Docket: 1928 DJO Canada, Inc. v. DJO, LLC, 2011 SKCA 106

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 106 Date: 20110921 Between: Docket: 1928 DJO Canada, Inc. and DJO, LLC Appellants (Defendants) - and - Sean Schroeder, Eleanore Smiroldo, as Litigation Guardian for Eden Bobyk and Allister Curtis Veinot Respondents (Plaintiffs) - and - McKinley Medical LLC, McKinley Medical Corporation and Curlin Medical Inc. Respondents (Defendants) Between: Docket: 1929 McKinley Medical LLC, McKinley Medical Corporation and Curlin Medical Inc.

Appellants (Defendants) - and - Sean Schroeder, Eleanore Smiroldo, as Litigation Guardian for Eden Bobyk and Allister Curtis Veinot Respondents (Plaintiffs) - and - DJO Canada, Inc. and DJO, LLC Respondents (Defendants) Coram: Richards, Ottenbreit and Herauf JJ.A. Counsel: Peter Cavanagh and Neil Rabinovitch for McKinley Medical LLC et al Gordon Kuski, Q.C. and Amanda Quayle for DJO Canada, Inc. et al Grant Scharfstein, Q.C., David Klein and Douglas Lennox for Sean Schroeder et al Appeal: From: 2010 SKQB 125 Heard: April 1, 2011 Disposition: Appeal dismissed Written Reasons: September 21, 2011 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Ottenbreit

The Honourable Mr. Justice Herauf Richards J.A. I. Introduction [ 1 ] The Respondents, Sean Schroeder et al , allege they were injured as a result of having used a “pain pump” to infuse local anaesthetics after surgery. They sued the appellant companies on the basis of causes of actions grounded in both negligence and in breaches of the statutory warranties found in The Consumer Protection Act , S.S. 1996, c. C-30.1 (the “ CPA ”). Their action was ultimately certified as a class action pursuant to The Class Actions Act , S.S. 2001, c.

C-12.01. [ 2 ] This appeal is undertaken pursuant to an order granting leave to appeal. The sole question before the Court is whether the certification judge erred in deciding the Respondents’ pleadings disclose a cause of action in relation to the alleged breach of CPA warranties. [ 3 ] I conclude, for the reasons below, that the appeal must be dismissed. The certification judge made no reviewable error in the disposition of the application before him. II. Background [ 4 ] Pain pumps are disposable devices used for pain relief following surgery.

They infuse a prescription anaesthetic through a catheter implanted by a surgeon into the site of an operation. The pumps are sold with empty reservoirs. The surgeon determines the placement of the catheter, the nature of the anaesthetic to be used, the dosage and the duration of the pump’s use. [ 5 ] The appellants, McKinley Medical LLC and McKinley Medical Corporation (collectively “McKinley”) manufactured a pain pump known as the DonJoy Pain Control Device (the “Pain Pump”).

The appellants, DJO Canada, Inc. and DJO, LLC (collectively “DJO”) distributed the Pain Pump in Canada between 2004 and 2008. [ 6 ] The Respondents had shoulder or knee surgeries at St. Paul’s Hospital in Saskatoon. They were each implanted with a Pain Pump. Each alleges that the Pain Pump was purchased from the hospital. [ 7 ] The Respondents say the Pumps caused a serious adverse reaction known as chondrolysis.

This is a painful and debilitating loss of cartilage which can result in functional disability. [ 8 ] As noted above, the Respondents commenced an action pursuant to The Class Actions Act against both McKinley and DJO. They advance two causes of action in their Third Fresh as Amended Statement of Claim (the “Statement of Claim”). First, they say McKinley and DJO acted negligently in, among other things, the design, development, marketing and sale of the Pain Pumps. They also plead and rely on the CPA .

