Case: Achtymichuk v. Bayer Inc., 2021 BCCA 147 (CanLII)
Keywords: pharmaceuticals; class action; sequencing application; leave to appeal
The Respondent is the representative plaintiff for a proposed pharmaceutical product liability class action matter brought with respect to “fluoroquinolone antibiotics”. The Appellants are pharmaceutical companies manufacturing and selling various antibiotics, including Ciprofloxacin, Moxifloxacin, and Levofloxacin. The Respondent alleges these antibiotics are dangerous to human health, lack proper warnings and directions, and that their use contributes to peripheral neuropathy.
The Appellants bring applications to strike affidavit materials and asks that a decision be made prior to the certification stage of the class action. The Case Management Judge relies on British Columbia v. Apotex Inc., 2020 BCSC 412 and the list of factors set out in Cannon v. Funds for Canada Foundation, 2010 ONSC 146. In the result, the Case Management Judge declines to schedule the applications to strike prior to the certification hearing, finding it would not promote the fair and efficient determination of the proceeding. Instead, the Case Management Judge orders the applications to strike be heard at the same time as certification.
The Appellants seek Leave to Appeal the Case Management Judge’s “sequencing order”. The Court of Appeal grants Leave.
The Court of Appeal observed that sequencing applications and orders have become an increasingly common feature in class proceedings and that the Court of Appeal “has not yet had the opportunity to comment” on this development. (See para. 33). According to the Appellants herein, notwithstanding the Case Management Judge’s decision, a Judge may allow applications regarding admissibility of evidence to take place prior to the certification. (See para. 26; see also Pro‑Sys Consultants Ltd. v. Microsoft Corporation, 2008 BCSC 1263, Huebner v. PR Seniors Housing Management Ltd., D.B.A. Retirement Concepts, 2020 BCSC 1037, and Sharp v. Royal Mutual Funds Inc., 2019 BCSC 2357).
The question for the Court of Appeal was whether Leave should be granted to address this issue. The test for Leave was recently described by Fenlon J.A. at paras. 3 and 4 of MacRae v. Woermke, 2019 BCCA 355:
 The test to be applied in determining whether leave to appeal should be granted is set out in Goldman, Sachs & Co. v. Sessions, 2000 BCCA 326:
- Is the point on appeal of significance to the practice?
- Is the point raised of significance to the action itself?
- Is the appeal prima facie meritorious or frivolous?
- Will the appeal unduly hinder the progress of the action?
The criteria for leave are “all considered under the rubric of the interests of justice”: Vancouver (City) v. Zhang, 2007 BCCA 280 at para. 10.
 Where, as in the present case, leave is sought to appeal a discretionary order, the third factor requires an assessment of “whether there is an arguable case that the Chambers Judge erred in principle, made an order that is not supported by the evidence, or whether the order appealed will result in an injustice”: Hagwilneghl v. Canadian Forest Products Ltd., 2011 BCCA 478 at para. 31. The applicants for leave must establish a reasonable possibility that a division of the Court of Appeal would grant the appeal on its merits: Webb v. Canada (Attorney General), 2019 BCCA 288 at para. 15.
Applying this framework, the Court of Appeal determined the Appellants’ proposed appeal was “of significance to the practice”; that there was “some benefit to the profession from guidance being provided…as to the proper procedures to be followed on sequencing applications”. (See para. 33). For the Court of Appeal, resolving the issue in this case is “important to the action” since whether the affidavit material is struck/not struck has an impact on the Appellants’ response to the certification application. (See para. 34). The Court of Appeal also found the Appellants raised “an arguable case” and established “a reasonable possibility” of success on appeal. (See para. 35). Finally, the Court determined the appeal would not hinder the progress of the underlying action and that it would be in the interests of justice to grant Leave. (See paras. 36-37).
Counsel for the Appellant (Bayer Inc.): William McNamara, W. Grant Worden, and Morag McGreevey (Torys LLP, Toronto)
Counsel for the Appellants (Janssen Inc. et al.): Karine Russell, Robin Reinerston, and Andrew Kavanagh (Blakes, Vancouver)
Counsel for the Respondent: Kulbinder Garcha and B. Sanghe (Garcha & Company, Burnaby)