What’s fanned the controversy is a recent decision of the British Columbia Supreme Court, Charlton v

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What's fanned the controversy is a recent decision of the British Columbia Supreme Court, Charlton v. Abbott Laboratories Ltd ., certifying a class action centred on the diet drug Meridia against both the brand-name and generic manufacturers. Earlier, the Quebec Court of Appeal refused to certify a class action concerning the same drug, essentially cheap travel tickets from canada holding that the plaintiff's allegations were too weak to support a claim.
"Both cases were based on substantially the same claims, with very little, if any, material facts that were different, and two years ago I would have considered it impossible that B.C. would certify what Quebec would not," says James Sullivan of Blake, Cassels Graydon LLP's Vancouver office. "As I see it, the B.C. decision confirms that the bar for certification remains very low in this province and may now be the lowest in Canada."
"The fact that Quebec refused to certify didn't seem to be of much concern to the B.C. judge, but that may be due to jurisdictional differences that make it harder for B.C. defendants to undermine a case before certification," he says.
"What the defence bar is bleating about are that class actions work out here," he says. "If they really believe they have good defences, let them consent to certification and try to beat the hell out of us at trial."
Historically, Quebec has been regarded as the haven for Canadian class actions because its test is liberal and its legislation does not require any evidence (as opposed to allegation) to support certification. What has changed, as evidenced by recent decisions, is that the courts are undertaking a more thorough analysis of the procedural requirements for certification.
Indeed, Charlton is not the first pharmaceutical class action in which BC and Quebec courts haven't seen eye-to-eye of late. In a case involving cheap travel tickets from canada children s over-the-counter cold medications, the Quebec Court of Appeal upheld the Superior Court's refusal to certify on the basis that the action was "bereft of any chance of success." The B.C. Supreme Court, however, granted certification, a decision that is under appeal.
Mr. Sullivan adds that since 2007 the B.C. Court of Appeal has not overturned a single certification on the basis of class action procedural issues, cheap travel tickets from canada such as the existence of common issues or the manageability of the litigation.
The three reversals occurred in a competition case where the court found that indirect purchasers were not appropriate cheap travel tickets from canada defendants, an aboriginal case where the decision was that the group involved did not have standing to sue, and a consumer protection case that was denied certification because its facts did not fit within the court's interpretation of the relevant legislation.
"We have a bench that is favourably disposed to class action as a means of access to justice, that regards certification as a purely procedural matter, and that does not have enough experience with class action trials to know how unwieldy and unmanageable they can be," he says. "So part of the issue is the maturation process."
While the legislative cheap travel tickets from canada tests for certification are similar in both provinces, there is no automatic right in B.C. to cross-examine plaintiffs on their affidavits and courts are reluctant to order the production of medical records before certification.
"B.C. has a more streamlined approach, whereas the Quebec courts will look more closely into such things as the nature of the representative plaintiff and his or her suitability to represent the class," Mr. Sutton says.
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