[ 9 ] With respect to the CPA , the Respondents allege that McKinley and DJO were “manufacturers” within its meaning and that, as such, both breached the statutory warranties prescribed by the CPA . III. The Legislation [ 10 ]

Part III of the CPA imposes a number of warranties on retail sellers in relation to the consumer products they sell. Sections 48(

d) and (

e) of the CPA relate to warranties respecting the quality and fitness for purpose of such products. They provide those warranties in the following terms: 48 Where a consumer product is sold by a retail seller, the following warranties are deemed to be given by the retail seller to the consumer: … (

d) that the product supplied under the contract is of acceptable quality , except that this warranty is deemed not to be given: (

i) respecting defects specifically drawn to the consumer’s attention before the contract is made; or (ii) where the consumer examines the product before the contract is made, respecting defects that examination ought to have revealed; (

e) where the consumer expressly or by implication makes known to the retail seller any particular purpose for which the product is being bought, that the product supplied under the contract is reasonably fit for that purpose , whether or not that is a purpose for which the product is commonly supplied, except that this warranty is deemed not to be given where the circumstances show that: (

i) the consumer does not rely on the retail seller’s skill or judgment; or (ii) it is unreasonable for the consumer to rely on the retail seller’s skill or judgment; [emphasis added] [ 11 ] The key aspects of s. 48, “retail seller,” “consumer” and “consumer product,” are defined in s. 39 of the CPA as follows: 39 In this Part: … (d) “consumer” means a person who buys a consumer product from a retail seller and includes a non-profit organization, whether incorporated or not, that has objects of a benevolent, charitable, educational, cultural or recreational nature and that acquires a consumer product from a retail seller, but no person who: (

i) acquires a consumer product for the purpose of resale shall be a consumer respecting that product; (ii) intends to use a consumer product in a business or who intends to use the product predominantly for business purposes but also for personal, family or household purposes is a consumer respecting that product, except that where goods are consumer products within the meaning of subclause (e)(ii) the individual or the corporation is a consumer for the purposes of this Part; (e) “consumer product” : (

i) means any goods ordinarily used for personal, family or household purposes and, without restricting the generality of the foregoing, includes any goods ordinarily used for personal, family or household purposes that are designed to be attached to or installed in any real or personal property, whether or not they are so attached or installed; and (ii) includes any goods bought for agricultural or fishing purposes by an individual or by a family farming corporation but does not include any implement the sale of which is governed by the provisions of The Agricultural Implements Act ; … (l) “retail seller” means a person who sells consumer products to consumers in the ordinary course of his or her business but, subject to subsection 50(1), does not include a trustee in bankruptcy, receiver, liquidator, sheriff, auctioneer or person acting under an order of a court; [emphasis added] [ 12 ]

Section 50 of the CPA builds on s. 48 by deeming certain warranties referred to in s. 48 to also have been given by manufacturers:

(1) For the purposes of subsection (2), “retail seller” includes those persons who are excluded from the definition of retail seller in clause 39(l).

(2) Subject to subsection (3), the manufacturer of consumer products is deemed to give to consumers of those products the same statutory warranties respecting those products as the retail seller is deemed to have given pursuant to clauses 48(

b) to (h). … [ 13 ] “Manufacturer” is defined for this purpose as including persons who import or distribute consumer products manufactured outside of Canada.

Section 39(

h) says this: (h) “manufacturer” means a person who carries on the business of assembling, processing or manufacturing consumer products and includes: (

i) any person who attaches his or her brand name or causes or permits his or her brand name to be attached to consumer products; (ii) any person who describes himself or herself or holds himself or herself out to the public as the manufacturer of consumer products; and (iii) where consumer products are manufactured outside Canada and the foreign manufacturer of the products does not have a regular place of business in Canada, a person who imports or distributes those products; IV. The Decision Under Appeal [ 14 ] As indicated, the Respondents applied to have their action certified as a class action.

There were 29 individuals who had been exposed to the Pain Pump and wished to participate in the class action. Of that total, 17 alleged they had developed chondrolysis of the shoulder and 12 alleged they had developed chondrolysis of the knee. All of them but one reside in Saskatchewan. [ 15 ] There was apparently no real dispute at the certification hearing about whether McKinley and DJO were manufacturers within the meaning of the CPA . The Statement of Claim alleges (

a) McKinley was a manufacturer by virtue of s. 39(h)(ii) because it held itself out as such, (

b) DJO Canada, Inc. was a manufacturer as per s. 39(h)(iii) because it imported the Pain Pump, and (

c) DJO, LLC was a manufacturer because it attached its name to the Pump. [ 16 ] However, in order to have their action certified, the Respondents had to satisfy each of the five requirements referred to in s. 6(1) of The Class Actions Act . The first of these requirements, found in s. 6(1)(a), is of central importance to this appeal. It demands that, as a precondition of certification, the court must be satisfied “the pleadings disclose a cause of action.” [ 17 ] McKinley and DJO argued that the Statement of Claim did not disclose a cause of action in relation to the CPA .

