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CIVIL PROCEDURE - Parties - Class or representative actions - Certification - Common interests and issues - Definition of class - Procedure - Representative plaintiff

Monday, April 10, 2017 @ 10:42 AM  


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Application by the representative plaintiffs for certification of a class action against the Lennox defendants. The defendants designed, manufactured and distributed glass-fronted gas fireplaces. The plaintiffs alleged the defendants knew or ought to have known that their fireplaces were defective and dangerous, and failed to take steps to ensure their safety or warn owners of the dangers. The plaintiffs adduced expert evidence regarding the heat generated by the defendants' products, and instances of more than 100 children burning their hands or faces through contact with similar gas fireplaces. The plaintiffs sought certification of a consumer class who had Lennox fireplaces in their home, and a health care cost class of individuals injured by a Lennox fireplace who received health care services. They advanced causes of action in negligence, negligent misrepresentation, breach of the Business Practices and Consumer Protection Act (BPCPA), breach of the Competition Act, and strict liability.  The defendants opposed certification. They alleged the plaintiffs brought an economic loss claim under the guise of a personal injury action involving fundamentally individual issues. They submitted the pleadings failed to disclose a cause of action.

HELD: Application allowed. The pleadings in negligence pled sufficient facts in support of a duty of care, and to disclose a claim based on negligent development, design and testing, and the defendants' duty to warn. The pleadings failed to disclose a claim for negligent misrepresentation, as the pleadings concerning reliance were effectively a legal conclusion without provision of sufficient particulars. For the same reasons, a claim under the Competition Act could not be sustained. The claim of a deceptive act or practice contrary to ss. 4 and 5 of the BPCPA was sufficiently pled, as reliance was not required to plead an arguable case for damages or restitution under ss. 171 and 172. The claim the defendants engaged in unconscionable or deceptive acts contrary to ss. 8 and 9 of the BPCPA was deficiently pled due to lack of any particulars concerning inequality, duress or excessive terms. Longstanding jurisprudence rejected the doctrine of strict liability in product liability cases. The plaintiffs established an identifiable class of two or more members in respect of both the consumer and health costs recovery class. With respect to the viable claims, the plaintiffs proposed appropriate common issues, subject to modification and deletion to eliminate repetition. Principles related to access to justice and economic considerations supported a conclusion that a class proceeding was the preferable procedure for the fair and efficient resolution of the common issues.

Cantlie v. Canadian Heating Products Inc., [2017] B.C.J. No. 332, British Columbia Supreme Court, W.J. Harris J., February 22, 2017. Digest No. TLD-Apr102017001