Abbott Laboratories, Ltd. v. Abbott Laboratories, 2023 SKCA 55

Court of Appeal for Saskatchewan Citation: Abbott Laboratories, Ltd. v Spicer , 2023 SKCA 55 Date: 2023-05-10 Docket: CACV3132 Between: Abbott Laboratories, Ltd. and Abbott Laboratories Appellants (Defendants) And Glen David Spicer Respondent (Plaintiff) And Apotex Inc. Non-Party (Defendant) Docket: CACV3133 Between: Apotex Inc. Appellant (Defendant) And Glen David Spicer Respondent (Plaintiff) And Abbott Laboratories, Ltd. and Abbott Laboratories Non-Parties (Defendants) Before: Caldwell, Schwann and Drennan JJ.A. Disposition: Appeals allowed Written reasons by: The Honourable Mr.

Justice Caldwell In concurrence: The Honourable Madam Justice Schwann The Honourable Madam Justice Drennan On appeal from: 2017 SKQB 271 , Regina Appeals heard: February 10, 2023 Counsel: Katherine L. Kay and Sinziana R. Hennig for the Appellant, Apotex Inc. Caroline Zayid and Gregory Ringkamp for the Appellants, Abbott Laboratories, Ltd. and Abbott Laboratories E.F. Anthony Merchant, K.C. and Anthony Tibbs for the Respondent Caldwell J.A. I.

OVERVIEW [ 1 ] Abbott Laboratories, Ltd. and Abbott Laboratories (appellants in CACV3132 [together, Abbott]) and Apotex Inc. (appellant in CACV3133 [Apotex]) appeal from a Court of Queen’s Bench Chambers decision that dismissed their respective applications to have Glen David Spicer’s action [Action-SK] dismissed or permanently stayed under Rule 7-9(2) of The Queen’s Bench Rules and s. 29 of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 ( see Spicer v Abbott Laboratories , 2017 SKQB 271 [ Decision ] ). [ 2 ] Action-SK is the last of five proposed national class proceedings brought in Canada involving claims about the drug sibutramine.

Similar actions were pursued in Quebec [Action-QC1 and Action-QC2], Ontario [Action-ON] and British Columbia [Action- BC], but those extra-provincial proceedings have been resolved. The last of them, Action-BC, ended when the British Columbia Court of Appeal rejected its certification as a class proceeding ( Charlton v Abbott Laboratories, Ltd. , 2015 BCCA 26 , 381 DLR (4th) 575 [ Charlton CA ], reversing 2013 BCSC 1712 [ Charlton SC ]). In that appeal decision, the British Columbia court found that “There was no evidence of a

methodology for establishing that the class as a whole … was affected or put at risk by its use of sibutramine” (at para 112). Notably, Merchant Law Group acts, or at some time acted, for the plaintiffs in Action-SK, Action-QC1, Action-ON and Action-BC [together, MLG Actions] but not Action-QC2. [ 3 ] Having reviewed the MLG Actions, the Chambers judge made five key findings that “support the conclusion it would be an abuse of process for [Action-SK] to proceed to a certification application” (at para 82).

The five factors led him to remark that allowing Action-SK to proceed “could be characterized as a misuse of the court’s procedure, in a way that would be unfair to the defendants and bring the administration of justice into disrepute” (at para 82).

Notwithstanding those observations, the Chambers judge ultimately declined to exercise his discretion to dismiss Action-SK or to order a permanent stay of proceedings. [ 4 ] Relying on Toronto (City) v C.U.P.E., Local 79 , 2003 SCC 63 at paras 52–53 , [2003] 3 SCR 77 [ Toronto City ], the Chambers judge identified three “discretionary factors” as weighing against granting the relief sought by the appellants, namely: (

a) Charlton CA “was a significant development in the law” (at para 83); (

b) Action-SK was the “last surviving sibutramine class action” (at para 86); and (

c) the interests of potential class members in Action-SK “may be negatively impacted by tactical decisions taken by class action counsel” (at para 87). [ 5 ] While the appellants agree that the Chambers judge correctly concluded that proceeding to certification in Action-SK would be an abuse of process, they principally assert that he erred in law when he declined to stay its class-actions aspects because: (

a) contrary to the jurisprudence, the Decision minimises the duplicative nature of Action-SK, condones serial attempts at certification, undermines finality in class-actions litigation, and gives plaintiffs permission to repeatedly vex defendants by the same cause; (

b) there is no “change in law” exception to the application of the doctrine of abuse of process by relitigation and, even if it exists, it should be limited to changes under an unrelated, subsequent decision that arise after an appeal or attempted appeal of the initial decision and that render the law relied upon in the initial decision clearly incorrect; and (

c) in any event, Charlton CA did not change the law since a plaintiff in a prospective class action has long been required to show some basis in fact for proposed common issues regarding causation, i.e., to establish that there is a plausible methodology for proving general causation. [ 6 ] For the reasons that follow, I would allow the two appeals and set aside the Decision , and I would order a permanent stay of the class action proceedings in Action-SK as an abuse of process under Rule 7-9(2)(e). II. BACKGROUND AND CHAMBERS DECISION [ 7 ] Mr.

Spicer started Action-SK on February 4, 2011, but took no steps to advance it for close to five years. During that time, parallel proceedings were commenced, prosecuted and resolved in Quebec, Ontario and British Columbia, as follows: (

a) Quebec : On October 12, 2010, Sabrina Iacovelli applied for authorisation of a class proceeding in Action-QC1 and, contemporaneously, Brent MacMillan applied for authorisation in Action-QC2, both of which made claims regarding sibutramine. Action- QC1 was suspended in favour of Action-QC2. On August 19, 2013, after authorisation had been denied in Action-QC2 (see MacMillan c Abbott Laboratories , 2012 QCCS 1684 [ MacMillan ]), Action-QC1 was discontinued. (

b) Ontario : On October 13, 2010, Sarah Turon and Diane Williams filed a statement of claim in Action-ON. No steps were taken to advance it to certification. On August 31, 2012, after the plaintiffs had failed to file a certification record within the time required by the Court (see Turon v Abbott Laboratories Ltd. , 2011 ONSC 4343 , 340 DLR (4th) 510), the class action aspects of Action-ON were permanently stayed. (

c) British Columbia : On February 16, 2011, Terry Charlton filed a notice of civil claim in Action-BC. Although the Court in Charlton SC certified the proceeding as a national class action, that decision was overturned in Charlton CA , and no appeal was taken therefrom. [ 8 ] Having received the decision in Charlton CA , the appellants brought applications to dismiss or permanently stay Action-SK as an abuse of process.

In his joint reasons for judgment on the appellants’ applications, the Chambers judge thoroughly reviewed Rule 7-9(2) of The Queen’s Bench Rules and the jurisprudence on the doctrine of abuse of process generally and in the specific context of multi- jurisdictional class actions.

This included the decisions in Bear v Merck Frosst Canada & Co. , 2011 SKCA 152 , 345 DLR (4th) 152 [ Bear ]; BCE Inc. v Gillis , 2015 NSCA 32 at paras 63–67 , 384 DLR (4th) 111, leave to appeal to SCC refused, [2015] SCCA No 225; Turner v Bell Mobility Inc. , 2016 ABCA 21 , 394 DLR (4th) 325 ; and Hafichuk-Walkin v BCE Inc. , 2016 MBCA 32 at para 40 , 395 DLR (4th) 734 [ Hafichuk-Walkin ], leave to appeal to SCC refused, [2016] SCCA No 217.

He also referred to the three advantages of class action litigation that were identified by McLachlin C.J. in Western Canadian Shopping Centres Inc. v Dutton , 2001 SCC 46 , [2001] 2 SCR 534 [ Dutton ]. [ 9 ] After identifying the fact that Action-SK differed from other cases because it was the last sibutramine action in Canada seeking certification as a class action, the Chambers judge addressed, in a preliminary way, Mr.

