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BCCA Affirms Denial of Certification of Overlapping Class in Class Action

4 minute read

Wilson v DePuy International Ltd.1, is an interesting decision from the British Columbia Court of Appeal involving overlapping class actions and attempts to settle a class action. In this appeal, class actions were commenced in Ontario (Crisante v DePuy Orthopedics, 2013 ONSC 5186), Quebec (Dick c Johnson & Johnson Inc., 2014 QCCS 2301), and British Columbia (Wilson v Depuy International Ltd., 2018 BCSC 1192) dealing with a recalled hip replacement. Class actions were certified in Quebec for Quebec residents and in Ontario on an opt-out basis for all potential plaintiffs except Quebec and British Columbia residents.2

Decision of the Chambers Judge

The Plaintiff (Respondent in this appeal) applied to have the action certified in British Columbia and for approval of a settlement. The chambers judge approved the B.C. settlement on the condition that the class be restricted to B.C. residents and those who had opted out of the Ontario action within the opt-out time-frame, and was not prepared to certify a class that included individuals who were already members of the class certified in Ontario.3 The Defendants (Appellants in this appeal) appealed the refusal to certify the greater class and the refusal to approve the settlement.4 While the Respondent did not contest the appeal, the Representative Plaintiffs in the Ontario action were granted intervener status and opposed the appeal.5

Issues before the British Columbia Court of Appeal

On appeal, the Court considered three issues:

(1) Did the Chambers Judge err in his application of the preferabiltiy criteria in s. 4(1)(d) and 4(2)?

Whether the chambers judge erred by considering the Ontario proceedings as the preferable procedure, was answered in the legislation. Subsection 4(3) of the Class Proceedings Act, RSBC 1996, c 50, states that in multi jurisdictional class proceedings…“the court must determine whether it would be preferable for some or all of the claims of the proposed class members…to be resolved in the proceeding commenced elsewhere.”6 Even prior to the enactment of subsections (3) and (4), it was proper for a certification judge’s discretionary decision on preferability to take into account the effect of a multi-jurisdictional class on the question of whether another more suitable procedure was available.7 The Court found that “the chambers judge considered the question that the legislation poses and committed no error in that regard.”8

(2) Overlapping Classes The Court noted that the fact of an overlapping class is not in and of itself a stumbling block to certification, it is how the overlap came about, and the effect of the overlap that is in issue.9 In this case, counsel for Ontario agreed to excise British Columbia and Quebec from its national opt-out certification request. The settlement proposal, including an opt-in for non-British-Columbia residents, was a surprise to Ontario counsel.10

The Court noted, “the effect of the overlap is to create a situation in which a number of individuals are potentially members of two classes. Certification of an overlapping class would disrupt the process and approach taken in Ontario, where substantially more ASR systems were used than in B.C.”11 The Court also observed that the chambers judge considered the issue of judicial comity, in that the judge in the Ontario action was alive to the issues relating to a national opt-out class. He considered the pending actions in British Columbia and Quebec, and concluded that it was best to defer to the previously certified Ontario action.12 The Court concluded that the effect of the overlapping classes would likely create chaos and confusion, particularly for the Ontario action.13

(3) Access to Justice The Court reiterated that the principal purposes underlying class actions are: access to justice, judicial economy, and behaviour modification.14 The Court found the chambers judge did consider the access to justice issue, although he did not give it a great deal of weight, it could not be said that he overlooked it.15 It was not for the Court of Appeal to reweigh this factor.16


Ultimately, the Court dismissed the appeal,17 noting that “although a result will not be reached as quickly as in the British Columbia or Quebec actions, that result…is not sufficient to certify an overlapping class. In the end, access to justice will be achieved without the complexity of overlapping processes and all of the confusion that would entail in this case.” this case.”18

1 Wilson v DePuy International Ltd., 2019 BCCA 440.
2 Ibid at para 1.
3 Ibid at para 2.
4 Ibid.
5 Ibid at para 4.
Ibid at para 46.
7 Ibid at para 47.
8 Ibid at para 48.
9 Ibid at para 54.
10 Ibid at para 55.
11 Ibid at para 56.
12 Ibid at para 57.
13 Ibid at para 58.
14 Ibid at para 59.
15 Ibid at para 65.
16 Ibid.
17 Ibid at para 68.
18 Ibid at para 66

Jacqueline M. Palef

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