CITATION: Dine v. Biomet Inc., 2016 ONSC 4039
DIVISIONAL COURT FILE NO.: 014/16
DATE: 20160617
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N :
STEVEN DALTON DINE
Plaintiff
(Respondent)
– and –
BIOMET, INC., BIOMET ORTHOPEDICS, LLC, BIOMET MANUFACTURING CORP. BIOMET US CONSTRUCTION, LLC and BIOMET CANADA INC.
Defendants
(Moving Parties)
Jonathan Ptak and Garth Myers
for the Plaintiff (Respondent)
James Newland and Daniel McConville
for the Plaintiff (Respondent)
Kent E. Thomson and Derek D. Ricci
for the Defendants (Moving Parties)
HEARD at Toronto: April 26, 2016, in writing
THEN J.:
[1] The defendants/moving parties (hereafter “Biomet”) seeks leave to appeal the order of Belobaba J. granting certification of the class action brought by the plaintiff Steven Dine (hereafter “the respondent”) dated December 18, 2015.
The test for leave to appeal to the Divisional Court
[2] The test for granting leave to appeal is set out in Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and states that leave to appeal is not granted unless:
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. [Emphasis added.]
[3] Leave may thus be granted under two possible branches, with each branch involving a two-part test, both parts of which must be met before leave may be granted.
[4] Under Rule 62.02(4)(a), the moving party must establish both that there is a conflicting decision of another judge or court in Ontario or elsewhere, though not by a lower level court, and that it is, in the opinion of the judge hearing the motion, "desirable that leave to appeal be granted." A "conflicting decision" must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).
[5] Under Rule 62.02(4)(b), the moving party must establish both that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. On the first part, it is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong - that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to "very serious debate": Nazari v. OTIP/RAEO Insurance Co., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.); Ash v. Lloyd's Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.). On the second part, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.); Greslik v. Ontario Legal Aid Plan (1988); O.R. (2d) 110 (Div. Ct.).
[6] I have considered both tests in coming to my conclusion. In my view, leave to appeal should not be granted for reasons that follow.
[7] On the first test, I am not persuaded that the decision of Belobaba J. at issue and the decisions of Perell J. or other judges are in conflict, nor am I persuaded that it is desirable that leave to appeal be granted.
[8] With respect to the second test I am not persuaded that there is good reason to doubt the correctness of the decision of Belobaba J. or that the matter is of such importance that leave to appeal should be granted.
(a) The First Test – Positions of the Parties
Is there a Conflicting Decision?
[9] Biomet argues that the motion judge's approach to the evidence addressing commonality departs radically from the approach of other judges, particularly the decisions of Perell J. in O'Brien v. Board Canada Inc., 2015 ONSC 2470 and Vester v. Boston Scientific, 2015 ONSC 7950, as well as the decisions of various other judges who found a lack of commonality in cases where there were multiple components and systems at issue.
[10] Biomet argues that it led the same type of evidence as the defendants in O’Brien and Vester to show that differences in product design led to different clinical outcomes such that there is no common design defect. Its evidence was rejected in this case while in those cases the evidence was relied upon to conclude commonality is not made out as negligent design claims would have to be determined on a device-by-device basis.
[11] Biomet submits that unlike the motion judge, Justice Perell recognized that evidence relevant to the merits may also be relevant to the certification test and should be considered. Perell J. recognized that this evidence was fundamental to establishing commonality, as a common feature does not establish a common issue unless it relates to a common defect (at paras. 118-119 in Vester and 89 of O'Brien).
[12] Biomet also argues that the motion judge concluded that the failure to warn claim was properly pled even though the plaintiffs brought no expert evidence in support of this claim, i.e. reviewing the defendant's product warnings, whereas Justice Perell concluded that there could be no basis in fact for a negligent failure to warn claim when no expert gave evidence regarding the warnings at issue.
[13] The Respondent argues that a true conflict in a decision occurs when different legal principles are applied to similar cases, whereas O'Brien and Vester are decided upon the same principles as the case at bar. Those cases led to a different result because their factual background is markedly different from the case at bar. Justice Perell had found that the plaintiffs did not present evidence that there was a design defect that was common to all the devices, whereas Justice Belobaba found there was sufficient evidence of product commonality in the hip implants through the shared defect of using a MoM articulation combined with large femoral heads.