Spicer’s argument that the decision in Charlton CA also distinguished the appellants’ applications for a stay or dismissal from other class-actions abuse-of-process cases: [50] A second difference between this case and Bear , Gillis , Turner and Hafichuk-Walkin is that here, the plaintiff submits that the law relating to the need to provide evidence at the certification stage of the methodology to prove general causation changed after Charlton SC was heard. On that basis, it submits that it would be unfair to strike the action. The defendants disagree. It is their position that there was no such change.

[51] The court’s reasoning in Charlton CA reflects that fact that it was arguable when Charlton SC was heard that the requirement toprovide evidence of a methodology did not apply. The appellants in Charlton CA relied on AIC Limited v Fischer, 2013 SCC 69, [2013] 3SCR 949; Sun-Rype Products Ltd. v Archer Daniels Midland Company, 2013 SCC 58, [2013] 3 SCR 545; and Pro-Sys Consultants Ltd. vMicrosoft Corporation, 2013 SCC 57, [2013] 3 SCR 477 [Microsoft], which were decided after Charlton SC.

Those decisions – theSupreme Court of Canada trilogy – addressed the requirements that must be met at the certification stage. The appellants took the positionthat the trilogy confirmed that evidence of the methodology capable of establishing general causation was required. The respondents,represented by MLG, took the position that evidence of a methodology was only required in class proceedings brought on behalf of indirectpurchasers, such as the trilogy. [52] The court dealt with the law relating to this issue at paras 84-100 of Charlton CA.

Willcock J.A. referred to Singer v Schering- Plough Canada Inc., 2010 ONSC 42 and Chadha v Bayer Inc. (2003), (ON CA), 223 DLR (4th) 158 (Ont CA)[Chadha], two prior decisions which dealt with the requirement to adduce evidence of a workable methodology, and to Andriuk v MerrillLynch Canada Inc., 2013 ABQB 422, 578 AR 40 [Andriuk] (affirmed 2014 ABCA 177, 575 AR 208).

In Andriuk, which related to financialservices and was not an indirect purchaser case, the certification judge (at para. 104) found – relying on Chadha – that the failure to provideevidence of a methodology to establish causation and class-wide damage “raised insurmountable obstacles to the certification of commonquestions of loss and causation”. The methodology requirement was affirmed on appeal (at 2014 ABCA 177).

The Alberta Court of Appealrelied (at para. 10) on Microsoft as authority for that requirement. [53] In Charlton CA, Willcock J.A. summarized his conclusions relating to Andriuk as follows: [92] There was nothing in the reasons, in relation to the certification or the appeal, to suggest that evidence of a methodology of establishingcausation ought only to be required in class proceedings brought on behalf of indirect purchasers.

I cannot accede to the respondents’argument that Andriuk was wrongly decided and that the principles described in the 2013 trilogy have no application in cases other thanclaims brought by indirect purchasers. [54] The British Columbia plaintiffs’ failure to provide some evidence of a method of establishing general causation before thecertification judge proved fatal.

In the result, the appeal was allowed and the certification order granted in Charlton SC was set aside. [10] In the next following paragraphs of the Decision, the Chambers judge set out what he understood to be the legal significance of a“change in law” to the application of the doctrine of abuse of process in the context of abusive relitigation: [55] The potential significance of a change in the law results from the fact that the court has the discretion to refuse to apply the doctrineof abuse of process to prevent re-litigation, if its application would be unfair.

As Arbour J. noted in [Toronto], referring to both issueestoppel and abuse of process: [52] …It is …apparent that, from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unlessthe circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as awhole.

There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1)when the first proceeding is tainted by fraud or dishonesty, (2) when fresh, new evidence, previously unavailable, conclusively impeachesthe original results, or (3) when fairness dictates that the original result should not be binding in the new context.

This was statedunequivocally by this Court in Danyluk, supra, at para. 80. [53] The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equallyavailable to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which thebar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness.

If, for instance, thestakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable,fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than byinsisting that finality should prevail.

An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or atainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; F.(K.), supra, at para. 55). [56] The general parameters of this discretion were also outlined by Binnie J. in Danyluk v Ainsworth Technologies Inc., 2001 SCC 44 atparas 62-67, [2001] 2 SCR 460.

As he there noted (at paras. 66-67), the list of factors for and against the exercise of this discretion is open.See also Canada (Attorney General) v Merchant Law Group LLP, 2017 SKCA 62 at paras 78-81, and 89, where the court reviews the lawrelating to this issue in the context of issue estoppel arising from a prior decision of a court. [57] Accordingly, the particular circumstances referred to by Arbour J. in the above passage – which Bauman J. noted were not presentin Samos – are not an exhaustive list.

There is, in particular, authority for the proposition that a change in the law – like the discovery ofnew evidence – can be such a discretionary factor. Laskin J.A. (as he then was) addressed this issue in Minott v O’Shanter Development Co.(1999), (ON CA), 42 OR (3d) 321 (WL) (Ont CA): 50 Issue estoppel is a rule of public policy and, as a rule of public policy, it seeks to balance the public interest in the finality of litigationwith the private interest in achieving justice between litigants. Sometimes these two interests will be in conflict, or, at least there will betension between them.

Judicial discretion is required to achieve practical justice without undermining the principles on which issue estoppelis founded. Issue estoppel should be applied flexibly where an unyielding application of it would be unfair to a party who is precluded fromrelitigating an issue. 51 That the courts have always exercised this discretion is apparent from the authorities. For example, courts have refused to apply issueestoppel in “special circumstances”, which include a change in the law or the availability of further relevant material.

If the decision of acourt on a point of law in an earlier proceeding is shown to be wrong by a later judicial decision, issue estoppel will not prevent relitigatingthat issue in subsequent proceedings… [11] However, the Chambers judge also noted that “[t]he case law reflects the fact there have been significant differences in theapproach taken by different courts to the change in law issue” (Decision at para 62, referring to Hockin v Bank of British Columbia (1995), (BC CA), 123 DLR (4th) 538 (BCCA); Oberlander v Canada (Attorney General), 2015 FC 46, [2016] 1 FCR 56,

reversed by 2016 FCA 52 , [2016] 4 FCR 55; and Sanofi-Aventis Canada Inc. v Pharmascience Inc. , 2007 FC 1057 , affirmed 2008 FCA 213 ). [ 12 ] Returning to Charlton CA , the Chambers judge acknowledged that the appellate-level decision did not constitute a change in the law, characterising it as the application of existing principles, and then asked himself whether it nonetheless constituted a “significant development in the law”: [64] In Charlton CA , on the other hand, the court did not overrule an established legal test.

Rather, it found that the requirement for some evidence of a methodology to prove general causation which had previously been applied in indirect purchaser cases – an approach which was confirmed in the trilogy – was not limited to such cases.

The court applied existing principles as it found them, distinguishing its decision in Stanway v Wyeth Canada Inc. , 2012 BCCA 260 , 351 DLR (4th) 107, which could be interpreted as having reached the opposite conclusion. [65] As defendant’s counsel correctly noted, the notion that disappointed litigants who have failed as a result of a development in the law of this kind – as opposed to a sharp or surprising turn in the law – is a slippery slope, to be approached with great care. Uncertainty as to the law, or as to its application to particular facts, is a normal part of the litigation process.

Counsel are obliged to take account of that uncertainty in designing their litigation strategy, to ensure that the litigant puts their best foot forward and clears whatever legal hurdle must be cleared. As Richards J.A. noted in Bear : [60] … a litigant is obliged to put his or her best case forward on the first go around. In general terms, the law does not allow for litigation by instalment. Thus, in Danyluk v. Ainsworth Technologies Inc. , 2001 SCC 44 , [2001] 2 S.C.R. 460 (S.C.C.), Binnie J. said this: 18 The law rightly seeks a finality to litigation.

