On June 20, 2014, the BC Supreme Court released a decision in Player v. Janssen-Ortho Inc., a proposed product liability class action involving transdermal fentanyl patches. The Court dismissed the action against two of the five defendants in a summary trial prior to certification.
The case is significant in three ways:
- Scope of inquiry: The Court held that while in other provinces pre-certification class proceedings are treated as “any old [individual] action”, in BC, proposed class actions are treated as “action[s] with ambition”. In this context, the Court concluded that evidence relating to the proposed class—and not just the individual plaintiff—could be considered on a pre-certification summary trial application, despite that any judgment would bind only the plaintiff.
- Summary trial despite factually complex issues: In the past, courts in BC have held that the summary trial procedure is not well-suited to factually complex cases. Most pre-certification summary trials in BC have concerned questions of contract or statutory interpretation. They involved few, if any, disputed facts and a minimal evidentiary record. Here, however, the Court held that the case was suitable for summary determination and rendered judgment despite that it was required to make findings of fact concerning pharmaceutical design and drug safety and that the materials were voluminous—more than 5,000 pages, including affidavits, exhibits, and expert reports.
- Legitimate policy reasons for pre-certification summary determination: This decision appears to depart from a recent trend of cases which have discouraged certain pre-certification applications. InPlayer, the Court held that there are legitimate policy reasons to allow for summary determination in proposed class actions. The Court was bolstered by this year’s decision of the Supreme Court of Canada in Hryniak v. Mauldin,  which recognized that a “culture shift” is required to move away from conventional trials in favour of simplified pre-trial procedures like summary judgments (and in BC, summary trials). The Court held that where the court can find the necessary facts through the summary process (notably, here, some examinations for discovery and cross examination of experts had taken place), it promotes efficiency to issue judgment at the pre-certification stage.
It remains to be seen whether this case will open the door to more pre-certification summary determinations.