[14] Biomet replies that the plaintiffs missed the point that conflict between O'Brien and Vester and the motion decision arises from the issue of whether, in multiproduct class actions, evidence that discloses the absence of commonality between a number of different medical devices is relevant if it also touches on the merits of the underlying claims.
[15] Biomet submits that while the motion judge summarily dismissed Biomet' s evidence establishing an absence of commonality because the evidence also touched on the merits, Justice Perell considered the same type of evidence and found it was highly relevant to commonality even though it also touched on the merits.
[16] Biomet argues Biomet's evidence demonstrated that differences in design between the various devices gave rise to differences in performance such that commonality cannot be established, for example, the revision rate for the M2a Magnum system varies drastically depending on which femoral stem component is used. This illustrated that class-wide findings regarding performance of a hip replacement system cannot be made without regard to the many particular components of a system. The alleged common defect, LH MoM construction, is cast too broadly, as this alone does not explain differences in performance nor is it problematic on its own. Otherwise, the plaintiff could certify a single class action involving every such hip implant system ever sold in Canada, which is absurd.
Is it Desirable to Grant Leave to Appeal?
[17] Biomet submits that granting leave is desirable because the difference in approaches taken by Justices Belobaba and Perell effectively means that the outcome of a certification motion may depend entirely on which of the two judges is assigned to the matter. On the one hand, Justice Perell compels disclosure of plaintiff medical records with a low threshold and considers defence evidence pertaining to different characteristics of devices in assessing commonality; on the other hand, Justice Belobaba refuses to grant disclosure of the plaintiffs medical records and refuses to consider defense evidence on commonality. It is submitted this court should establish the appropriate approach in certification cases of this nature.
[18] The respondent submits that as there is no conflict in principle in the approach taken by Belobaba and Perell JJ. and accordingly, it is not either desirable or necessary to grant leave to appeal.
(b) The Second Test – Position of the Parties
Is There Good Reason to Doubt the Correctness of the Certification Order?
[19] Biomet argues that the motion judge's refusal to decide Biomet's motion to exclude the evidence of Dr. Graves is irreconcilable with his repeated reliance on that evidence. The motion judge made other errors, including presuming that all of the plaintiff’s evidence is admissible under the "some basis in fact" standard even though the defendant objected, accepting unsupported assertions made by plaintiff's counsel including evidence with respect to the defendant's labeling and clinical trials for the products, and making findings contradicted by the evidence, including those in support of his finding that the LH MoM systems are treated as a group by the experts and defendant. Even if this is not an issue, there is reason to doubt the correctness of the motion judge's approach to preferability: he concluded a class action was preferable based solely on the existence of common issues, and without considering whether the individual inquiries necessary in the trial would be too onerous and make the claim unsuitable for a class action.
[20] The respondent submits that the motion decision is correct. The applicant has not articulated any error in principle with respect to Dr. Graves, but only takes issue with the lack of a formal dismissal of their motion, while the motion judge made clear that such a ruling was not necessary as the other evidence was sufficient to support the certification order.
[21] Biomet replies that it did articulate an error in principle: the motion judge's failure to discharge his gatekeeping function in refusing to decide the motion to exclude evidence while simultaneously relying on the evidence. The judge likewise relied on other inadmissible evidence. Questions of admissibility are not discretionary, as expert evidence either satisfies admissibility criteria or it must be excluded. The plaintiff’s argument that the evidence of Dr. Graves was unnecessary to support certification is incorrect, as in reality this is what the motion judge relied upon heavily in his decision. What's more, the plaintiff’s argument that Dr. Graves' evidence is admissible is incorrect. The applicant disputes the independence and expertise of Dr. Graves, and points out that the motion judge failed to address Biomet' s concern with respect to Dr. Graves' evidence, namely that based on the expert opinion of Dr. Walters that further information would be required to fully validate the statistical analyses reported by Dr. Graves.
Does The Proposed Appeal Involve Matters Of Sufficient Importance To Warrant Granting Leave?