To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. The appellant chose the ESA as her forum. She lost. An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause.

Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. [66] The fact that this is a slippery slope, however, does not mean the principle cannot apply to such a change in the law. In this case, the change in the law issue must be considered in the course of the contextual analysis. Did the requirement to provide evidence of a methodology represent a significant development in the law? If so, should MLG have known that this development was sufficiently likely to shape their litigation strategy in Charlton SC ?

Would it be unfair, in light of the answer to these questions, to apply the doctrine of abuse of process in this context? [ 13 ] Having set out his understanding of the governing law and Mr. Spicer’s arguments as to why it should be distinguished, the Chambers judge applied the doctrine of abuse of process in the circumstances of this matter. As noted, he identified five factors that he considered were supportive of a finding that Action-SK amounted to an abuse of process, namely: (

a) Action-SK is “substantially the same” as, or “similar enough” to be duplicative of, Action-QC1, Action-ON and Action-BC because it alleges the same basic facts, proposed class and causes of action, and seeks the same relief (at para 71); (

b) Action-SK is part of a “common effort, piloted by MLG, to certify sibutramine actions – including national class actions – representing class members in every province” (at para 73), recognising that class actions are often lawyer-driven and Merchant Law Group had chosen to park Action-ON and Action-SK and to pursue Action-BC; (

c) Action-SK was commenced for two improper purposes, namely: (

i) to toll limitations periods for residents of Saskatchewan and other provinces while certification was pursued in Action-BC, which was the “only justification offered by MLG for maintaining this action” (at para 75); and (ii) “to serve as an inappropriate ‘insurance policy’ against an unsuccessful outcome of the sort referred to in Hafichuck-Walkin ” and that “MLG and Mr. Spicer now ask that potential class members be permitted to collect on that insurance policy” (at para 77). (

d) Action-SK, if it proceeded, would raise a “comity issue” because it would require relitigation of issues already determined in Charlton CA and Mr. Spicer “has not identified, and I am not aware of, any material differences between this action and Charlton CA . There is no evidence of fresh, new evidence of the sort referred to in Toronto City which would impeach the validity of the decision in Charlton CA . Mr. Spicer wants a second bite at the cherry” (at para 79). (

e) Action-SK, if it proceeded, would give rise to unfairness because the appellants had defeated all other proposed class proceedings and “it is self-evident that the [appellants]–who have had to deal with actions in four provinces−have borne a heavy financial burden. They have doubtless been vexed financially.

They have also been vexed by having to deal with four actions, in four provinces, over a period in excess of five years” (at para 81). [ 14 ] The Chambers judge then weighed the three discretionary factors that he determined counterbalanced the granting of a stay or the dismissal of Action-SK, namely: (a) “The decision Charlton CA that evidence of a methodology to prove general causation was required was a significant development in the law.

The law was not clear prior to the hearing in Charlton SC in relation to claims that were not on behalf of indirect purchasers” (at para 83), and therefore it would be “unjust to grant the remedy sought” (at para 85); (b) “[T]he fact that this application has proceeded on the basis that this action is the last surviving sibutramine class action. As such, Mr. Spicer and other potential members of the class would be unable to pursue relief in a class action if I strike or stay the class action elements of this action.

They would be denied the advantages of class actions identified by Chief Justice McLachlan in Dutton , including access to justice” (at para 86); and (c) “I recognize that class actions, by their nature, require a limited number of players to make decisions on behalf of all potential

class members. The interests of potential class members or, after certification, of class members, may be negatively impacted by tacticaldecisions taken by class action counsel. I do not suggest that this fact would generally weigh heavily in a res judicata or abuse of process byre-litigation analysis. However, I agree with counsel for Mr. Spicer that it should [sic, not?] be taken into account in the circumstances ofthis case” (at para 87). [15] The Chambers judge concluded that the three discretionary factors made it unfair to dismiss or stay Action-SK despite itsabusive properties.

He ordered that Action-SK proceed to a certification hearing. [16] On January 25, 2018, Whitmore J.A. granted the appellants leave to appeal against this result (Abbott Laboratories, Ltd. v Spicer(25 January 2018) Regina, CACV3132 and CACV3133 (Sask CA)). In general terms, the appellants argue that the Chambers judge erred inprinciple when he declined to exercise his judicial discretion to stay or dismiss what they say is patently abusive relitigation by Mr. Spicer. III. RULE 59 APPLICATION TO ADDUCE EVIDENCE [17] In responding to the appeals, Mr.

Spicer applied to adduce evidence pursuant to Rule 59 of The Court of Appeal Rules. [18] In Barendregt v Grebliunas, 2022 SCC 22, 469 DLR (4th) 1, the Supreme Court revisited Palmer v The Queen, (SCC), [1980] 1 SCR 759 [Palmer], and confirmed that its oft-cited test “applies to all evidence tendered on appeal for the purpose ofreviewing the decision below” (at para 34).

In that recent Supreme Court decision, the majority rearticulated the Palmer test in this way: [29] Appellate courts have the discretion to admit additional evidence to supplement the record on appeal: Catholic Children’s AidSociety of Metropolitan Toronto v. M. (C.), (SCC), [1994] 2 S.C.R. 165, at p. 188; United States of America v. Shulman,2001 SCC 21, [2001] 1 S.C.R. 616, at para. 43. Whether in criminal or non-criminal matters (May v.

Ferndale Institution, 2005 SCC 82,[2005] 3 S.C.R. 809, at para. 107), courts have typically applied the four criteria set out by this Court in Palmer when parties seek to adduceevidence on appeal: (

i) the evidence could not, by the exercise of due diligence, have been obtained for the trial (provided that this general principle willnot be applied as strictly in a criminal case as in civil cases); (ii) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (iii) the evidence is credible in the sense that it is reasonably capable of belief; and (iv) the evidence is such that, if believed, it could have affected the result at trial. [30] Palmer applies when evidence is adduced on appeal “for the purpose of asking the court to review the proceedings in the courtbelow”: Shulman, at para. 44.

Palmer does not, however, apply to evidence going to the validity of the trial process itself (R. v. Taillefer,2003 SCC 70, [2003] 3 S.C.R. 307, at paras. 76-77), nor to evidence adduced “as a basis for requesting an original remedy in the Court ofAppeal”, such as a stay of proceedings for an abuse of process (Shulman, at paras. 44-46). [31] The Palmer test is purposive, fact-specific, and driven by an overarching concern for the interests of justice.

It ensures that theadmission of additional evidence on appeal will be rare, such that the matters in issue between the parties should “narrow rather thanexpand as [a] case proceeds up the appellate ladder”: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2,[2000] 1 S.C.R. 44, at para. 10. [19] In this case, Mr.

Spicer proffers the affidavit of Lenitta Covill, sworn December 7, 2022, to which Charlton SC and Charlton CAare exhibited along with a copy of the joint brief of law the appellants had filed with the Chambers judge and a copy of correspondencedated March 7, 2014, from counsel for Apotex to the Registrar of the British Columbia Court of Appeal requesting a five-member panel tohear the appeal against the decision in Charlton SC. [20] While a judgment can be considered as proof of fact in some circumstances (see, e.g., Continental Casualty Co. v Yorke, (SCC), [1930] SCR 180 at 185–186), the decisions in Charlton SC and Charlton CA are not evidence to which Rule 59 of TheCourt of Appeal Rules or the test in Palmer applies.

Although he did not provide citations for the British Columbia decisions or list themunder

Part IV of his factum (see Rule 28(2)), Mr. Spicer nonetheless referred to those judgments throughout his factum. Furthermore, thedecisions in Charlton SC and Charlton CA were plainly before the Chambers judge and lay at the root of the appellants’ grounds of appealfrom his Decision. Moreover, they are appended to the Book of Authorities filed by Abbott in this Court.

