Case information

Civil procedure — Class actions — Settlement approval — Class action certified in Ontario with membership being nationwide except for residents of Quebec and British Columbia — In a proposed settlement in British Columbia, class membership being defined as including residents from outside of British Columbia on an opt in basis — Settlement being approved but class being limited to residents of British Columbia — How should courts apply the preferable procedure requirement, and its access to justice elements, to questions of certification as between two overlapping class actions? — Class Proceedings Act, R.S.B.C. 1996, c. 50.

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In 2010, replacement hip prostheses manufactured by the applicants were recalled due to high failure rates. In 2011, the respondent, Mr. Wilson, commenced a class action against the applicants in British Columbia. Similar class actions were commenced and certified in Quebec for Quebec residents and in Ontario for all potential plaintiffs except Quebec and British Columbia residents (the “national class”). Eventually, Mr. Wilson arrived at a settlement agreement with the applicants. The class proposed in the settlement agreement included national class members, who would be able to opt in to the British Columbia settlement. In 2018, the applicants and Mr. Wilson applied to have the British Columbia action certified and for court approval of the settlement. The representative plaintiffs from the national class action, who are respondents to the leave application, opposed the inclusion of national class members in the British Columbia action. The chambers judge concluded that Mr. Wilson’s action should be certified and the settlement approved except for the proposed membership in the class, which he limited to residents of British Columbia. He concluded that providing for an opt in class for non-residents would not be the preferable procedure. The Court of Appeal dismissed the applicants’ appeal.