[22] Biomet submits that litigants and counsel need guidance from this court regarding the approach in multi-product class certification, the treatment of evidence on commonality that also addresses the merits, the admissibility and handling of evidence, and a rigorous preferability analysis. The respondent submits that the issue raised by Biomet of whether the motion judge erred in refusing to decide its motion to exclude evidence is idiosyncratic and raises no issue of general importance.
analysis
The First Test – Conflicting Decisions
1) Does the Motion Judge Adopt a Conflicting Approach to Evaluating Evidence on Certification?
[23] To my understanding Biomet’s core argument is that the motion judge ignored Biomet’s evidence on the absence of commonality, e.g. evidence that differences in the other components of the hip implant devices with the proposed common defect give rise to differences in performance, because this evidence also touched on the merits.
[24] I disagree with this characterization of Belobaba J.’s decision on this point.
[25] Justice Belobaba did not reject the defence evidence because it went to the merits, but because he took the view that, when the plaintiff had adduced sufficient evidence of the existence of the proposed common issues, i.e., some basis in fact for the proposition that the defendants breached their duty of care by manufacturing and distributing an arguably unsafe LH MoM hip implant with an unacceptably high rate of revision, considering conflicting defence evidence on this point was not appropriate, as that is a matter for summary judgment. The motion judge discusses this at paras. 32-34:
As the Supreme Court noted in Fischer,[15] "[t]he court cannot engage in any detailed weighing of the evidence but should confine itself to whether there is some basis in the evidence to support the certification requirements."[16] The defendants may well dispute the plaintiff's evidence, but "the certification motion is not the place for resolving the controversy."[17] The case law has long made clear that the certification motion is not the place for an adjudication of the merits.[l8] Nor is it the place to resolve the conflicting expert opinions. In Quizno's Canada,[l9] the Divisional Court was faced with conflicting expert evidence about the validity of a methodology for assessing losses amongst the franchisees. In applying the "some basis in fact" standard, the Court properly refused to engage in a weighing of the conflicting evidence at the certification stage:
It is neither necessary nor desirable to engage in a weighing of this conflicting evidence on a certification motion ... A motions judge is entitled to review the evidentiary foundation to determine whether there is some basis in fact to find that proof of aggregate damages on a class wide basis is a common issue. While that might require some review of the evidence, the assessment should not relate to the merits of the claim or the resolution of conflicting expert reports.[20]
The detailed counter-arguments advanced by the defendants will be fully considered at the upcoming summary judgment motion. It is sufficient for my purposes as the judge hearing the certification motion to conclude that the plaintiff has provided some evidence of the existence of proposed common issues 1, 2 and 3 - that is, the plaintiff has satisfied the first step of the twostep commonality requirement and has established some basis in fact for the proposition that the defendants have breached their duty of care by manufacturing and distributing an arguably unsafe large-heard MoM hip implant product with an unacceptably high rate of revision.
[26] This is a different situation from that in O'Brien and Vester, which considered defence evidence as the court accepted there were issues with the evidence of the plaintiff. Both decisions also recognize that there are limits at certification on the scrutiny of the plaintiffs evidence. In O'Brien, the defendant criticized the qualifications, methodology, and conclusions of the plaintiffs expert, Dr. Drutz, arguing that he did not establish a singular design defect in the pelvic mesh products at issue. The motion judge stated that, though some of these criticisms went "well beyond the fair scrutiny of his opinion that is permissible on a certification motion", some of Dr. Drutz' s evidence is not admissible or helpful. The defendant's evidence established that each of its products is differently designed and has different purposes, and Dr. Drutz's evidence failed to establish the contrary as Dr. Drutz admitted he is not an expert on materials or engineering; no weight can be given to evidence of Dr. Drutz' s that was based on statements about Bard's products on the webpage of a U.S. law firm suing Bard or a Bloomberg news article; Dr. Drutz' s opinion on whether product warnings are accurate has no factual basis as he did not review the documents providing those warnings (at paras. 113-119).