They contended the CPA could not be engaged because there had been no sale of a consumer product by a retail seller. The certification judge rejected their submissions. His reasons in this regard are discussed in more detail below. In the end, and as noted, the action was certified. V. Analysis A. The Proper Approach to Section 6(1) (a) [ 18 ] In order to address the question of whether the Respondents’ pleadings “disclose a cause of action” as required by s. 6(1) (

a) of The Class Actions Act , it is necessary to first consider the test to be applied in this regard. [ 19 ] The leading Saskatchewan authority on the point is the decision of this Court in Hoffman v. Monsanto Canada Inc. , 2007 SKCA 47 , 283 D.L.R. (4th) 190. There, Cameron J.A. wrote as follows: [53] In the case of

section 6 (

a) of The Class Actions Act , which calls upon a representative plaintiff to satisfy a judge that the class has an apparently authentic or genuine cause of action, there is in our judgment no more effective and balanced and functionally appropriate way of setting the tenor and tone of the matter than to expect the representative plaintiff to satisfy the judge that there exists a plausible basis in principle and presumed fact for supposing the defendants could be held liable. [emphasis added] [ 20 ] The certification judge in this case made a comment to the effect that Hoffman had adopted a “slightly higher threshold” for s.

6(1) (

a) of The Class Actions Act than the threshold for Rule 173 (a). Rule 173(a), of course, is the feature of The Queen’s Bench Rules empowering a judge to strike a claim because it discloses no reasonable cause of action. The certification judge’s comment was not the subject of argument in this Court and it was not something on which his decision turned or on which the resolution of this appeal ultimately turns. As a result, these reasons do not address this issue. However, I would not wish my failure to comment on them to be read as an implied endorsement of the view that the “threshold” under s. 6(1)(

a) is necessarily “higher” or more rigorous than it is under Rule 173(a). If this point needs to be addressed, it will have to be in the context of an appeal where it is more squarely on the table. B. The Alleged Errors in Relation to Section 6(1) (a) [ 21 ] McKinley and DJO made separate submissions in prosecuting this appeal. In aggregate, their submissions boil down to a contention that, in dealing with s. 6(1) (a), the certification judge made four errors. They say the judge erred: (

a) In finding that a sale by a retail seller might not be essential to the existence of a manufacturer’s warranty. (

b) In finding that, in any event, it would be open to the trial judge to find that the hospital which sold the Pain Pumps was a retail seller. (

c) In finding that the provision and use of Pain Pumps by treating physicians amounted to the “sale” of a consumer product. (

d) In finding that Pain Pumps are “consumer products.” [ 22 ] I will consider each of these points in turn. 1. The “Retail Seller” Issue [ 23 ] As noted, the Respondents allege a breach of the CPA warranties in their Statement of Claim. They say McKinley and DJO are “manufacturers” within the meaning of the CPA . (In light of the allegations in the Statement of Claim, I do not understand this point to be contested for the purposes of the present proceedings.) The Respondents then go on to allege that the Pain Pump is a “consumer product” as per s. 39(e). This leads into an allegation that McKinley and DJO breached the warranties prescribed by ss. 48(

d) and (

e) and that, as a result, McKinley and DJO are strictly liable for personal injuries caused to the Respondents by the use of the Pain Pumps. [ 24 ] At the certification hearing, McKinley and DJO emphasized that s. 39(

d) of the CPA defines a “consumer” as someone “who buys a consumer product from a retail seller .” Given this definition, they said the Respondents’ failure to plead the hospital was a “retail seller” was a fatal blow to the cause of action under the CPA .

In other words, they contended no manufacturer’s warranty could arise in the absence of a sale by a retail seller and, because no such sale had been pleaded, no manufacturer’s warranties could have been deemed to exist. [ 25 ] In dealing with this submission, the certification judge concluded the absence of an averment that the Pain Pumps were sold by a retail seller was “…not necessarily fatal to the pleadings because the focus of this aspect of the plaintiffs’ claim is on the manufacturer – not the retail seller.” In this regard, he relied on s. 50(2) of the CPA which, as indicated above, says a manufacturer “…is deemed to give to consumers of [consumer products] the same statutory warranties respecting those products as the retail seller is deemed to have given pursuant to clauses 48(

b) to (h).” Ultimately, the certification judge said it was an “open question” whether a sale by a retail seller was a precondition to the existence of a manufacturer’s warranty. [ 26 ] In my view, the submissions of McKinley and DJO on this issue are obviously and undeniably correct.