In short, the two exhibitedjudgments are not evidence and there is no reason to admit them as such in these appeals. [21] I reach the same conclusion with respect to the appellants’ brief of law—i.e., it is not evidence to which R v Palmer applies andthere is no reason to admit it into evidence.

The appellants have not asked this Court to review the validity of the proceedings before theChambers judge or for original relief in this Court and, even if an issue arose in either of those respects, the brief of law is available fromthe Court of Queen’s Bench file. [22] The remaining exhibit does not satisfy the Palmer test. Mr. Spicer or his counsel had possession of the correspondence fromApotex’s counsel prior to the hearing in front of the Chambers judge and, therefore, it could have been adduced in that forum.

Further, I amnot satisfied that it is relevant, i.e., it does not bear upon a decisive or potentially decisive issue in these appeals. While I have no doubt thatit is credible in the sense that it is what Mr. Spicer says it is, I am not persuaded that the correspondence could have affected the result inthe Decision. [23] I would dismiss Mr. Spicer’s application to adduce evidence, without making an order for costs. IV. ANALYSIS

[ 24 ] Since a decision not to grant relief under Rule 7-9(2) of The Queen’s Bench Rules is discretionary in nature, this Court asks itself, in an appeal from such a decision, whether the judge erred when identifying the governing principles or in the application of those principles, misapprehended or disregarded material evidence, or failed to act judicially, affording deference to the resulting decision where the judge’s exercise of discretion falls within these bounds (see Kot v Kot , 2021 SKCA 4 at paras 15–20 ; Huerto v Salte , 2015 SKCA 21 at para 3 , 457 Sask R 14; and Rimmer v Adshead , 2002 SKCA 12 at para 58 , [2002] 4 WWR 119). [ 25 ] In his reasons for granting leave to appeal, Whitmore J.A. characterised the appellants’ respective grounds of appeal as “essentially similar” (at para 5).

Paraphrasing those common grounds, the issues in the appeals allege errors in principle or in the application of legal principles to the facts, which respectively engage the appellate standards of correctness and, absent an extricable question of law, palpable and overriding error. A.

Did the Chambers judge err in his overall approach under Rule 7-9(2)? [ 26 ] The appellants submit that the Chambers judge correctly concluded that it would be an abuse of process if Action-SK were allowed to proceed to a certification hearing when he wrote: [82] These [five] factors support the conclusion it would be an abuse of process for this action to proceed to a certification application.

Such an application, considered in light of these factors, could be characterized as a misuse of the court’s procedure, in a way that would be unfair to the defendants and bring the administration of justice into disrepute. That being so, I must consider whether there are discretionary factors of the sort referred to in Toronto City which would make it unfair or unjust to grant the remedy sought. In doing so, I must keep in mind that – as Richards J.A. affirmed in Bear – “the need to maintain the integrity of the adjudicative process sits at the heart of the concept of abuse of process”.

The appellants argue that the Chambers judge erred in principle when he declined to grant the relief they sought in remedy of the abuse of process that he had found. [ 27 ] I agree that the five factors identified by the Chambers judge “support the conclusion” that Action-SK is an abuse of process and that allowing it to proceed “could be characterized as a misuse of the court’s procedure, in a way that would be unfair to the defendants and bring the administration of justice into disrepute”.

The Chambers judge made those remarks in the midst of his analysis, having only assessed factors that supported a finding of abuse. Thereafter, he considered three “discretionary factors” that he saw as weighing against the granting of relief in remedy of the abuse of process that was apparent to him.

However, I do not understand the Chambers judge to have approached the issue in an unprincipled way or in a way that deviates from the doctrine of abuse of process as it has been interpreted by this Court. [ 28 ] In Boehringer Ingelheim (Canada) Ltd. v Englund , 2007 SKCA 62 at para 40 , 284 DLR (4th) 94 [ Englund ], after setting out the plaintiffs’ acknowledgement that “there had never been any intention to actively pursue a claim in Ontario”, Richards J.A. (as he then was) reached a preliminary conclusion about whether there was an abuse of process.

He wrote that the plaintiffs’ activities in the Saskatchewan action “appear to fall solidly within the reach of the doctrine of abuse of process” (at para 41). Justice Richards then said that, given the Court’s general view of the action as an abuse of process, “we must look to the various considerations and arguments which might qualify or undercut that conclusion and indicate there is no abuse of process involved in the circumstances of this appeal” (at para 42).

As I see it, this is precisely the approach that the Chambers judge followed in the Decision . [ 29 ] It is true, as the appellants point out, that some courts have held that commencing parallel class actions in multiple jurisdictions is an abuse of process if the proceedings are duplicative and lack a legitimate purpose (e.g., see Kowalyshyn v Valeant , 2016 ONSC 3819 at para 263 ; and Hafichuk-Walkin at para 40 ).

In the Decision , the Chambers judge said that the issue before him was not whether parallel class proceedings or serial certification applications are always an abuse of process, calling that argument a “straw man” (at para 70).

Rather, he stated that the issue before him was whether an application to certify Action-SK would constitute an abuse of process “given what has occurred” (at para 70). [ 30 ] In Bear , which dealt with serial attempts to certify a national class proceeding against a drug manufacturer, Richards J.A. (as he then was) wrote: [42] I propose to examine these matters in turn but it might be useful, at the outset, to offer a brief

summary of the field of play. In my view, in its essence, this appeal involves a situation where MLG, acting on behalf of Mr. Wuttunee and then Messrs. Choquette and Derusha, deliberately pursued a very ambitious and imprecisely framed agenda in attempting to certify a class action against Merck. Most significantly for present purposes, it pursued relief in relation to a broad and vaguely described range of medical and health issues said to have been caused by Vioxx.

It was, of course, open to the plaintiffs and MLG, at any time during the Wuttunee proceedings, to scale back the claim to something more clear, focused and manageable. This was not done. Then, in the immediate wake of the decision denying certification in Wuttunee , but this time acting for Messrs. Bear, Gurnsey and Rybchinski, MLG launched reconstituted and avowedly narrower proceedings against Merck. These new proceedings were said to reflect the lessons of Wuttunee . [43] On any practical view of these facts—a view sensitive to the overall realities of class action litigation—it cannot be thought that Mr.

Wuttunee or Messrs. Choquette and Derusha (in the first instance) and Messrs. Bear, Gurnsey and Rybchinski (in the second) were independent plaintiffs acting at arm’s length from one another. Rather, in substance, the Bear and Rybchinski Actions amount to an attempt, coordinated by MLG, to litigate a class action against Merck by way of instalment. When Plan A failed, Plan B was launched.

This, in my assessment, was an abuse of process. [ 31 ] After reviewing the jurisprudence, Richards J.A. explained this Court’s reasoning on the issue of commencing parallel class actions in multiple jurisdictions as it arose in the circumstances of Bear : [74] The lesson to be drawn from these authorities is that it is sometimes necessary and appropriate to look below the surface of class action proceedings in order to preserve the integrity of the administration of justice. In this regard, it is clear that class action litigation has some unique features.

Because there are a number of individuals with the same claim, it is possible to imagine a situation where a certification application is made and dismissed, another class member then steps forward as the proposed representative plaintiff with a

refined certification application in hand only to have it dismissed, a third class member then steps forward with yet another approach to certification, and so on and so on. This would obviously be undesirable on a number of levels, especially those concerning the need for finality in litigation and the efficient use of the judicial system. This is so regardless of whether a putative member of a proposed class can, in some formal way, be considered to be a privy of the representative plaintiff who brings an unsuccessful certification application.

Simply put, a defendant in a class action environment should not face a revolving door of representative plaintiffs who serially advance certification application after certification application until they (perhaps) find one that succeeds. [75] None of this is to say that, for each potential class action, there can or should be only one attempt at certification. Much, of course, will turn on the facts of individual situations and, obviously, there are examples of circumstances where more than one certification effort has been entertained. Nonetheless, courts need to be alert to the potential for abuse.

