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CIVIL PROCEDURE - Parties - Class or representative actions 

Thursday, July 08, 2021 @ 6:29 AM  


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Appeal by the Quebec defendants from a sequencing decision by a judge tasked with case management of this putative class proceeding. The Province of BC sought to recover opioid-related health-care costs from 48 defendants involved in the manufacturing, marketing, distribution or sale of opioid drugs and products in Canada. The judge ordered that all preliminary applications were to be heard in conjunction with the certification hearing. This included three groups of applications proposed by the various defendants, including motions to strike and for summary judgment, objections to the court’s jurisdiction, and challenges to the constitutionality of the Opioid Damages and Health Care Costs Recovery Act. Two appellants sought to set aside the term of the order that required their applications challenging the court’s jurisdiction to proceed at the same time as the certification application and in conjunction with all other preliminary applications. The appellants argued the BC court lacked jurisdiction simpliciter and that the judge erred by not allowing them to bring their jurisdiction applications to determine that threshold issue prior to the certification application. Both appellants were incorporated or based in Quebec and did not carry on business, distribute or sell opioids in BC.

HELD: Appeal allowed. The part of the order requiring the appellants’ jurisdiction simpliciter challenges to be heard in conjunction with the certification hearing was set aside. The judge was not required, as a matter of law, to sequence the parties’ jurisdiction simpliciter applications first, as a threshold issue. The order did not resolve, or curtail resolution of, the parties’ substantive rights. It was a discretionary, procedural order made with respect to the conduct of the proceeding. The subject matter of the proposed pre-certification application was a factor for the case management judge to consider but it did not alter the nature of the discretionary sequencing order nor eliminate consideration of other relevant factors. The judge erred, however, in the exercise of his discretion by making a sequencing order that effectively required the Quebec defendants to remain participants in lengthy, complex and expensive proceedings that might continue for years before having the opportunity to challenge the court’s territorial competence over them. The judge erred by failing to give adequate or any weight to the magnitude and complexity of this proceeding and the potential prejudice the appellants would suffer from the sequencing order that required them to remain involved in the proceeding without the opportunity to challenge, at an early stage, whether the court could properly exercise jurisdiction over them.

British Columbia v. Apotex Inc., [2021] B.C.J. No. 1202, British Columbia Court of Appeal, M.V. Newbury, R. Goepel and G.B. Butler JJ.A., June 4, 2021. Digest No. TLD-July5202100