B.C. Court Of Appeal Provides Its First Pronouncement On Sequencing Issues

• Published date: 26 July 2021
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Law Firm: Bennett Jones LLP
• Author: Ms Renée M. Gagnon and Ranjan K. Agarwal

The B.C. Court of Appeal's decision in British Columbia v The Jean Coutu Group (PJC) Inc., 2021 BCCA 219, is the first time the B.C. Court of Appeal has weighed in on class action sequencing issues. The core issue on appeal was whether the motion judge erred by making a sequencing order that required 2 of 48 defendants to participate in long, complex and expensive proceedings that could continue for years before their challenge to the Court's jurisdiction over them would be heard.

Background

The Province of British Columbia commenced a class proceeding on behalf of itself and all federal, provincial and territorial governments and agencies, seeking to recover opioid-related healthcare costs from 48 defendants involved in the manufacturing, marketing, distribution or sale of opioid drugs and products in Canada.

The case management judge held a sequencing hearing to determine the timing of preliminary applications proposed by the various defendants, including motions to strike and for summary judgment and objections to the Court's jurisdiction.

The case management judge held that all applications should proceed along with the certification application based on his assessment of the non-exhaustive factors originally laid out in Cannon v Funds for Canada Foundation, 2010 ONSC 146, for guiding the exercise of discretion in sequencing.

Summary of the B.C. Court of Appeal's Decision

Two of the defendants based in Quebec, which do not carry on business, distribute or sell opioids in B.C., appealed the case management judge's decision. They argued that their jurisdiction applications should proceed before the certification application and along with all other preliminary applications.

In a unanimous decision, the B.C. Court of Appeal overturned the motion judge's decision, finding that the judge erred by failing to give adequate weight to the scope and complexity of the proceedings and to the prejudice to the Quebec defendants of not having the foundational question of jurisdiction considered at an early stage of long and complex proceedings: "By requiring the [Quebec defendants] to wait until the certification hearing, they will incur considerable expense and remain involved in lengthy and complex litigation without having that foundational issue considered at the outset" (para 93).

In arriving at this decision, the Court of Appeal outright rejected the presumption that certification motions ought to be the first motions heard in class actions, which dates back to...