In my view, concerns in this regard are substantially heightened when the same law firm acts in successive certification efforts.

The door to abuse can be opened by the ongoing involvement of one lawyer or one firm when this fact is combined with the reality that new representative plaintiffs can be drawn from the pool of persons in the class previously proposed in an unsuccessful certification application. [ 32 ] In terms of approach, Englund and Bear are consistent in that, having reviewed factors relevant to the plaintiffs’ actions, which confirmed that the actions were abuses of process, this Court looked to “the various considerations and arguments which might qualify or undercut that conclusion and indicate there is no abuse of process involved in the circumstances of this appeal” ( Englund at para 42 ).

In each case, the situation “below the surface” of the class action proceedings assisted the Court by informing the justness of granting the relief sought by the applicants under Rule 7-9(2). [ 33 ] I infer from the progression of the Chambers judge’s analysis in the Decision that he concluded that, notwithstanding that Action-SK was an abuse of process, it would be “unfair and unjust to grant the remedy sought” by the appellants ( Toronto City at 82).

I am not, however, persuaded by the appellants arguments that he erred in principle in that part of his approach to the Rule 7-9(2) applications. [ 34 ] Throughout his reasons, the Chambers judge was alert to the potential for abuse. As noted, he identified five factors that supported a finding of abuse of process and then determined that it would be an abuse of process to allow Action-SK to proceed to a certification hearing. He stated that allowing that to occur could be characterised as a misuse of the court’s procedure. He said it would be unfair to the appellants.

He recognised that it could bring the administration of justice into disrepute. None of those findings or remarks are challenged in these appeals.

Following Englund and Bear , the Chambers judge then identified three “discretionary factors of the sort referred to in Toronto City which would make it unfair or unjust to grant the remedy sought” (at para 82), but it was not an error of principle “to look below the surface of class action proceedings in order to preserve the integrity of the administration of justice” ( Bear at para 74 ). [ 35 ] In short, I find no error in principle in terms of the Chambers judge’s overall approach to the decision he was required to make under Rule 7-9(2) in the context of serial attempts to certify a national class proceeding.

B. Did the Chambers judge err when taking account of the discretionary factors he identified? [ 36 ] The specific question in the appeals is whether the Chambers judge erred when he took account of the three discretionary factors he had identified: (1) a change in law; (2) the last surviving action; and (3) the role of counsel. 1. A change in law [ 37 ] The appellants submit that the Chambers judge erred by holding that Charlton CA represented a “change in law” that could serve as a discretionary factor making it unfair or unjust to stay Action-SK.

They come at this issue from two angles: first, they dispute whether there is a change in law exception to the application of the doctrine of abuse of process; and second, they argue that Charlton CA did not change the law, noting that even the Chambers judge described it only as a “significant development in the law” (at para 83). [ 38 ] Although Apotex does not place much emphasis on this submission, it notes in its factum that this “purported discretionary factor was raised only briefly in oral argument, the Chambers Judge did not have the benefit of submissions from the [appellants] or of relevant authorities on these points”. a.

Is a change in law a discretionary factor? [ 39 ] It is helpful, in addressing the remaining issues in these appeals, to understand that res judicata (i.e., issue estoppel and cause of action estoppel), collateral attack and abuse of process are all “doctrines used by the common law as vehicles to transport and deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness” ( British Columbia (Workers’ Compensation Board) v Figliola , 2011 SCC 52 at para 25 , [2011] 3 SCR 422 [ Figliola ]; see also Toronto City at paras 52–53 ).

After considering these doctrines for the majority in Figliola , Abella J. identified their common principles, which she said “exist to prevent unfairness by preventing ‘abuse of the decision-making process’”, quoting from Danyluk v Ainsworth Technologies Inc. , 2001 SCC 44 at para 20 , [2001] 2 SCR 460 [ Danyluk ].

The common principles include ( Figliola at para 34 ): • It is in the interests of the public and the parties that the finality of a decision can be relied on ( Danyluk , at para. 18 ; Boucher , at para. 35). • Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings ( Toronto (City) , at paras. 38 and 51). • The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature ( Boucher , at para. 35; Danyluk , at para. 74 ).

• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrativedecision (TeleZone, at para. 61; Boucher, at para. 35; Garland, at para. 72). • Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51). [40] In their arguments, the appellants observe that some courts have questioned the “extent to which a change in the law is a factorthat would even, in principle, warrant a court not to apply” one or more of the related doctrines (Guardian Insurance Company of Canada vRoman Catholic Episcopal Corp. of St.

John’s, 2013 NLCA 62 at para 81, 343 Nfld & PEIR 68, leave to appeal refused, [2014] SCCA No3; see also Apotex Inc. v Merck and Co., 2002 FCA 210 at para 35, [2003] 1 FC 242, leave to appeal refused, [2002] SCCA 323). However,I do not share that view of the Supreme Court’s jurisprudence on the subject. [41] As noted, drawing from the Supreme Court decision in Toronto City, the Chambers judge referred to a change in law as a“discretionary factor”.

The reasoning behind that description is explained in Danyluk, where, after concluding that the preconditions to issueestoppel had been met in the circumstances of that case, Binnie J., for a unanimous Court, wrote: [62] The appellant submitted that the Court should nevertheless refuse to apply estoppel as a matter of discretion. There is no doubt thatsuch a discretion exists. In General Motors of Canada Ltd. v. Naken, (SCC), [1983] 1 S.C.R. 72, Estey J. noted, at p. 101,that in the context of court proceedings “such a discretion must be very limited in application”.

In my view the discretion is necessarilybroader in relation to the prior decisions of administrative tribunals because of the enormous range and diversity of the structures, mandatesand procedures of administrative decision makers. [63] In Bugbusters, supra, Finch J.A. (now C.J.B.C.) observed, at para. 32: It must always be remembered that although the three requirements for issue estoppel must be satisfied before it can apply, the fact thatthey may be satisfied does not automatically give rise to its application. Issue estoppel … as can be seen from the cases, is closely related toabuse of process.

The doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably callsupon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case. Apart from noting parentheticallythat estoppel per rem judicatem is generally considered a common law doctrine (unlike promissory estoppel which is clearly equitable inorigin), I think this is a correct statement of the law.

Finch J.A.’s dictum was adopted and applied by the Ontario Court of Appeal inSchweneke, supra, at paras. 38 and 43: The discretion to refuse to give effect to issue estoppel becomes relevant only where the three prerequisites to the operation of the doctrineexist... The exercise of the discretion is necessarily case specific and depends on the entirety of the circumstances.

In exercising thediscretion the court must ask – is there something in the circumstances of this case such that the usual operation of the doctrine of issueestoppel would work an injustice? … ...The discretion must respond to the realities of each case and not to abstract concerns that arise in virtually every case where the findingrelied on to support the doctrine was made by a tribunal and not a court. (Emphasis added) [42] Differing from the instant appeals, the Supreme Court in Danyluk was asked the contrary question of whether a failure toconsider a discretionary factor amounted to an error of principle.

In answering that question, Binnie J. ruled: [66] In my view it was an error of principle not to address the factors for and against the exercise of the discretion which the courtclearly possessed. This is not a situation where this Court is being asked by an appellant to substitute its opinion for that of the motionsjudge or the Court of Appeal. The appellant is entitled at some stage to appropriate consideration of the discretionary factors and to date thishas not happened. [67] The list of factors is open.

They include many of the same factors listed in Maybrun in connection with the rule against collateralattack. A similarly helpful list was proposed by Laskin J.A. in Minott, supra. The objective is to ensure that the operation of issue estoppelpromotes the orderly administration of justice but not at the cost of real injustice in the particular case.

