Class Action Case Update: Justice Perell's recent decision in Wise v Abbott Laboratories, Limited, 2016 ONSC 7275 addressed a number of key areas of interest for the class action bar. Full series updates can be found below.

Justice Perell's recent decision in Wise v Abbott Laboratories, Limited, 2016 ONSC 7275 to summarily dismiss a proposed class action prior to certification, provides some valuable lessons in the post-Hryniak era and the affirmation of the plaintiff's onus on summary judgment.

Overview

Wise was a proposed product liability class action concerning AndroGel™, a topical ointment marketed for the treatment of conditions associated with testosterone deficiency. The Wises commenced a proposed class action against Abbott Laboratories, Limited, Abbott Products Inc., Abbott Products Canada Inc., and Abbvie Products LLC (collectively, "Abbott"), claiming that AndroGel™ led to an increased risk of serious cardiovascular ("CV") events.

Among other claims, the Wises alleged that Abbott fabricated a condition known as "LowT" to refer to naturally occurring side effects of aging experienced by men, such as feeling sad or grumpy, deterioration in the ability to play sports, decreased libido and falling asleep after dinner. The Wises alleged that Abbott targeted its marketing for AndroGel™ at aging men with no genuine medical condition, putting them at an increased risk of harm, despite the product being essentially useless to them.

Abbott brought a pre-certification motion for summary judgment to dismiss the claim. The motion turned on Abbott's argument that the Wises could not prove general causation, a constituent element of their claims. Justice Perell found that the Wises failed to prove general causation and summarily dismissed the proposed class proceeding.

The Wises' "Trumpian Argument"

Abbott brought a pre-certification motion for summary judgment to dismiss the claim on the basis that the Wises did not prove their case on a balance of probabilities. Justice Perell ultimately granted the motion for summary judgment, finding that the Wises failed to establish that AndroGel™ can cause serious cardiovascular events.

The Wises resisted the defendants' motion, but did not formally bring a cross-motion for summary judgment. However, they did make the argument that the case was appropriate for partial summary judgment in their favour (namely, that they satisfied three of five certification criteria).

Justice Perell reviewed a number of cases in which pre-certification summary judgment had been granted, relying significantly on the decision of the BC Supreme Court in Player Estate v Janssen-Ortho Inc., 2014 BCSC 1122. Pointing out the similarity between the summary judgment regime in Ontario and the summary trial regime in BC, Justice Perell found that "[t]he Wises' Trumpian arguments in the immediate case to resist a summary determination – unless they were the winner – are similar to the arguments made by the plaintiffs in Player Estate v. Janssen-Ortho Inc. that were rejected by Justice Bracken."

The Plaintiffs' Onus on Summary Judgment

Interestingly, the Court actually initially disagreed with Abbott's argument that there was no genuine issue requiring a trial about general causation. Justice Perell relied on the two-step process set out in Hryniak v Mauldin, 2014 SCC 7. The Court must first determine whether there is a genuine issue requiring a trial based on the evidence in the motion record. If there appears to be a genuine issue requiring a trial at this stage, the Court should then determine whether a trial can be avoided using its powers under Rule 20.04(2.1) and (2.2), as long as their use is not against the interests of justice.

He characterized the Supreme Court's decision on summary judgment as requiring Courts to perform a "judicial gut check", to ensure that they are confident they can reach a fair determination without trial. After reviewing the record, Justice Perell found that there was a genuine issue relating to causation. However, having regard to all the evidence, he concluded that he could not infer a finding of general causation, and dismissed the proposed class action on that basis.

In the process, and perhaps most importantly, Justice Perell affirmed that there is no reverse onus in the case of a motion for summary judgment. The Wises still had to prove their case on a balance of probabilities—that onus did not change when the defendants brought a motion for summary judgment.

Wise v Abbott Laboratories, Limited Class Action Case Update Series