Thursday, August 13, 2009
NS Decisions in Class Actions

Class actions are a relatively new procedural vehicle here in Nova Scotia. The Class Proceedings Act was proclaimed in force only in June 2008. Being new, the Courts have not yet had a full opportunity to interpret the legislation and provide meaning. Very little precedence has come out of this province to guide lawyers on how to proceed with class action litigation.

Wagners Law Firm is at the forefront of class action litigation in Nova Scotia and has been for a number of years prior to the establishment of the Act. In recent months the firm has successfully argued two similar motions that were the first of their kind in this province. The motions involved defendants' requests for detailed particulars and evidence which related to the merits of the claim. On behalf of the class members of both class actions, Wagners refused the requests. We submitted that production of that nature was premature. In brief, the details of both motions are as follows.

In Morrison Estate v. Nova Scotia, Wagners represents residents of long-term care facilities in Nova Scotia who were forced to pay for their own health care costs. The defendant, the Attorney General of Nova Scotia, sought further particulars of what the class members were claiming as part of the litigation. Wagners refused to produce these particulars until after the proceeding was certified as a class action. The issue was heard before the Court on June 24, 2009. In the first decision of its kind in Nova Scotia, the Court sided with Wagners. The Court denied the production request, reasoning that such evidence prior to the proceeding being certified as a class action would result in increased costs and a reduced access to justice. The Court felt it important that the certification issue be addressed first, before addressing evidence addressing the merits of the case. The decision can be found here.

A similar motion was brought in Bellefotnaine et al. v. Purdue, a case in which Wagner represents victims of the pharmaceutical drug OxyContin. Purdue sought the medical records of the representative plaintiffs prior to the certification hearing. Wagners objected to the production, arguing that the contents of the records were irrelevant to whether the claim could appropriately be certified as a class action. Again, the Court sided with Wagners. It denied production before the certification hearing.

These two decisions will provide guidance to class action lawyers in future litigation in Nova Scotia. It is clear that the stance of the Court is that evidence and particulars related to the merits of a class action do not have to be produced unless and until a claim is certified as a class proceeding. These rulings save on the costs of litigation, savings which will get passed on to plaintiffs. The decisions will also help provide for more efficient resolutions of class action claims.