Seven factors, discussed below, arerelevant in this case. [43] In short, Binnie J. recognised in Danlyuk the existence of judicial discretion not to apply the doctrine of issue estoppel, identifieda few points of reference for relevant factors but placed no limits on what a judge may consider in the exercise of that discretion—i.e., the“list of factors is open” (at para 67).

More directly, and consistent with the approach in Englund and Bear, Binnie J. concluded hisreasoning in this way under the rubric of “The Potential Injustice”: [80] As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances,consider whether application of issue estoppel in the particular case would work an injustice. Rosenberg J.A. concluded that the appellanthad received neither notice of the respondent’s allegation nor an opportunity to respond. He was thus confronted with the problem identifiedby Jackson J.A., dissenting, in Iron v.

Saskatchewan (Minister of the Environment & Public Safety), (SK CA), [1993] 6W.W.R. 1 (Sask.

C.A.), at p. 21: The doctrine of res judicata, being a means of doing justice between the parties in the context of the adversarial system, carries within itstenets the seeds of injustice, particularly in relation to issues of allowing parties to be heard. (Emphasis added) [44] Writing for the majority in Toronto City on the doctrine of abuse of process by relitigation, Arbour J. approached theidentification of discretionary factors in a similarly open-ended way, writing: [51] Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the

adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses.

Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. [52] In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result.

It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole.

There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context.

This was stated unequivocally by this Court in Danyluk , supra , at para. 80 . [53] The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness.

If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail.

An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision ( Danyluk , supra , at para. 51 ; Franco , supra , at para. 55). (Emphasis added) [ 45 ] As I interpret the guiding jurisprudence, whether something is a factor that could affect the fairness or justness of the application of the doctrine of abuse of process will depend on the entirety of the circumstances of the case.

In the context of the appeals at hand, the Chambers judge identified Charlton CA as being a relevant factor because it could work an injustice if that decision were to stand in the way of Mr.

Spicer proceeding with Action-SK, since he would thereby be forestalled from addressing how it affected certification of his claims. [ 46 ] On this basis, I am not persuaded that the Chambers judge erred in principle by identifying the decision in Charlton CA as a factor that was potentially relevant to the exercise of judicial discretion under the doctrine of abuse of process by relitigation in the circumstances of Action-SK. b.

Did Charlton CA change the law? [ 47 ] While it was not an error in principle to consider whether Charlton CA could affect the application of the doctrine of abuse of process in the context of this case, I accept the appellants’ argument that the Chambers judge misinterpreted or misapprehended that decision, giving his

interpretation of it great weight when exercising his discretion not to grant the relief they had requested. [ 48 ] When discussing the doctrine of abuse of process in Toronto City , Arbour J. observed that if the result in a subsequent proceeding is different from that reached in an earlier proceeding on the very same issue, “the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality” (at para 51).

She then described instances where “relitigation will enhance, rather than impeach, the integrity of the judicial system” (at para 52). One such instance identified was previously unavailable new evidence that “ conclusively impeaches the original result” (at para 52; emphasis added), which the Chambers judge found was absent in this case ( Decision at para 79). In procedural terms, Arbour J. also spoke about a “ tainted original process” as having the potential to “overcome the interest in maintaining the finality of the original decision” (at para 53; emphasis added).

While she did not identify a “change in law” as a discretionary factor, Arbour J.’s reasoning reveals that, to overcome the interests of finality, the unfairness wrought by a change in law must be foundational, fundamental, or something that disturbs the groundwork of established legal principles. Anything less would not strike at the integrity of the judicial system. [ 49 ] Turning to the decision at hand, recall that the germane ratio in Charlton CA is that the plaintiff had failed to satisfy the requirement of establishing that there was some basis in fact for a methodology to prove general causation.

The Chambers judge in this case said that the law imposing the plausible-methodology aspect of that requirement on prospective representative plaintiffs was “not clear prior to the hearing in Charlton SC in relation to claims that were not on behalf of indirect purchasers” (at para 83). With respect, that is an overly generous

interpretation of the state of the law at the time of Charlton SC and of the decision in Charlton CA . [ 50 ] The requirement to show some proof of a methodology for establishing causation predates Charlton SC and it applies to all prospective representative plaintiffs. In general terms, the requirement is mandated under the certification criteria found in provincial class- proceedings statutes as interpreted by the Supreme Court in Hollick v Toronto (City) , 2001 SCC 68 at para 25 , [2001] 3 SCR 158 [ Hollick ]. [ 51 ] Charlton SC and Charlton CA are British Columbia cases.

The Class Proceedings Act , RSBC 1996, c 50 [ BC Act ], which was in force at the time of the certification application in Charlton SC , stated: 4(1) The court must certify a proceeding as a class proceeding … if all of the following requirements are met: (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class of 2 or more persons; (

c) the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members;

(

d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues; (

e) there is a representative plaintiff who (

i) would fairly and adequately represent the interests of the class, (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and ofnotifying class members of the proceeding, and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members.

Similar or nearly identical language is found in The Class Actions Act, SS 2001, c C-12.01, s 6(1), and other provincial class proceedingslegislation, such as the Class Proceedings Act, 1992, SO 1992, c 6, s 5 [Ontario Act], for example. [52] In Hollick, the Supreme Court interpreted the Ontario equivalent of the certification requirements as imposing an evidentiary andpersuasive burden on representative plaintiffs to establish that there is “some basis in fact” to support the granting of a certification order: [25] I agree that the representative of the asserted class must show some basis in fact to support the certification order.

As the court in[Taub v Manufacturers Life Insurance Co. (1998), (ON SC), 40 OR (3d) 379 (Gen. Div.)] held, that is not to say thatthere must be affidavits from members of the class or that there should be any assessment of the merits of the claims of other classmembers. However, the Report of the Attorney General’s Advisory Committee on Class Action Reform clearly contemplates that the classrepresentative will have to establish an evidentiary basis for certification: see Report, at p. 31 (“evidence on the motion for certificationshould be confined to the [certification] criteria”).

The [Class Proceedings Act, 1992, SO 1992, c 6], too, obviously contemplates the samething: see s. 5(4) (“[t]he court may adjourn the motion for certification to permit the parties to amend their materials or pleadings or topermit further evidence”). In my view, the class representative must show some basis in fact for each of the certification requirements setout in s. 5 of the Act, other than the requirement that the pleadings disclose a cause of action.

That latter requirement is of course governedby the rule that a pleading should not be struck for failure to disclose a cause of action unless it is “plain and obvious” that no claim exists:see Branch, supra, at para. 4.60. (Emphasis added) [53] The some-basis-in-fact requirement pronounced in Hollick arose from the Supreme Court’s consideration in that case of theextent to which prospective representative plaintiffs “should be allowed or required to introduce evidence in support of a certificationmotion” (at para 22).

When expressing the unanimous conclusion of the Court, McLachlin C.J. wrote: “In my view, the class representativemust show some basis in fact for each of the certification requirements set out in s. 5 of [the Ontario Act], other than the requirement thatthe pleadings disclose a cause of action” (at para 25; emphasis added). One such requirement is, as noted, that the prospectiverepresentative plaintiff “has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf ofthe class” (BC Act, s. 4(ii)).

In Saskatchewan, our Act requires “a plan for the class action that sets out a workable method of advancing theaction on behalf of the class” (s. 6(1)(e)(ii)). [54] The Supreme Court in Pro-Sys Consultants Ltd. v Microsoft Corporation, 2013 SCC 57, [2013] 3 SCR 477 [Pro-Sys], which isan indirect purchaser case, addressed the requirement for proof of a causation methodology in specific terms, holding that: [115] The role of the expert methodology is to establish that the overcharge was passed on to the indirect purchasers, making the issuecommon to the class as a whole (see Chadha, at para. 31).

