Taylor v. Wright Medical Technology Canada Ltd. et al., 2015 NSCA 68

• Judge: Farrar, Saunders and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 29, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 68;(2015), 363 N.S.R.(2d) 120 (CA)

Taylor v. Wright Medical Tech. (2015), 363 N.S.R.(2d) 120 (CA);

    1143 A.P.R. 120

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.018

Wright Medical Technology Canada Ltd., Wright Medical Technology, Inc. and Wright Medical Group, Inc. (appellants) v. Ken Taylor (respondent)

(CA 429260; 2015 NSCA 68)

Indexed As: Taylor v. Wright Medical Technology Canada Ltd. et al.

Nova Scotia Court of Appeal

Farrar, Saunders and Bryson, JJ.A.

July 7, 2015.

Summary:

Taylor had his left hip replaced in June 2007. The surgeon used a Wright Profemur Hip Implant System (WPHIS). In September 2009, Taylor underwent revision surgery to his left hip as a result of the fracture of one component of the WPHIS. He brought an action against the defendants, alleging that they were negligent in the design and manufacture of the WPHIS. He moved to have the action certified as a class proceeding under the Class Proceedings Act.

The Nova Scotia Supreme Court, in a decision reported at (2014), 342 N.S.R.(2d) 103; 1083 A.P.R. 103, granted the motion. The defendants appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

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) - Taylor's hip was replaced in 2007 using a hip transplant device that was designed and manufactured by the defendants - In 2009, Taylor underwent revision surgery because the device failed - He brought a negligence action against the defendants - A motion judge granted Taylor's motion to have the action certified as a class proceeding - Common issues included whether the device was defective, whether any of the defendants breached a duty of care to class members, whether the defendants' conduct warranted an award for punitive damages, and if so, to whom they should be paid - Although success on the common issues would not resolve the plaintffs' claims and further and separate hearings would be necessary to quantify personal injury damages, there was some basis for finding that a class proceeding was the preferable procedure - Determination of the common issues would be a significant component of each class member's claim and would require extensive and technical expert evidence - It would not be an efficient use of resources to have these issues litigated in individual proceedings - The Nova Scotia Court of Appeal dismissed the defendants' appeal - The motion judge did not err in principle in finding that Taylor's proposed issues had the requisite degree of commonality, or that a class action would be the preferable procedure - Nor was there any palpable and overriding error in his determination of the facts or in his weighing and balancing of the various factors that arose on the evidence before him.

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Evidence and proof - A motion judge granted the plaintiff's motion to have his action against the defendants certified as a class proceeding - On appeal, the defendants suggested that recent academic commentary had altered or tempered the "some basis in fact" threshold that had to be met to satisfy the statutory criteria for certification, and that the rebuttal evidence they tendered served to trump and nullify the plaintiff's evidence - The defendants submitted that there would be no point in engaging experts and presenting rebuttal evidence if the evidentiary bar facing the plaintiff was so low - The Nova Scotia Court of Appeal rejected this submission - The standard of proof in certification proceedings had not changed - Rebuttal evidence purporting to challenge or contradict the plaintiff's evidence did not change the test - The point of rebuttal evidence was to persuade the motion judge that the plaintiff had failed to show some basis in fact for each of the statutory certification criteria - See paragraphs 39 to 46.

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Evidence and proof - The Nova Scotia Court of Appeal stated that "Judges faced with certification applications must be very careful in their assessment of the evidence called by either the proposed plaintiff or the proposed defendant. Obviously the factual assertions presented by each side must be fairly considered in order to decide whether the plaintiff has met the burden of showing some basis in fact for each of the statutory criteria under the [Class Proceedings] Act. That evaluation by the judge needs to be more than a mere perfunctory exercise. It must rise above a superficial analysis amounting to little more than symbolic scrutiny. However, the judge must not veer into an evaluation of the merits of the claim, or the probative weight of the evidence said to support it, or the potential for success." - See paragraph 47.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals - [See Practice - Topic 209.3 ].

Cases Noticed:

MacQueen et al. v. Nova Scotia et al. (2013), 338 N.S.R.(2d) 133; 1071 A.P.R. 133; 2013 NSCA 143, leave to appeal refused [2014] S.C.C.A. No. 51, dist. [para. 30].

AIC Ltd. v. Fischer - see Fischer et al. v. IG Investment Management Ltd. et al.

Fischer et al. v. IG Investment Management Ltd. et al. (2013), 452 N.R. 80; 312 O.A.C. 128; 2013 SCC 69, refd to. [para. 31].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al. (2001), 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 37].

Hollick v. Metropolitan Toronto (Municipality) et al. (2001), 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 37].

Pro-Sys Consultants Ltd. et al. v. Microsoft Corp. et al. (2013), 450 N.R. 201; 2013 SCC 57, folld. [para. 40].

2038724 Ontario Ltd. et al. v. Quizno's Canada Restaurant Corp. et al. (2009), 250 O.A.C. 87; 2009 CarswellOnt 2533 (Div. Ct.), refd to. [para. 45].

Dell'Aniello v. Vivendi Canada Inc. (2014), 453 N.R. 150; 2014 SCC 1, refd to. [para. 47].

Jones et al. v. Zimmer GmbH et al. (2013), 333 B.C.A.C. 151; 571 W.A.C. 151; 2013 BCCA 21, refd to. [para. 48].

Counsel:

Scott C. Norton, Q.C., and Scott R. Campbell, for the appellants;

Raymond F. Wagner, Q.C., Michael Dull and Madeleine Carter, for the respondent.

This appeal was heard in Halifax, N.S., on January 29, 2015, before Farrar, Saunders and Bryson, JJ.A., of the Nova Scotia Court of Appeal. Saunders, J.A., delivered the following reasons for judgment for the court on July 7, 2015.