorney General) et al. (2003), 65 O.R.(3d) 492 (Div. Ct.), revd. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), leave to appeal refused (2005), 344 N.R. 192; 207 O.A.C. 400 (S.C.C.), refd to. [para. 115].

Healey v. Lakeridge Health Corp. et al., [2006] O.T.C. 981; 38 C.P.C.(6th) 145 (Sup. Ct.), refd to. [para. 115].

Heward et al. v. Eli Lilly & Co. et al., [2007] O.T.C. 251; 39 C.P.C.(6th) 153 (Sup. Ct.), leave to appeal granted [2007] O.T.C. 1530; 45 C.P.C.(6th) 309 (Sup. Ct.), affd. (2008), 239 O.A.C. 273; 295 D.L.R.(4th) 175 (Div. Ct.), refd to. [para. 115].

Dalhuisen v. Maxim's Bakery Ltd., [2002] B.C.T.C. 528; 2002 BCSC 528, refd to. [para. 115].

Chace et al. v. Crane Canada Inc. (1997), 101 B.C.A.C. 32; 164 W.A.C. 32 (C.A.), affing. [1996] B.C.T.C. Uned. B20; 26 B.C.L.R.(3d) 339 (S.C.), refd to. [para. 115].

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, refd to. [para. 116].

Nanaimo Immigrant Settlement Society et al. v. British Columbia (2001), 149 B.C.A.C. 26; 244 W.A.C. 26; 2001 BCCA 75, refd to. [para. 131].

Baxter et al. v. Canada (Attorney General) et al., [2006] O.T.C. 1346; 83 O.R.(3d) 481 (Sup. Ct.), refd to. [para. 133].

Knight v. Imperial Tobacco Canada Ltd. et al. (2006), 225 B.C.A.C. 291; 371 W.A.C. 291; 267 D.L.R.(4th) 579; 2006 BCCA 235, refd to. [para. 133].

Lavier v. MyTravel Canada Holidays Inc. et al. (2009), 248 O.A.C. 378 (Div. Ct.), reving. [2008] O.T.C. Uned. D83; 59 C.P.C.(6th) 57 (Sup. Ct.), refd to. [para. 133].

Brimner et al. v. Via Rail Canada Inc. et al. (2000), 47 O.R.(3d) 793 (Div. Ct.), reving. (1999), 47 O.R.(3d) 798 (Sup. Ct.), refd to. [para. 133].

Schweyer v. Laidlaw Carriers Inc. et al., [2000] O.T.C. Uned. 73; 44 C.P.C.(4th) 236 (Sup. Ct.), refd to. [para. 133].

Wilson v. Servier Canada Inc. et al., [2000] O.T.C. 884; 50 O.R.(3d) 219 (Sup. Ct.), leave to appeal denied (2000), 143 O.A.C. 279; 52 O.R.(3d) 20 (Div. Ct.), leave to appeal refused (2001), 276 N.R. 197; 154 O.A.C. 198 (S.C.C.), refd to. [para. 133].

Bywater v. Toronto Transit Commission (1998), 83 O.T.C. 1; 27 C.P.C.(4th) 172 (Gen. Div.), refd to. [para. 133].

Mouhteros v. DeVry Canada Inc. (1998), 70 O.T.C. 138; 41 O.R.(3d) 63 (Gen. Div.), refd to. [para. 133].

Gregg v. Freightliner Ltd. et al., [2003] B.C.T.C. 241; 35 C.C.P.B. 31; 2003 BCSC 241, refd to. [para. 133].

Chadha v. Bayer Inc. et al. (1999), 107 O.T.C. 36; 45 O.R.(3d) 29 (Sup. Ct.), revd. (2001), 147 O.A.C. 223; 54 O.R.(3d) 520 (Div. Ct.), affd. (2003), 168 O.A.C. 143; 63 O.R.(3d) 22 (C.A.), leave to appeal refused (2003), 320 N.R. 399; 191 O.A.C. 397 (S.C.C.), refd to. [para. 133].

Price et al. v. Panasonic Canada Inc., [2002] O.T.C. 426; 22 C.P.C.(5th) 382 (Sup. Ct.), refd to. [para. 133].

Rosedale Motors Inc. v. Petro-Canada Inc. (1998), 87 O.T.C. 180; 42 O.R.(3d) 776 (Gen. Div.), revd. in part [2001] O.J. No. 5368 (Div. Ct.), refd to. [para. 133].