Section 48 of the CPA clearly indicates that the warranties described therein are considered to be given by a retail seller only when a consumer product is “sold by a retail seller.” Section 50(2), which goes on to deem certain warranties to have been given by manufacturers, is not free-standing and does not independently impose warranty obligations. Rather, it deems manufacturers to have given the same warranties with respect to a consumer product as those given by the retail seller.

The unavoidable implication of this wording is that there will be no manufacturer’s warranty if there is no retail seller’s warranty. Hence, there will be no manufacturer’s warranty unless there has been a sale by a retail seller. [ 27 ] This reading of the CPA is confirmed by the way the term “consumer” is used in the legislation. As noted, s. 50(2) deems

manufacturers’ warranties to have been given to consumers. “Consumer,” in turn, is defined in s. 39(

d) to mean a person who buys a consumer product “from a retail seller.” Thus, considered from this perspective, the wording of the CPA again makes it clear that a manufacturer’s warranty will not exist in the absence of a sale by a retail seller. [ 28 ] Section 50(1) of the CPA is also significant in this regard. As will be recalled, it reads as follows: 50

(1) For the purposes of subsection (2), “retail seller” includes those persons who are excluded from the definition of retail seller in clause 39(l). [ 29 ] This provision would not be necessary if s. 50(2) was intended to independently impose warranty obligations on manufacturers. By specifically expanding the meaning of “retail seller” for purposes of s. 50(2), s. 50(1) necessarily underlines the idea that the existence of a manufacturer’s warranty is dependent on there having been a sale by a retail seller. [ 30 ] I should also note here that s. 64 of the CPA does not assist the Respondents.

It describes the individuals entitled to recover damages for a breach of warranty: 64 A person who may reasonably be expected to use, consume or be affected by a consumer product and who suffers personal injury as a result of a breach, by a retail seller or manufacturer, of a statutory warranty mentioned in clauses 48(

c) to (

f) is entitled, as against the retail seller or manufacturer, to recover damages arising from personal injuries that he or she has suffered and that were reasonably foreseeable as liable to result from the breach. [ 31 ] As is readily apparent, s. 64 does not create warranties or warranty obligations. Rather, it specifies who may claim damages if there is a breach of a warranty. In other words, s. 64 operates in relation to a breach of a manufacturer’s warranty only when a manufacturer has been deemed to have given a warranty.

As discussed above, this does not happen unless there has been a sale by a “retail seller.” [ 32 ] Again referring to s. 64, the Respondents submit that the use of the word “mentioned” in the phrase “a statutory warranty mentioned in clauses 48(

c) to (f)” is significant. As I understand their argument on this point, “mentioned” suggests that s. 64 is merely referencing s. 48 for the purpose of identifying warranties which arise directly through s. 64 itself. In my view, this is a wholly inappropriate construction to place on the CPA . There is no magic in the word “mentioned” in this context. Every warranty referred to in s. 48 is a warranty which, by the terms of s. 48 itself, is “deemed to be given by the retail seller to the consumer.” As a result, and as explained earlier, every warranty imposed on a manufacturer must also involve a consumer product sold by a retail seller.

Section 64 does not somehow displace the underlying scheme of

Part III of the CPA whereby warranties arise only on the sale of a consumer product by a retail seller. [ 33 ] As a consequence, the certification judge erred at the stage of his analysis where he dealt with the concerns of McKinley and DJO by saying it was an “open question” whether a sale by a retail seller was a precondition to the existence of a manufacturer’s warranty. In my respectful view, the proper construction of the CPA is so clear and undeniable that there can be no plausible cause of action against a manufacturer in a situation where there has been no sale by a retail seller.

It is true that there has been no prior judicial consideration of the point. However, this does not mean the Respondents’ argument is plausible. It must be evaluated for what it is. [ 34 ] But, this is not the end of the matter. It is still necessary to consider whether, if a sale by a retail seller is essential to the Respondents’ CPA claim, they have in any event satisfied this requirement. This question leads to the next point raised by McKinley and DJO. 2.