[27] In Vester, the plaintiffs criticized the defendant's evidence on lack of commonality as going to the merits. The court disagreed on the basis that the plaintiffs did not bring any evidence to show there is some basis in fact that the polypropylene mesh common to the pelvic devices at issue was a design defect, so it was appropriate to at least identify what might be proven as a design defect. Prior to embarking upon this analysis, the motion judge recognized the principle described in Microsoft that "a court should not resolve conflicting facts and evidence at the certification stage" (at para. 95).
[28] Thus, O’Brien and Vester are in my view distinguishable. O'Brien and Vester were decided on a different evidentiary bases from the case at bar. In O'Brien, certification was denied because the defendant's evidence established that the decision to use permanent surgical mesh was made on a product-by-product basis such that each product had its individual risk profile and the plaintiff did not establish the contrary as its expert recognized it had no expertise in engineering or materials, and the plaintiff did not bring any evidence to suggest that permanent surgical mesh should never be used such that the negligence question can be answered in common for all 19 devices (see paras.123, 125, 127, 129, 131).
[29] In Vester, certification was not granted because the plaintiffs did not bring any evidence that there was any danger in using polypropylene mesh, which was a standard product in the industry, so there was no basis to conclude its use constitutes a defect and thus no common defect across the nine products was identified (see paras. 123, 126). The court ultimately adjourned the motion to permit the plaintiffs to bring evidence that use of this mesh is problematic.
[30] The motion judge certified the case at bar on the grounds that the plaintiff brought sufficient evidence of some basis that the three hip implant devices, with a large head and metal-on-metal structure as the common defect, are unsafe due to high revision rates or metal-related pathology, and there was evidence that the question of whether this design choice is negligent can be answered in common across the three products as the evidence establishes they are viewed as a single product group (see paras. 22-30, 37-39).
The decisions are consistent considering recent Supreme Court guidance
[31] The certification decisions referred to above are consistent between themselves when considering the principles enunciated by the Supreme Court, which most recently addressed considerations pertaining to evidence in certification motions in Microsoft[^1], Sun-Rype[^2], and AIC.[^3]
[32] The evidentiary requirement on certification motions is set out in Hollick[^4], where the standard of proof was described as requiring "some basis in fact" that the certification criteria are made out. This is a "relatively low evidentiary standard" that requires something beyond mere speculation or a bare assertion in the pleadings, but is lower than a balance of probabilities and does not require an "exhaustive" evidentiary record: Sun-Rype at para. 70; Microsoft, at para. 102; AIC at para. 41. Each case should be decided on its own facts rather than based on an abstract definition of this standard, and requires more than "symbolic scrutiny" of the evidence but does not give rise to a determination of the merits - see Microsoft, at paras. 103-104:
Nevertheless, it has been well over a decade since Hollick was decided, and it is worth reaffirming the importance of certification as a meaningful screening device. The standard for assessing evidence at certification does not give rise to "a determination of the merits of the proceeding" (CPA, s. 5(7)); nor does it involve such a superficial level of analysis into the sufficiency of the evidence that it would amount to nothing more than symbolic scrutiny.
In any event, in my respectful opinion, there is limited utility in attempting to define "some basis in fact" in the abstract. Each case must be decided on its own facts. There must be sufficient facts to satisfy the applications judge that the conditions for certification have been met to a degree that should allow the matter to proceed on a class basis without foundering at the merits stage by reason of the requirements of s. 4(1) of the CPA not having been met.
[33] In the common issues context, this is generally interpreted as a two-step requirement to adduce some evidence that (1) the proposed common issue actually exists and that (2) the proposed issue can be answered in common across the entire class: Hollick, at para. 19.
[34] After Hollick, some decisions suggested that, once the evidence is admitted, weighing evidence at certification was inappropriate (Cloud, Pearson, DRAM)[^5], whereas others took the view that the court can assess the cogency of the plaintiff’s evidence and can rely on defence evidence to the contrary (Chadha, Alves, McCracken)[^6]. The recent Supreme Court cases adopt the view that weighing evidence is inappropriate and caution lower courts to refrain from undertaking detailed assessments of the evidence at certification.
