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CIVIL PROCEDURE - Parties - Class or representative actions

Monday, May 31, 2021 @ 9:23 AM  


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Application by the Bayer and Janssen defendants for leave to appeal an application sequencing order. The underlying action was a proposed class proceeding seeking damages for pharmaceutical product liability. A certification hearing was scheduled for April 2022. In 2019, the plaintiff delivered an unfiled application for certification with five supporting affidavits. In 2020, at a judicial management conference, the defendants advised they intended to apply to strike all or a portion of two of the supporting affidavits as inadmissible. The chambers judge determined that the applications to strike would be heard at the same time as the certification application, as it was desirable to rule on the admissibility of the impugned affidavit evidence in the context of a full evidentiary record. The defendants sought leave to appeal the chambers judge’s sequencing order.

HELD: Application allowed. The proposed appeal was of significance to the practice in providing guidance as to the proper procedures to be followed on sequencing applications, which were increasingly common in proposed class proceedings. The court had yet to comment on the scheduling of applications to strike inadmissible evidence in advance of the certification application. The proposed appeal was of importance to the action, as it impacted the way the certification application would proceed. There was a reasonable possibility the appeal would be granted on the merits, as there was an arguable case the chambers judge erred in principle or made an order unsupported by the evidence, or that the order would result in an injustice. The appeal would not unduly hinder the action’s progress given that the certification hearing was more than a year away and the defendants agreed to expedite the appeal.

Achtymichuk v. Bayer Inc., [2021] B.C.J. No. 706, British Columbia Court of Appeal, R. Goepel J.A., April 9, 2021. Digest No. TLD-May312021002