The Respondents’ Pleadings re: “Retail Seller” [ 35 ] The certification judge did more than say it was an open question whether a sale by a retail seller was a condition precedent to the existence of a manufacturer’s warranty. He also observed that, if such a precondition does exist, the Statement of Claim nonetheless discloses a plausible cause of action.

He said this: 57 In this case, the [Respondents] have established that they purchased the pain pumps from the hospital, and therefore it is certainly conceivable that a court could conclude that, in these circumstances, a hospital is a retail seller. … The plaintiffs have alleged that they bought the pain pumps from the hospital and that the hospital had obtained the product either directly or indirectly from the defendants.

This allegation, at the very least, advances a plausible cause of action that the defendants are manufacturers deemed to have provided statutory warranties. [ 36 ] McKinley and DJO contend this was an error. They say

Part III of the CPA was designed to address an imbalance between the relative powerlessness of retail consumers on the one hand, and the strength and sophistication of retailers and manufacturers on the

other. In their view, no such imbalance exists in connection with the provision of goods used in health care because, in that context, theconsumer has the benefit of the expertise of his or her physician. They also say attaching statutory warranties to devices integral to theprovision of medical care would be undesirable from a public policy perspective. They submit that such a development would have achilling effect on medical professionals and would negatively affect physician-patient relationships. [37] The response to this line of argument is perhaps self-evident.

McKinley and DJO are not medical professionals. Rather, they aremanufacturers and there is clearly an arguable distinction to be made with respect to how the CPA might apply to medical professionalsas compared to how it might apply to manufacturers. For example, Sopinka J., writing for the Supreme Court in ter Neuzen v.

Korn, (SCC), [1995] 3 S.C.R. 674, said this at para. 95: … Whether a doctor is trying to save a patient’s life via a blood transfusion, or is simply attempting to assist a patient to becomepregnant by AI, the physician cannot control the safety of these products beyond exhibiting the reasonable care expected of aprofessional to ensure that the biological substance is free from harmful viruses. By contrast, in the commercial world, the manufacturerhas control over the goods.

If they cannot be manufactured to be safe, then the products ought to be removed from the market. … [38] In light of this sort of consideration, it cannot be said the Respondents have no plausible cause of action in respect of the CPAsimply because the subject matter of this case is a medical device implanted by a surgeon.

The argument of McKinley and DJO in thisregard might or might not ultimately carry the day at trial but it is not strong enough to end the class proceedings at this point. [39] However, McKinley and DJO go on to say that, in any event, the Statement of Claim is not drafted so as to allow the Respondentsto even argue the hospital was a retail seller.

They contend the Statement of Claim is fatally defective in relation to the CPA because itdoes not plead, as per the definition of “retail seller” in s. 39(l), that the hospital “sells consumer products to consumers in the ordinarycourse of [its] business.” [40] In considering this submission, it is necessary to bear in mind Queen’s Bench Rule 141. It allows, but does not require, thatconclusions of law be pleaded. Rule 141 reads as follows: 141 A party may raise any point of law in his pleading.

Conclusions of law may be pleaded provided that the material facts supportingsuch conclusions are pleaded. [41] Laing J. (as he then was) described the law with respect to pleading conclusions of law in a statement of claim in Ceapro Inc. v.Saskatchewan, 2003 SKQB 221, 237 Sask. R. 94. He said this: [18] … I agree with counsel's position that the statement of claim is not very felicitously worded, and one has to really work tounderstand what is specifically being alleged in some instances.

However, there is no rule of court which states that facts alleged must beappropriately grouped and supported by an explicit conclusion of law. As noted earlier, conclusions of law may be pleaded but are notrequired. [emphasis added] The Statement of Claim in this case must be examined with these principles in mind. [42] The Statement of Claim does allege, at para. 33, that the Pain Pumps are “consumer products” within the meaning of the CPA.

But,McKinley and DJO are quite right in saying the Respondents do not expressly plead that the hospital was a “retail seller” or that it soldPain Pumps “in the ordinary course” of its business. However, given Rule 141, this omission is not necessarily fatal to the Respondents’cause of action under the CPA.

This is because assertions concerning the status of the hospital as a “retail seller”, or as to whether salesare made “in the ordinary course” of its business, are in the nature of conclusions of law and, as such, need not be pleaded expressly. [43] This is significant because the Statement of Claim does contain the following relevant allegations of fact: 9. During the term of this licence, Donjoy sold the [Pain Pump] to Canadian hospitals and health care providers, including to St.