[35] The Supreme Court seems to draw a distinction between three situations: weighing the plaintiff’s evidence in its own right; weighing the plaintiff’s evidence while considering evidence brought by the defence to fill gaps in the record on matters not directly addressed by the plaintiff, and relying on this defence evidence to find the plaintiff failed to establish "some basis in fact"; and weighing the plaintiff’s evidence against directly contradictory evidence from the defence.[^7]
[36] While the first two assessments are appropriate (see Sun-Rype and AIC), Microsoft suggests at para. 126 that, where there is conflicting evidence at certification, the motion judge should decline to resolve the conflict and permit the issue to proceed to trial:[^8]
It is indeed possible that at trial the expert evidence presented by Microsoft will prove to be stronger and more credible than the evidence of Dr. Netz and Professor Brander. However, resolving conflicts between the experts is an issue for the trial judge and not one that should be engaged in at certification (see Infineon, at para. 68; Irving, at para. 143). The trial judge will have the benefit of a full record upon which to assess the appropriateness of any damages award that may be made pursuant to the proposed methodology. For the purposes of certification and having regard to the deference due the applications judge on this issue, I would not interfere with the findings of Myers J. as to the commonality of the loss-related issues.
[37] These emerging principles are aptly summarized in Brandon Kain, "Developments in Class Actions Law: The 2013-14 Term - The Supreme Court of Canada and the Still-Curious Requirement of 'Some Basis in Fact"', (2015) 68 S.C.L.R. (2d) 77, at p. 132:
The certification judge should not engage in "finely calibrated assessments of evidentiary weight" [Microsoft, at para. 102; AIC, at para. 40] or a "detailed weighing of the evidence" [AIC, at para. 43], in the sense of "resolv[ing] conflicting facts and evidence". [Microsoft, at para. 102; AIC, at para. 40]. Nonetheless, a limited weighing of the evidence is possible. This includes assessing the cogency of the plaintiff's evidence in its own right (e.g., where it is contradicted by the plaintiff's other evidence, or is speculative rather than grounded in the facts), particularly where it takes the form of expert evidence regarding loss-related common issues, in which case the court may actively assess whether it is credible, plausible and realistic. It also includes considering whether the plaintiff's evidence adequately responds to problems raised by the non-conflicting evidence of the defendant.
[38] The decision of Belobaba J. in this case as well as that of Perell J. in O’Brien and Vester are consistent when considering these principles. In O'Brien, defence evidence was relied upon to conclude that product design decisions were made on a device-by-device basis, such that negligence could not be determined in common for all of the products, after determining that the plaintiff brought no evidence in respect of commonality in product design decisions or that the permanent surgical mesh proposed as a common element was in any way dangerous on its own. In Vester, the defence evidence was used to discern a likely common defect as the plaintiff did not point to such a defect or bring any evidence that polypropylene mesh is dangerous on its own. In both cases, defence evidence supplemented, rather than contradicted, plaintiff evidence.
[39] In the case at bar, the plaintiff brought evidence that the three types of hip implant devices had high revision rates and were associated with risky metal-related pathology, and that the three products were treated as a product group because of their use of LH femoral heads and MoM design such that the question of negligence could be answered in common for all three. The defendant brought evidence consisting of counter-opinions to the plaintiff’s expert evidence on revision rates, the role and importance of factors idiosyncratic to each patient, and the conclusions drawn from literature on the device safety. This evidence is aimed at contradicting the plaintiff evidence that the devices are dangerous such that use of LH MoM design may be negligent. Even if viewed as supplementary to the plaintiff’s evidence, it was within the purview of a motion judge to conclude, on the facts of the case, that the plaintiff has established a sufficient basis in fact for commonality.
[40] In my view Biomet has failed to satisfy the first test for leave to appeal.
the second test: reason to doubt the correctness of the decision
Does the Motion Judge's Treatment of Biomet's Motion to Exclude the Plaintiff's Evidence Give Rise to Good Reason to Doubt the Correctness of his Decision?
[41] The applicant argues that the motion judge's refusal to address its motion to exclude Dr. Graves' evidence, while simultaneously relying on that evidence, gives reason to doubt the correctness of his decision that commonality is established. The applicant also argues that the motion judge failed to give full consideration to whether preferability criteria are satisfied, such as whether individual inquiries necessary in the trial would be too onerous and make the claim unsuitable for a class action.
