A Wise Decision: Recent Lessons on Evidence in Class Actions

by Bennett Jones LLP

Bennett Jones LLP

Wise v Abbott Laboratories, Limited, 2016 ONSC 7275 was a recent pre-certification summary judgment decision, which was released after the Divisional Court's decision this past summer in Dine v Biomet Inc, 2016 ONSC 4029. Both cases have important implications for the use of defence evidence in proposed product liability class actions.

For additional background on both decisions, see our previous blog posts on Biomet and Wise.


Biomet was a motion for leave to appeal Justice Belobaba's decision certifying a proposed product liability class action involving metal-on-metal hip implants. In dismissing the motion and upholding certification, the Divisional Court considered the appropriate treatment of evidence at the certification stage that touched on the merits of a proposed class action.

Wise was a pre-certification summary judgment motion. It concerned a proposed product liability class action related to AndroGel™, a topical ointment marketed for the treatment of conditions associated with testosterone deficiency. Justice Perell ultimately dismissed the plaintiffs' claim on the basis that they were unable to establish general causation.

Both cases consider how courts will deal with defence evidence where certification of a proposed class action is at stake.

Defence Evidence on Certification: Biomet

In Biomet, the defendants argued that Justice Belobaba had incorrectly disregarded their evidence on commonality. They claimed that Justice Perell's decisions in O'Brien v Bard Canada Inc, 2015 ONSC 2470 and Vester v Boston Scientific, 2015 ONSC 7950, in which he considered the evidence of both parties, conflicted with Justice Belobaba's refusal to consider the defence evidence in Biomet.

In Biomet, the Divisional Court concluded that the plaintiffs had succeeded in establishing some basis in fact for the existence of proposed common issues on certification. As a result, Justice Belobaba was entitled to decline to resolve conflicts in the evidence at the certification stage. In contrast, according to the Divisional Court, the plaintiffs in Bard and Vester failed to adduce sufficient evidence to establish commonality. As a result, the Biomet court distinguished Bard and Vester on the basis that in those cases, the defence evidence supplemented, rather than contradicted the plaintiffs' evidence, and was therefore properly considered.

Defence Evidence on Summary Judgment: Wise

In Wise, Justice Perell also considered the evidence of both the plaintiffs' and defendants' experts, this time in the context of the defendants' motion for summary judgment. He ultimately found that the plaintiffs failed to establish on a balance of probabilities that AndroGel™ can cause serious cardiovascular events.

The court followed the process set out in Hryniak v Mauldin, 2014 SCC 7, for determining whether to grant summary judgment. Motion judges tasked with deciding whether there is a genuine issue for trial must determine whether they can make a fair adjudication based on the entirety of the evidentiary record before them, and have expanded powers under Rule 20.04(2.1) and (2.2) to assist in doing so. Dismissing a proposed class action constitutes a final determination of the issues, and judges ought to be empowered to consider all admissible evidence, conflicting or otherwise. 

While some additional clarification on supplemental versus contradictory evidence would be welcome, both cases provide helpful instructions going forward for both plaintiffs and defendants on appropriate evidence in the certification context.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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