The requirement at the certification stage is not that the methodology quantifythe damages in question; rather, the critical element that the methodology must establish is the ability to prove “common impact”, asdescribed in the U.S. antitrust case of In Re: Linerboard Antitrust Litigation, 305 F.3d 145 (3rd Cir. 2002). That is, plaintiffs mustdemonstrate that “sufficient proof [is] available, for use at trial, to prove antitrust impact common to all the members of the class” (ibid., atp. 155).

It is not necessary at the certification stage that the methodology establish the actual loss to the class, as long as the plaintiff hasdemonstrated that there is a methodology capable of doing so. In indirect purchaser actions, this means that the methodology must be able toestablish that the overcharges have been passed on to the indirect-purchaser level in the distribution chain.

See also AIC Limited v Fischer, 2013 SCC 69 at para 43, [2013] 3 SCR 949; and Sun-Rype Products Ltd. v Archer Daniels MidlandCompany, 2013 SCC 58, [2013] 3 SCR 545 [together with Pro-Sys, the 2013 Trilogy]. [55] Notably, the class actions at issue in the 2013 Trilogy all involved indirect purchasers. Chadha v Bayer Inc. (2003), (ON CA), 63 OR (3d) 22 (CA) [Chadha], leave to appeal refused, [2003] 2 SCR vi, which is referred to in Pro-Sys, is also anindirect-purchaser case.

One issue in the appeals before this Court is whether it was clear at the time of Charlton SC that the requirement toshow that there was some method of proving causation applied in certification applications involving other than indirect purchasers.

Thisquestion was also addressed in Charlton CA. [56] Speaking to the evidentiary burden of proving that there is some basis in fact for a methodology of establishing causation, theCourt in Charlton CA wrote: [84] Where the applicants seek to address questions of causation on a class-wide basis and where causation is said to give rise to thecommonality of interests, there must be some evidence of a methodology that will enable them to prove causation on a class-wide basis.While that rule is most clearly evident in cases brought by indirect purchasers, such as the claims considered in the 2013 Supreme Courttrilogy, there is in my view no basis in principle to distinguish such claims insofar as this requirement is concerned.

The evidence at thecertification hearing must support the conclusion that certification of the common issue will advance the claim as pleaded. Where theproposed common issue is causation, there must be some evidence that issue may be resolved on a class-wide basis. Seeking evidence of amethodology of addressing causation for the class serves the objective of class proceedings and the Act must be applied with a purposiveapproach. (Emphasis added) [57] The Court in Charlton CA went on to review several decisions, all of which pre-date Charlton SC, where courts had either

identified the requirement or had mandated some proof of a methodology for certification purposes, including Chadha ; Singer v Schering- Plough Canada Inc. , 2010 ONSC 42 , 87 CPC (6th) 276; and Andriuk v Merrill Lynch Canada Inc. , 2013 ABQB 422 at paras 104 and 132 , 578 AR 40, aff’d 2014 ABCA 177 at para 11 , 575 AR 208 [ Andriuk ]. [ 58 ] The Court also referred to its earlier decision in Stanway v Wyeth Canada Inc. , 2012 BCCA 260 , 351 DLR (4th) 107, where a class action was certified with some proof that the proposed class might be able to establish general causation based on risk factors, even though class members faced “formidable challenges” in proving individual causation ( Charlton CA at para 96 ).

It went on to note that the appellant drug manufacturer had not appealed the certification order on the basis that there was “no method of effectively answering the general causation question” ( Charlton CA at para 97 ); the appellant had argued that answering that question would not assist with proving specific causation—and it was this argument that the Court in Stanway had rejected.

Marking the focus of its analysis in Charlton CA , the Court concluded its discussion of Stanway by stating: “In the case before us, the question is whether it can be said there was some evidence of a method of establishing general causation before the certification judge” (at para 97). [ 59 ] Lastly, although it did not place much weight on the denial of authorisation in Action-QC2, the Court in Charlton CA noted that the Québec Court in MacMillan had dismissed the application because the plaintiff had failed to provide sufficient proof to support the finding that “the facts alleged seem to justify the conclusions sought”.

Notably, in MacMillan , Roy J.C.S. directed his findings at the lack of proof of a methodology, writing: [111] Mr.

MacMillan does not provide any study, expert opinion or other documentation that allows a hypothesis to be transformed into “facts that appear to justify the conclusions sought”, and this, especially in the particular context where obesity itself, without medication, is a risk factor for these events. [ 60 ] After addressing the preferability of class proceedings, which was also at issue, the Court in Charlton CA considered whether the requirement for some basis in fact on the question of general causation had been met, writing: [110] The trial judge certified the case on two footings: as a class action brought by those who have suffered injury to recover damages, and as a class action brought by patients prescribed a drug that ought not to have been marketed.

The claims of those who have suffered cardiac events are grounded in negligence and require proof of damages and causation. Such claims will be advanced by a finding of general causation. The claim advanced on behalf of users who have not suffered harm appears to be grounded upon the argument alluded to in the New England Journal of Medicine editorial: that relative ineffectiveness coupled with some risk ought to have kept sibutramine off the market as a weight loss drug.

Like the claim brought by those who claim to have suffered injury, it must be founded upon some proof of a risk to the population of patients for whom sibutramine was prescribed. The plaintiffs’ own evidence at the certification hearing included evidence that sibutramine has some effect in inducing weight-loss.

The successful prosecution of the class action in relation to the marketing of a drug with a poor risk-to-benefit ratio also hinges upon the evidence that those who ought to have been prescribed the drug were put at risk by its use. [111] The question that ought to have been asked at the certification hearing in relation to both types of claims, is not whether the resolution of the general causation question will advance the class claims, but rather, whether there is a reasonable prospect of doing so. [112] The evidence before the certification judge was that the question whether sibutramine causes or contributes to heart attacks, strokes, and arrhythmia on a class-wide basis is incapable of resolution.

There was no evidence of a methodology for establishing that the class as a whole, as opposed to those who were wrongly prescribed sibutramine despite a history of disease, was affected or put at risk by its use of sibutramine. The appellants say the trial judge did not properly exercise his gatekeeping function; he is said to have erred by failing to consider whether the class had adduced some evidence of a method of proving the claim. I agree with that submission. [113] This cannot be said to be a case like Stanway , where the increased risk of a certain result to the class as a whole can be quantified.

While there is no dispute that those with pre-existing cardiopulmonary disease are at a statistically increased risk of adverse cardiac events, this is not a case where the experts disagree on the extent of the risk, but rather, a case where the experts are uncertain whether there is a risk to the class as a whole and cannot describe a methodology for addressing that question .

Further, there is no reason to believe that the certification of the question whether sibutramine posed a risk to those with pre-existing undiagnosed cardiac disease, an undefined segment of the class, will move the litigation forward. (Emphasis added) [ 61 ] Respectfully, it was an error for the Chambers judge to conclude that Charlton CA represented “a significant development in the law” (at para 83).

First and foremost, the British Columbia Court of Appeal itself reviewed the relevant law and recognised that it was clear that there had to be “some evidence of a method of establishing general causation” before Action-BC could be certified. [ 62 ] The British Columbia Court of Appeal found that there was “no evidence of a methodology for establishing that the class as a whole, as opposed to those who were wrongly prescribed sibutramine despite a history of disease, was affected or put at risk by its use of sibutramine” and, on a class-wide basis, that question was “incapable of resolution” (at para 112) .

This finding of fact was based on the evidence of the prospective representative plaintiff’s own expert and it distinguished Action-BC from Stanway .

It also eliminated any reason for the Court to remit the certification application for a rehearing on different or better evidence because there was none to be had. [ 63 ] Relatedly, one of the prospective representative plaintiff’s arguments in Charlton CA , which the Court rejected, was that jurisprudence like Andruik , where courts had applied the methodology requirement in cases other than those involving indirect purchasers, was wrongly decided: [92] There was nothing in the reasons, in relation to the certification or the appeal, to suggest that evidence of a methodology of establishing causation ought only to be required in class proceedings brought on behalf of indirect purchasers.