No reason to doubt the correctness of conclusion on commonality
[42] Once again, it is unclear that the applicant's characterization of the motion decision is accurate. The motion judge clearly and repeatedly states that the plaintiff satisfied the some-basis-in-fact evidentiary requirement through items of evidence other than that of Dr. Graves, at paras. 22, 30, 31, 34, and 62:
The plaintiff relies on the following to provide some basis in fact for proposed common issues 1, 2 and 3: expert evidence, peer-reviewed literature, internationally accepted revision rate guidelines, correspondence between Health Canada and Biomet and the February 10, 2015 "hazard alert." Any one of these categories or items of evidence would itself provide some evidence in fact and in combination there is sufficient basis in fact to support common issues l, 2 and 3. I will discuss each of these categories of evidence in turn.
In sum, as already noted, any one of the above-noted categories or items of evidence could by itself provide some evidence supporting the proposed "duty of care" issues. When taken together, there is obviously more than sufficient evidence for the existence of proposed common issues 1, 2 and 3. [Emphasis added]
Nonetheless, the defendants take issue with almost every point made by the plaintiff and present extensive counter-evidence, including detailed counter-opinions from their own experts about, amongst other things, the validity of Dr. Graves' opinion about "safety concerns" and "unacceptably high revision rates" (and the defendants' inability to access the underlying raw data), the role and importance of patient and surgeon-related factors, and the conclusions drawn from the world-wide literature and international clinical studies about the safety of Biomet implant systems. This counter-evidence is, to be sure, compelling but it is irrelevant at the certification stage of the proceeding.
The detailed counter-arguments advanced by the defendants will be fully considered at the upcoming summary judgment motion. It is sufficient for my purposes as the judge hearing the certification motion to conclude that the plaintiff has provided some evidence of the existence of proposed common issues 1, 2 and 3 - that is, the plaintiff has satisfied the first step of the twostep commonality requirement and has established some basis in fact for the proposition that the defendants have breached their duty of care by manufacturing and distributing an arguably unsafe large-heard MoM hip implant product with an unacceptably high rate of revision.
The defendants moved to exclude key portions of the evidence of Dr. Graves, the Australian Registry expert, on various grounds. As already noted, the plaintiff does not need Dr. Graves' evidence to succeed on this motion for certification. Even if this evidence were excluded, there would still be some basis in fact supporting the commonality of each of the proposed common issues.[39] The defendants' motion need not be decided. [Emphasis added]
[43] The motion judge described the following items of evidence, other than Dr. Graves' opinion, in support of his conclusion that there is some basis in fact for the plaintiffs argument that the defendant is negligent in manufacturing an arguable unsafe hip implant product: peer-reviewed medical studies on the propensity of the hip implants to cause metal related pathology, correspondence between Biomet and Health Canada indicating concerns about the devices, the guideline revision rate for a well-performing hip implant published by the National Institute for Health and Care Excellence to which the devices compare poorly, and a "hazard alert" issued by Biomet advising that it would stop supplying two of its hip implants for having higher than expected revision rates (at paras. 26-29).
[44] I am satisfied there is no basis to doubt the correctness of the decision of the motion judge, that these items of evidence satisfy the some-basis-in-fact commonality threshold.
No reason to doubt the correctness of conclusion that class action is preferable
[45] Finally, the applicant argues that the motion judge concluded a class action was preferable based solely on the existence of common issues, and without considering whether the requisite individual inquiries would make a class proceeding untenable.
[46] The applicant does not indicate a credible basis upon which to doubt the correctness of the motion judge's assessment that a class action is preferable. The motion judge, as an experienced class action judge, turned his mind to this and reached a reasoned decision on this issue, at paras. 13-14:
In my view, the adjudication of the proposed common issues will meaningfully advance this litigation whatever its outcome. If the defendants are found to have met the standard of care, then that finding will be dispositive of the entire litigation as in Andersen v. St. Jude.[5] And if the defendants breached the standard of care, then a class action with the trial judge utilizing the wide-ranging judicial powers provided under s. 25 of the CPA is the preferred procedural vehicle to manage and determine any subsequent individualized damage assessments. I note that, in principle, the common issues that are proposed herein are not materially different from other medical products class actions that have been certified. [6]
Therefore, assuming that the proposed common issues are certified there is at least some evidence of preferability and frankly, little chance that any procedure other than a class action could be shown to be more preferable.[7] Thus, as I have already noted, the only real issue on this motion for certification is commonality under s. 5(1)(c).