Paul’sHospital in Saskatoon where [the Respondents] underwent shoulder or knee surgeries after which they were implanted with the [PainPump]. ... 40. The Plaintiff, Mr. Schroeder, had surgery on his right shoulder on August 26, 2004. A [Pain Pump] was used in his surgery. Mr.Schroeder purchased the [Pain Pump] from the hospital.

… 42. Mr. Schroeder had a second surgery on his right shoulder on June 2, 2005. Again, a [Pain Pump] was used in his surgery. Mr. Schroeder purchased the [Pain Pump] from the hospital. … 46. The Plaintiff, Mr. Veinot, underwent surgery on his right shoulder on January 20, 2005. A [Pain Pump] was used in his surgery. Mr. Veinot purchased the [Pain Pump] from the hospital. … 49.1 The Plaintiff, Ms. Bobyk, underwent surgery on her right knee on October 25, 2005. A [Pain Pump] was used in her surgery. Ms. Bobyk’s mother and litigation guardian, Ms.

Eleanore Smiroldo, purchased the [Pain Pump] from the hospital on her behalf. [ 44 ] In my view, although certainly no more robust or comprehensive than minimally necessary, these allegations of fact, if supported by the evidence, would allow the Respondents to argue both that the hospital is a retail seller of Pain Pumps and that the Pumps were sold in the ordinary course of the hospital’s business. This is not to say such arguments would or would not ultimately succeed or that the Respondents might not be wise to attempt to strengthen the Statement of Claim by way of amendment.

These are not the questions to be resolved at the present stage of the proceedings. The issue today is only whether the Statement of Claim discloses an “apparently authentic or genuine cause of action” or “a plausible basis in principle and presumed fact for supposing the defendants could be held liable.” In my opinion, it does. [ 45 ] In

summary, the certification judge made no reviewable bottom-line error in his handling of the arguments advanced by McKinley and DJO in relation to the connections between their potential liability as manufacturers and the existence of a sale of a consumer product by a retail seller. 3. Was There a “Sale” of a Consumer Product? [ 46 ] McKinley and DJO also argue that no manufacturer’s warranty arises under the CPA in the circumstances at hand because there was no “sale” of a consumer product. They point to ter Neuzen v.

Korn , supra and say that, in light of the principle said to be established by it, the implantation of a Pain Pump cannot be seen as a “sale.” [ 47 ] Ter Neuzen v. Korn concerned a situation where the plaintiff had been infected with HIV as the result of an artificial insemination procedure. She sued her doctor, basing her claim, among other things, on the British Columbia Sale of Goods Act . The jury held that the contract between the parties was primarily one for services, with the result that the Sale of Goods Act did not apply.

Sopinka J. upheld this view by writing as follows at para. 71: The jury correctly concluded that the contract to perform the AI procedure on the appellant was primarily a contract for medical services and not a sale of semen. To hold otherwise would be to distort the true nature of the whole agreement between the parties. The provision of the semen was obviously an important component to the AI procedure; however the primary reason the appellant went to a gynaecologist was for professional medical services and expertise.

As the respondent argues, he provided medical services to the appellant in order to assist her to become pregnant by way of AI. Although donor semen was a necessary component of this process, the contract was not primarily for a sale of semen. [ 48 ] The certification judge addressed this aspect of the Respondents’ argument by doubting the applicability of ter Neuzen v. Korn in the context of the CPA and then saying it was (in any event) a matter best left to the trial judge.

He said this: 63 In the CPA , the legislation applicable in this case, there is no requirement that the contract be primarily one for the sale of goods, rather than primarily one for services. Accordingly, the discussion about the distinction is not applicable to the present circumstances. In the case before me, it matters not whether the sale of the product was the primary purpose of the contract or merely incidental to the contract.

In any event, even if the distinction was relevant, the determination of that issue would be best left for determination by the trial judge. [ 49 ] In my view, the certification judge made no error on this point. Simply put, this issue is not so clear cut as to be treated as something making the Respondents’ claim implausible. Several points warrant mention in this regard. [ 50 ] First, the CPA contains language apparently not found in the sale of goods legislation considered in ter Neuzen v. Korn .

