Warner v. Smith & Nephew Inc., [2016] A.R. TBEd. JL.079

• Judge: Paperny, Slatter and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: July 26, 2016
• Citations: [2016] A.R. TBEd. JL.079;2016 ABCA 223

Warner v. Smith & Nephew Inc., [2016] A.R. TBEd. JL.079

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. JL.079

Milana Warner (appellant/plaintiff/applicant) v. Smith & Nephew Inc. (respondent/defendant/respondent)

(1501-0077-AC; 2016 ABCA 223)

Indexed As: Warner v. Smith & Nephew Inc.

Alberta Court of Appeal

Paperny, Slatter and O'Ferrall, JJ.A.

July 26, 2016.

Summary:

In 2005, the plaintiff had the defendant's system implanted into her hip. The plaintiff developed toxic ion levels that required removal of the system in 2012 and a further surgery for a full hip replacement. The plaintiff sued the defendant manufacturer. The plaintiff sought certification of the product liability claim as a class action under the Class Proceedings Act, with her as representative plaintiff on behalf of nine other individuals who had the same result with the defendant's product. The judge holding the certification hearing declined certification under s. 5 of the Act on the grounds that there was no identifiable class of two or more persons, the claims did not raise a common issue, a class action was not the preferable procedure for resolving the common issues, and the plaintiff was not a proper representative plaintiff. The plaintiff appealed on the grounds that the certification judge failed to apply the appropriate legal standard to the evidence (i.e., some basis in fact for each of the s. 5 certification requirements) and failed to consider key facts, misapprehended the evidence and considered irrelevant factors.

The Alberta Court of Appeal, Slatter, J.A., dissenting, allowed the appeal.

Practice - Topic 209

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - General principles - The Alberta Court of Appeal held that class action legislation "was adopted to provide the courts with a procedural tool that would allow them to deal efficiently, and on a principled rather than ad hoc basis, with increasingly complicated litigation. Product liability cases, for example, generally lend themselves well to class proceedings. ... The class action can provide a more efficient means of recovery for plaintiffs who have suffered harm as the result of a mass produced product and for whom the bringing of individual claims is not a viable option ... Class actions have distinct advantages over a multiplicity of individual suits in such cases: judicial economy, access to justice, and behaviour modification. A liberal approach to the interpretation of class proceedings legislation is required in order to ensure those objectives are achieved. ... It must also be emphasized that class certification is not a trial, nor is it a summary judgment application. It does not involve a consideration of the claim on its merits. It is 'a procedural motion which concerns the form of an action, not its merits '" - See paragraphs 8 to 10.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - Section 5(1)(b) of the Class Proceedings Act required that there be an identifiable class of two or more persons - The Alberta Court of Appeal stated that "The class must be based on objective criteria, bearing a rational connection or relation to the common issues. Not every class member needs to be named or known: a definition is sufficient if it enables a court to determine whether any person coming forward is or is not a class member ... Even if a class definition requires amendment before or after certification, a class can be certified. That some members of the class might not have a claim is not on its own a disqualifying factor. The identifiable class requirement has been described as 'a low threshold'" - See paragraph 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) - In 2005, the plaintiff had the defendant's medical device implanted into her hip - The plaintiff developed toxic ion levels that required removal of the device in 2012 and a further surgery for a full hip replacement - The plaintiff sued the defendant manufacturer - The claim was that the device was unsafe, not fit for its intended purpose and not of merchantable quality - The plaintiff sought certification of the product liability claim as a class action under the Class Proceedings Act, with her as representative plaintiff on behalf of nine other individuals who had the same result with the defendant's product - The Alberta Court of Appeal held that the certification judge erred in not certifying the class action on the grounds that the procedural requirements of s. 5 of the Act were not met - There was an identifiable class of two or more persons, the action raised common issues, a class action was the preferable procedure for resolving the matter, and the plaintiff was a proper representative plaintiff - The certification judge's conclusion that there was little prospect of the plaintiff's claim that the device should never have been made available to patients was not sustainable - It was not open for the certification judge to weigh conflicting evidence to opine on the relative merits of the claim at the certification stage - Moreover, it was inappropriate to rely on that conclusion to determination that a class action was not a preferable procedure - The court ordered that the claim be certified for the class as defined by the plaintiff - See paragraphs 11 to 44.

Counsel:

C.G. Docken, Q.C., and B. Hennings, for the appellant;

M.M. Thomson and N. Kluge, for the respondent.

This appeal was heard on June 15, 2016, before Paperny, Slatter and O'Ferrall, JJ.A., of the Alberta Court of Appeal.

On July 26, 2016, the following memorandum of judgment was delivered and the following opinions were filed:

Paperny and O'Ferrall, JJ.A. - see paragraphs 1 to 44;

Slatter, J.A., dissenting - see paragraphs 45 to 130.