Gariepy et al. v. Shell Oil Co. et al., [2002] O.T.C. 459; 23 C.P.C.(5th) 360 (Sup. Ct.), affd. [2004] O.J. No. 5308 (Div. Ct.), refd to. [para. 135].

Aquino et al. v. First Choice Capital Fund Ltd. et al., [1999] 11 W.W.R. 249; 181 Sask.R. 73 (Q.B.), refd to. [para. 137].

First Choice Capital Fund Ltd. v. First Canadian Capital Corp. - see Aquino et al. v. First Choice Capital Fund Ltd. et al.

Meyer v. Allstate Insurance Co. of Canada (1980), 3 Man.R.(2d) 411; 115 D.L.R.(3d) 90 (C.A.), refd to. [para. 143].

Hoffman et al. v. Monsanto Canada Inc. et al. (2002), 227 Sask.R. 63; 287 W.A.C. 63; 220 D.L.R.(4th) 542; 2002 SKCA 120, refd to. [para. 151].

Campbell et al. v. Flexwatt Corp. et al. (1997), 98 B.C.A.C. 22; 161 W.A.C. 22; 44 B.C.L.R.(3d) 343 (C.A.), leave to appeal denied (1998), 228 N.R. 197; 120 B.C.A.C. 80; 196 W.A.C. 80 (S.C.C.), refd to. [para. 152].

Authors and Works Noticed:

Cochrane, Michael G., Class Actions - A Guide to the Class Proceedings Act, 1992 (1993), p. 27 [para. 133].

Fridman, Gerald Henry Louis, The Sale of Goods in Canada (2nd Ed. 1979), p. 25 [para. 61].

Counsel:

David A. Klein, Douglas Lennox and Robert J. Gibbings, Q.C., for the plaintiffs;

Gordon J. Kuski, Q.C. and Amanda Quayle, for the defendants, DJO Canada Inc. and DJO LLC;

Neil S. Rabinovitch and Peter J. Cavanagh, for the defendants, McKinley Medical LLC, McKinley Medical Corporation and Curlin Medical Inc.

This application was heard before Popescul, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on March 29, 2010.