Specifically, s. 39(m)(iii) of the CPA says a sale includes “a transaction under which a consumer product is supplied to a consumer along with services .” This operates as an obvious basis on which the ter Neuzen line of analysis might arguably be differentiated from what is required under the CPA .

[ 51 ] Second, as the Respondents suggest, there might be a line to be drawn between biological products like blood and semen, which are arguably inherently risky, and manufactured products like Pain Pumps which are arguably not. This too might possibly be a basis for distinguishing ter Neuzen . [ 52 ] Third, because of the same public policy concerns raised by McKinley and DJO (and discussed by the Supreme Court in ter Neuzen v.

Korn ), it might be that the manufacturers of products used in medical procedures should stand on different ground than the professionals who perform such procedures. [ 53 ] In the end, the line of argument advanced by McKinley and DJO does not weigh so decisively in their favour as to create a situation where the Respondents are left with no plausible cause of action. 4. Are Pain Pumps “Consumer Products”? [ 54 ] The warranties prescribed by the CPA arise only with respect to “consumer products.” As noted above, this term is defined as follows in s. 39(e): (e) “consumer product” : (

i) means any goods ordinarily used for personal, family or household purposes and, without restricting the generality of the foregoing, includes any goods ordinarily used for personal, family or household purposes that are designed to be attached to or installed in any real or personal property, whether or not they are so attached or installed; and (ii) includes any goods bought for agricultural or fishing purposes by an individual or by a family farming corporation but does not include any implement the sale of which is governed by the provisions of The Agricultural Implements Act ; [emphasis added] [ 55 ] McKinley and DJO say the Pain Pumps are not consumer products because they are regulated and used in connection with surgical procedures.

In this regard, they cite a series of American cases including Kemp v. Pfizer , Inc. , 835 F. Supp. 1015 (E.D. Mich. 1993). That decision concerned an action brought by a widow who relied on the Magnusson-Moss Act . She alleged that her husband had died from complications associated with a defective heart valve implanted during surgery. The Magnusson-Moss Act defines “consumer product” in terms very similar to those used in the CPA but the court rejected the widow’s argument that the valve was a consumer product. McKinley and DJO also rely on Goldsmith v. Mentor Corporation , 913 F. Supp. 56 (N.H. Dist.

Ct. 1995), concerning a testicular prosthesis, and Kanter v. Warner-Lambert Company , 99 Cal. App. 4th 780 (2002) concerning over-the-counter lice treatment. [ 56 ] In my view, the certification judge quite correctly found these authorities to be of no direct assistance because they turn on a particular feature of American law not present here.

Specifically, the products in issue in the cases referred to by McKinley and DJO were found not to be consumer products because they were regulated under the Federal Food, Drug and Cosmetic Act and, as such, were expressly exempted from the scope of the Magnusson-Moss Act . The certification judge also correctly noted that the “alternative” finding reflected in an obiter dictum comment in the Goldsmith decision was not helpful because it was no more than a mere statement of conclusion. [ 57 ] McKinley and DJO go on to contend that, nonetheless, the reasoning underlying the American cases is applicable here.

They say the purpose of

Part III of the CPA is to correct the imbalance in bargaining power between manufacturers and retail sellers on one side of the scale and consumers on the other. They suggest that, in the context of devices used in connection with surgeries, there is no imbalance because the consumer has the advice and assistance of his or her physician. [ 58 ] This is an interesting argument and the trial judge will need to consider it. However, it is hardly something that can be allowed to defeat the class proceeding at this stage of the game.

As the certification judge observed, Pain Pumps, as a matter of clear first impression, are “goods ordinarily used for personal…purposes” within the ordinary meaning of the words found in the CPA definition of “consumer product.” The submissions of McKinley and DJO about how those words should be read in light of the root purposes of the CPA might or might not succeed at trial. But, they are not sufficiently commanding to lead me to conclude the Respondents have no “apparently authentic or genuine” cause of action in respect of CPA warranties. VI.

Conclusion [ 59 ] I conclude, for the reasons set out above, that this appeal must be dismissed. The certification judge made no reviewable error in concluding that the Respondents’ pleadings disclose a cause of action in relation to the alleged breach of warranties under the CPA .

[ 60 ] There will be no award as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of September, A.D. 2011. “Richards J.A.” Richards J.A. I concur “Ottenbreit J.A.” Ottenbreit J.A. I concur “Herauf J.A.” Herauf J.A.