I cannot accede to the respondents’ argument that Andriuk was wrongly decided and that the principles described in the 2013 trilogy have no application in cases other than claims brought by indirect purchasers. [ 64 ] In addition, in stating that the law was “not clear” prior to Charlton CA , the Chambers judge relied only on a statement taken out of context from Miller v Merck Frosst Canada Ltd. , 2015 BCCA 353 , 81 BCLR (5th) 33 [ Miller ]. In the Decision , the Chambers judge

wrote: [83] In my view, there is such a discretionary factor. The decision Charlton CA that evidence of a methodology to prove generalcausation was required was a significant development in the law. The law was not clear prior to the hearing in Charlton SC in relation toclaims that were not on behalf of indirect purchasers. [84] I note, for example, the discussion of this issue by Punnett J. in Miller v Merck Frosst Canada Ltd, 2013 BCSC 544 at paras 163-166.

I also note the following comment by Savage J.A. on the appeal of that decision which expressly confirms that uncertainty (at 2015BCCA 353, 81 BCLR (5th) 33referring to [Pro-Sys]): [27] Before [Pro-Sys], there was uncertainty over whether plaintiffs needed to establish a methodology for proving a common issue, orsimply to meet the “some basis in fact” threshold.

That question was answered in [Pro-Sys]: for a claim to be certified, there must be a“methodology” through which the common issue may plausibly be proven at trial. [85] The development in the law on this point – considered in context and in light of the particular characteristics of a certificationapplication noted above – was a sufficient change to constitute a discretionary factor of the sort referred to in Toronto City, that it would beunjust to grant the remedy sought.

I note that the defendants did not suggest that MLG should have shaped their litigation strategy inCharlton SC in anticipation of this potential development. In my view, Mr. Spicer cannot be faulted for failing to adduce evidence of amethodology in Charlton SC. [65] The issue in Miller was not whether there was a requirement to prove causation — it was what degree of proof was required toestablish a methodology for proving causation.

In the paragraphs immediately following the excerpt quoted by the Chambers judge, SavageJ.A. wrote: [28] In [Pro-Sys], the representative plaintiffs brought an action against Microsoft alleging that the defendant had engaged in systematicovercharging. Although the chambers judge certified common issues, this court set aside the decision on appeal.

At the Supreme Court ofCanada, in reinstating the decision of the chambers judge, the Court revisited the methodology requirement. [29] The Court held that while there was no requirement at the certification stage for rigorous assessment of conflicting expert evidence,the plaintiffs were required to present some type of actual, rather than theoretical, method for establishing loss on a class-wide basis: [116] The most contentious question involving the use of expert evidence is how strong the evidence must be at the certification stage tosatisfy the court that there is a method by which impact can be proved on a class-wide basis.

The B.C.C.A. in Infineon called for theplaintiff to show “only a credible or plausible methodology” and held that “[i]t was common ground that statistical regression analysis is intheory capable of providing reasonable estimates of gain or aggregate harm and the extent of pass-through in price-fixing cases” (para. 68).This was the standard adopted by Myers J. in the present case.

Under this standard, he found the plaintiffs’ methodologies to be adequate tosatisfy the commonality requirement. … [118] In my view, the expert methodology must be sufficiently credible or plausible to establish some basis in fact for the commonalityrequirement. This means that the methodology must offer a realistic prospect of establishing loss on a class-wide basis so that, if theovercharge is eventually established at the trial of the common issues, there is a means by which to demonstrate that it is common to theclass (i.e. that passing on has occurred).

The methodology cannot be purely theoretical or hypothetical, but must be grounded in the facts ofthe particular case in question. There must be some evidence of the availability of the data to which the methodology is to be applied. [30] Following [Pro-Sys], the requirement for a workable methodology was applied by the Alberta Court of Appeal in Andriuk v. MerrillLynch Canada Inc., 2014 ABCA 177 (“Andriuk”), which involved certification for a class action in relation to a speculative stock: [10] The certification judge … correctly stated the applicable principle.

Where questions relating to causation or damages are proposedas common issues, the plaintiff must demonstrate (with supporting evidence) that there is a workable methodology for determining suchissues on a class-wide basis: Chadha v. Bayer Inc. (2003), (ON CA), 63 O.R. (3d) 22 (Ont. C.A.) at para 52. TheSupreme Court of Canada has recently reaffirmed the requirements [for methodology] at the certification stage. [31] As Mr. Miller notes in his factum, [Pro-Sys] and many of the other cases that appear to have more onerous methodologyrequirements have involved claims by indirect purchasers.

Indirect purchaser actions are notoriously complex, and [Pro-Sys] is a goodillustration of that. As the Court stated at the start of its decision: [1] It is no simple task to assess liability and apportion damages in situations where the wrongdoer and the harmed parties areseparated by a long and complex chain of distribution, involving many parties, purchasers, resellers and intermediaries.

Such is theproblem presented by indirect purchaser actions in which downstream individual purchasers seek recovery for alleged unlawful overchargesthat were passed on to them through the successive links in the chain. [32] That said, the [Pro-Sys] decision suggests that plaintiffs are required, at the certification stage, to establish some type of method fortesting the common issues. [33] In my opinion, however, “methodology” in this context is not, and should not be, confused with a prescribed scientific or economicmethodology.

Instead, it refers to whether there is any plausible way in which the plaintiff can legally establish the general causation issueembedded in his or her claim. As noted in Andriuk, not every case will require expert evidence (para. 11). [34] The methodology requirement must also be considered in light of the policy objectives of class actions: the object is to promote fairand efficient resolution of the common issues. If there is no way that the common issues could realistically be established in a class actionproceeding, then these goals would not be achieved and a class action should not be certified.

It is that concept which underpins themethodology requirement described in [Pro-Sys].

[35] The appellants point to the Court’s statement in [ Pro-Sys ] that “the expert methodology must be sufficiently credible or plausible to establish some basis in fact for the commonality requirement” (para. 118).

But that statement must be read in context with the rest of the decision. (Italic emphasis added by Savage J.A.) [ 66 ] Lastly, in Pro-Sys , Rothstein J. interpreted Hollick , which was not an indirect purchaser case, as having been decided, at least in part, on a failure to establish a plausible methodology for proving loss on a class-wide basis: [139] I am unable to accept these arguments [i.e., that class proceedings would not be a “fair, efficient and manageable method of advancing the claim”].

In Hollick , McLachlin C.J. was of the view that the plaintiff had not satisfied the certification requirements on the grounds that a class proceeding was not the preferable procedure. In that case, she found that the question of whether or not the defendant had unlawfully emitted methane gas and other pollutants was common to all class members. However, as to whether loss could be established on a class-wide basis, she found too many differences among the class members to consider loss a common issue.

In other words, while she found that there was a common issue related to the existence of the cause of action, she did not consider the loss-related issues to be common to all the class members. She dismissed the class action on the basis that “[o]nce the common issue is seen in the context of the entire claim, it becomes difficult to say that the resolution of the common issue will significantly advance the action” (para. 32). [140] In the present case, there are common issues related to the existence of the causes of action, but there are also common issues related to loss to the class members.

Unlike Hollick , here the loss-related issues can be said to be common because there is an expert methodology that has been found to have a realistic prospect of establishing loss on a class-wide basis . If the common issues were to be resolved, they would be determinative of Microsoft’s liability and of whether passing on of the overcharge to the indirect purchasers has occurred. Because such determinations will be essential in order for the class members to recover, it can be said, in this case, that a resolution of the common issues would significantly advance the action.

While it is possible that individual issues may arise at the trial of the common issues, it is implicit in the reasons of Myers J. that, at the certification stage, he found the common issues to predominate over issues affecting only individual class members. I would agree. In the circum

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