Class Action Decision at Alberta Court of Appeals

Recognition /

Orvel L. Currie, Responsible Partner for Calgary, wishes to congratulate Clint G. Docken, QC, Brian P. Hennings and Mark D.J. Schulz of our Calgary Office who recently argued and were successful in overturning on appeal an earlier decision declining to certify a class action which sought damages on behalf of a national class of individuals who had the Birmingham Hip Replacement (BHR) implanted:  Warner v. Smith & Nephew Inc., 2016 ABCA 223.

In this case, The Court of Appeal was asked to review whether or not Poelman J considered improper evidence in reaching his decision to decline certification and whether he failed to apply the Alberta Class Proceedings Act correctly. The Alberta Court of Appeal affirmed, among other things, that certification is a procedural hearing and not concerned with the merits of a proceeding. Based on our lawyer’s arguments, the Alberta Court of Appeal found that the Court of Queen’s Bench  had failed to consider key facts, misapprehended the evidence and considered irrelevant considerations.

It is expected that this decision will be of considerable precedential value for a number of reasons:

  • It is the first decision in Alberta where the Court of Appeal overturned a lower court deciding on certification given the considerable deference ordinarily given to case management judges who hear class actions from the outset through to certification and
  • It is the only known reported decision in Canada dealing with the issue of a case management justice recusing herself, a different judge hearing certification and how that affects the deference afforded to certification justices;
  • It is the one of few national class actions certified in Alberta and one of a limited number certified in a central or prairie province to advance a national claim;
  • It endeavours to set out the appropriate issues for previously contentious issues like weighing of evidence and to what extent the merits of a case can impact a certification decision in Alberta;

‚ÄčThis is a significant outcome for our Western Canadian Class Action Group and a strong example of our firm’s comparative strengths in litigating complex matters, especially class proceedings. Clint G. Docken, QC, one of the newest additions to our Calgary Office who joined our firm in January 2016 took our two newest litigators and gave them considerable responsibility on this file. Mr. Hennings not only assisted Mr. Docken with the preparation of facta and argument, but also assisted in preparing appeal records and the notice of appeal. In addition to working with Mr. Docken & Mr. Hennings on the above, Mr. Schulz, having a medical background as a Registered Nurse prior to law school, found evidence that the BHR had actually been the subject of a medical device recall after certification, which was subsequently advanced as new evidence to the Court of Appeal and ultimately permitted and considered by the Court of Appeal and important in the result.

I wish to congratulate Mssrs. Docken, Hennings & Schulz on a job well done and an outstanding result for our firm and the class members.

Orvel L. Currie

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