Sequencing Shake Up In British Columbia

• Published date: 27 July 2021
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Law Firm: Dentons
• Author: Ms Marina Sampson, Matthew Fleming and Adam Donaldson (Summer Student)

Introduction

In British Columbia v. The Jean Coutu Group (PJC) Inc.(the Appeal), the British Columbia Court of Appeal (the BCCA) held that the certification application in a class action proceeding is not the presumptive first step. ¹ In overturning the decision of the British Columbia Supreme Court (the BCSC), Justice Butler found that the appellants, the Jean Coutu Group (PJC) and Pro Doc Limitée (Pro Doc), would be prejudiced if their jurisdiction applications were not heard before the certification application.² Traditionally, in many Canadian jurisdictions, certification applications are heard in advance of or concurrent with any preliminary applications to strike or for summary judgment. Defendants who seek to bring motions to strike or for summary judgment in advance of certification often found their motions "sequenced" to be heard together with or even after certification. This decision reaffirms the factors that courts will consider in a class action sequencing analysis and highlights how that analysis must be applied in the specific context of the case, such that the certification application will not always be heard first.³

Background

On August 29, 2018, the BC Government launched a class action lawsuit against opioid drug companies. The BC Government, along with other federal, provincial, and territorial governments, sought to recover millions of dollars from at least 48 defendants who were, ". . . involved in the manufacturing, marketing, distribution or sale of opioid drugs and products in Canada."⁴ The defendants included PJC and Pro Doc, companies incorporated in Quebec.⁵

In March 2020, several named defendants, including PJC and Pro Doc, filed jurisdiction simpliciter challenges arguing that BC was not the appropriate forum in which to hear the claim. In British Columbia v. Apotex Inc., the British Columbia Supreme Court ordered these jurisdiction challenges to proceed in conjunction with the certification hearing for the class action, and not before.⁶ PJC and Pro Doc appealed this sequencing order as the only two defendants incorporated or based in Quebec with no involvement in BC.⁷ They argued that the sequencing order prevented the defendants from challenging jurisdiction before the certification motion and was prejudicial. It required PJC and Pro Doc to remain involved in lengthy, complex, and expensive litigation pending a determination of whether the Court even had jurisdiction.

The BCCA's Analysis

The central question before the...