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20 practice notes
  • Thorpe v. Honda Canada Inc., 2011 SKQB 72
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • March 11, 2011
    ...399; 324 Sask.R. 318; 451 W.A.C. 318 (S.C.C.), refd to. [para. 33]. Schroeder et al. v. DJO Canada Inc. et al., [2010] 10 W.W.R. 324; 356 Sask.R. 162; 2010 SKQB 125, refd to. [para. 33]. Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. et al., [1995] 1 S.C.R. 85; 176 N.R. 321; 100......
  • Class Arbitration in Canada: The Legal and Business Case
    • Canada
    • Irwin Books The Canadian Class Action Review No. 6-2, December 2010
    • December 1, 2010
    ...of section 5(1)(a), identifying the requirement as an “authentic” or “plausible” cause of action (see also Schroeder v. DJO Canada Inc., 2010 SKQB 125 at para. 27). Ontario has clearly declined to depart from the plain and obvious test. In LeFrancois v. Guidant, [2008] O.J. No. 1397 at para......
  • La Dissuasion : 10 Ans de Jurisprudence Canadienn e en Matière D’autorisation D’exerc er un Recours Collect If
    • Canada
    • Irwin Books The Canadian Class Action Review No. 6-2, December 2010
    • December 1, 2010
    ...of section 5(1)(a), identifying the requirement as an “authentic” or “plausible” cause of action (see also Schroeder v. DJO Canada Inc., 2010 SKQB 125 at para. 27). Ontario has clearly declined to depart from the plain and obvious test. In LeFrancois v. Guidant, [2008] O.J. No. 1397 at para......
  • Revitalizing Environmental Class Act Ions: Quebecois Lessons for en Glish Canada
    • Canada
    • Irwin Books The Canadian Class Action Review No. 6-2, December 2010
    • December 1, 2010
    ...of section 5(1)(a), identifying the requirement as an “authentic” or “plausible” cause of action (see also Schroeder v. DJO Canada Inc., 2010 SKQB 125 at para. 27). Ontario has clearly declined to depart from the plain and obvious test. In LeFrancois v. Guidant, [2008] O.J. No. 1397 at para......
  • Request a trial to view additional results
10 cases
  • Thorpe v. Honda Canada Inc., 2011 SKQB 72
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • March 11, 2011
    ...399; 324 Sask.R. 318; 451 W.A.C. 318 (S.C.C.), refd to. [para. 33]. Schroeder et al. v. DJO Canada Inc. et al., [2010] 10 W.W.R. 324; 356 Sask.R. 162; 2010 SKQB 125, refd to. [para. 33]. Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. et al., [1995] 1 S.C.R. 85; 176 N.R. 321; 100......
  • MacInnis v Bayer Inc.,
    • Canada
    • Court of Appeal (Saskatchewan)
    • March 20, 2023
    ...(Attorney General), 2009 SKQB 509, [2010] 6 WWR 81, leave to appeal to Sask CA refused, 2010 SKCA 55; Schroeder v DJO Canada, Inc., 2010 SKQB 125, [2010] 10 WWR 324, aff'd 2011 SKCA 106, [2012] 1 WWR 485 [ Schroeder]; Martin v Astrazeneca Pharmaceuticals Plc., 2012 ONSC 2744, 27 CPC (7......
  • MacInnis v Bayer Inc.,
    • Canada
    • Court of Appeal (Saskatchewan)
    • March 20, 2023
    ...(Attorney General), 2009 SKQB 509, [2010] 6 WWR 81, leave to appeal to Sask CA refused, 2010 SKCA 55; Schroeder v DJO Canada, Inc., 2010 SKQB 125, [2010] 10 WWR 324, aff’d 2011 SKCA 106, [2012] 1 WWR 485 [Schroeder]; Martin v Astrazeneca Pharmaceuticals Plc., 2012 ONSC 2744, 27 CPC (......
  • MacINNIS v. BAYER INC., 2020 SKQB 307
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • November 20, 2020
    ...2012 ONSC 2744 at paras 221, 224 and 227-228, 27 CPC (7th) 32, aff’d 2013 ONSC 1169 [AstraZeneca]; Schroeder v DJO Canada, Inc., 2010 SKQB 125 at paras 92-93, [2010] 10 WWR 324 [Schroeder], aff’d 2011 SKCA 106, [2012] 1 WWR 485; and Sweetland v GlaxoSmithKline Inc., 2016 NSSC ......
  • Request a trial to view additional results
8 books & journal articles
  • Class Arbitration in Canada: The Legal and Business Case
    • Canada
    • Irwin Books The Canadian Class Action Review No. 6-2, December 2010
    • December 1, 2010
    ...of section 5(1)(a), identifying the requirement as an “authentic” or “plausible” cause of action (see also Schroeder v. DJO Canada Inc., 2010 SKQB 125 at para. 27). Ontario has clearly declined to depart from the plain and obvious test. In LeFrancois v. Guidant, [2008] O.J. No. 1397 at para......
  • La Dissuasion : 10 Ans de Jurisprudence Canadienn e en Matière D’autorisation D’exerc er un Recours Collect If
    • Canada
    • Irwin Books The Canadian Class Action Review No. 6-2, December 2010
    • December 1, 2010
    ...of section 5(1)(a), identifying the requirement as an “authentic” or “plausible” cause of action (see also Schroeder v. DJO Canada Inc., 2010 SKQB 125 at para. 27). Ontario has clearly declined to depart from the plain and obvious test. In LeFrancois v. Guidant, [2008] O.J. No. 1397 at para......
  • Revitalizing Environmental Class Act Ions: Quebecois Lessons for en Glish Canada
    • Canada
    • Irwin Books The Canadian Class Action Review No. 6-2, December 2010
    • December 1, 2010
    ...of section 5(1)(a), identifying the requirement as an “authentic” or “plausible” cause of action (see also Schroeder v. DJO Canada Inc., 2010 SKQB 125 at para. 27). Ontario has clearly declined to depart from the plain and obvious test. In LeFrancois v. Guidant, [2008] O.J. No. 1397 at para......
  • The Space Between Rule 20 and 21: The Evidentiary Burden on Certification
    • Canada
    • Irwin Books The Canadian Class Action Review No. 6-2, December 2010
    • December 1, 2010
    ...of section 5(1)(a), identifying the requirement as an “authentic” or “plausible” cause of action (see also Schroeder v. DJO Canada Inc., 2010 SKQB 125 at para. 27). Ontario has clearly declined to depart from the plain and obvious test. In LeFrancois v. Guidant, [2008] O.J. No. 1397 at para......
  • Request a trial to view additional results

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