[47] On the second test, I am not satisfied that there is reason to doubt the correctness of the decision of Belobaba J. or that it is of sufficient importance to grant leave to appeal.
[48] Accordingly, for all these reasons, the application for leave to appeal is dismissed with costs.
[49] If the parties cannot agree as to the quantum of costs the respondent may submit a bill of costs and brief submissions as to costs (no more than four typed pages) within 30 days of the release of this decision and Biomet may file its submissions within 15 days thereafter.
THEN J.
RELEASED: June 17, 2016
CITATION: Dine v. Biomet Inc., 2016 ONSC 4039
DIVISIONAL COURT FILE NO.: 014/16
DATE: 20160617
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
STEVEN DALTON DINE
Plaintiff
(Respondent)
– and –
BIOMET, INC., BIOMET ORTHOPEDICS, LLC, BIOMET MANUFACTURING CORP. BIOMET US CONSTRUCTION, LLC and BIOMET CANADA INC.
Defendants
(Moving Parties)
REASONS FOR JUDGMENT
THEN J.
RELEASED: June 17, 2016
[^1]: Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57, [2013] S.C.J. No. 57, [2013] 3 S.C.R 477 (S.C.C.).
[^2]: Sun-Rype Products Ltd. v. Archer Daniels Midland Co, 2013 SCC 58, [2013] S.CJ. No. 58, [2013] 3 S.C.R. 545 (S.C.C.).
[^3]: AIC Ltd. v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949 (S.C.C.)
[^4]: Hollick v. Toronto (City), 2001 SCC 68, [2001] S.C.J. No. 67, [2001] 3 S.C.R. 158 (S.C.C.).
[^5]: Cloud v. Canada (Attorney General), 2004 45444 (ON CA), [2004] O.J. No. 4924, 73 O.R. (3d) 401 (Ont. C.A.), leave to appeal refused [2005] S.C.C.A. No. 50 (S.C.C.); Pearson v. Inco Ltd., 2006 913 (ON CA), [2005] O.J. No. 4918, 78 O.R. (3d) 641, at para 52 (Ont. C.A.), leave to appeal refused [2006] S.C.C.A. No. l (S.C.C.); Pro-Sys Consultants Ltd. v. Infineon Technologies AG 2009 BCCA 503, [2009] B.C.J. No. 2239, 312 D.L.R. (4th) 419 (B.C.C.A.), leave to appeal refused [2010] S.C.C.A. No. 32 (S.C.C.).
[^6]: Chadha v. Bayer Inc. 2003 35843 (ON CA), [2003] O.J. No. 27, 63 O.R. (3d) 22 (Ont. C.A.), leave to appeal refused [2003] S.C.C.A. No. 106 (S.C.C.); Alves v. First Choice Canada Inc., 2011 SKCA 118, [2011] S.J. No. 625, 342 D.L.R. (4th) 427 (Sask. C.A.), leave to appeal refused [2011) S.C.C.A. No. 541 (S.C.C.); McCracken v. Canadian National Railway Co, 2010 ONSC 4520, [2010] OJ. No. 3466, 3 C.P.C. (7th) 81, at paras. 291-303 (Ont. S.C.J.), rev'd [2012) O.J. No. 2884, 2012 ONCA 445, 111 O.R. (3d) 745 (Ont. C.A.).
[^7]: This categorization is adopted from the article by Brandon Kain, “Developments in Class Action Law”. The 2013-2014 Term. The Supreme Court of Canada and the Shill Curious Requirement of “Some Basis In Fact” (2015) 68 S.C.L.R. (2d) 77 at p.128.
[^8]: In Microsoft, the plaintiffs and defendants tendered competing expert evidence concerning the ability to establish class-wide loss: the expert defence evidence identified several flaws in the plaintiffs' evidence, e.g., the failure to take the Canadian context into account, the absence of an evidentiary basis, and the lack of workability in the proposed methodology showing class-wide loss.