IN THE SUPREME COURT OF BRITISH COLUMBIA
BROUGHT PURSUANT TO THE CLASS PROCEEDINGS ACT, R.S.B.C. 1996, c. 50
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Citation: |
Olsen v. Behr Process Corporation, |
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2003 BCSC 1252 |
Date: 20030812
Docket: S006106
Registry: Vancouver
Between:
LEONARD OLSEN,
PAUL DENNIS and LINDA DENNIS
PLAINTIFFS
And:
BEHR PROCESS CORPORATION
and BEHR PROCESS
DEFENDANTS
Before: The Honourable Mr. Justice Oppal
Reasons for Judgment
(In Chambers)
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Counsel for the Plaintiffs: |
W.K. Branch J. Prodor D.B. Lebans |
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Counsel for the Defendants: |
E.J. Adair R.B. Fraser |
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Date and Place of Hearing: |
May 26-29, 2003 |
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Vancouver, B.C. |
INTRODUCTION
[1] This is an application by the plaintiffs to certify a class action pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50, s. 2, and to appoint the plaintiffs, Leonard Olsen and Paul Dennis, as representatives of the class.
[2] This is a products liability case. The plaintiffs have alleged that they suffered damages and losses when they applied wood stain products, manufactured and marketed by the defendants, to their homes. The plaintiffs’ claim is based upon negligence, breach of warranty and breaches of the Trade Practice Act, R.S.B.C. 1996, c. 457, and the Competition Act, R.S.C. 1985, C-34.
[3] The proposed class is defined as follows:
(a) who purchased and applied or caused to be applied, on or after January 1, 1991, the Defendants’ products Super Liquid Raw-Hide or Natural Seal Plus (the “Products”) to a natural wood exterior surface within British Columbia; or
(b) who have a legal or beneficial interest in a natural wood exterior surface within British Columbia, to which the Products were applied on or after January 1, 1991.
[4] The proposed common issues are as follows:
(1) Negligence Issues
(a) Did the Defendants owe a duty of care to the Plaintiffs and the Class Members to ensure that the Products were not defective and would not result in damage or injury to the exterior wood surfaces to which they were applied?
(b) Did the Defendants breach the standard of care in designing, manufacturing and testing the Products, and if so, when did the breaches begin? In relation to this issue, the following sub-issues will be considered:
(i) Did the Products contain ingredients that were chemically incompatible or unstable, such as to promote mildew growth and discolouration and degradation of the Products and the wood surfaces to which they were applied?
(ii) Did the Products contain insufficient concentrations of mildewcide or an improper type of mildewcide so as to cause mildew growth and discolouration and degradation of the Products and the wood surfaces to which they were applied?
(iii) Did the Defendants ignore warnings provided by their mildewcide suppliers to the effect that the suppliers' mildewcide should not be used with the Products?
(iv) Did the Products contain ingredients that would not dry completely, leaving a finish that would attract dirt and debris and promote mildew growth and discolouration?
(v) Did the Defendants fail to properly test the performance of the Products either before or after distribution, or, alternatively, did they ignore, conceal, destroy or lose the results of such tests?
(c) Did the Defendants owe a duty of care to the Plaintiffs and the Class Members to warn them that the Products could cause damage to exterior wood surfaces by promoting mildew growth, discolouration and degradation?
(d) Did the Defendants breach the standard of care in failing to adequately warn the Plaintiffs and the Class Members that the Products could cause damage to exterior wood surfaces, and if so, when did the breaches begin?
(2) Trade Practice Issues
(e) Were the Defendants "suppliers" as that term is defined in the Trade Practice Act, s. 1?
(f) Was the Defendants' conduct in marketing, promotion, labeling and sale of the Product to Class Members a "consumer transaction" as that term is defined in the Trade Practice Act, s. l, and "deceptive acts or practices" or "unconscionable acts or practices" pursuant to Trade Practice Act, ss. 3 and 4?
(3) Competition Act and Breach of Warranty Issues
(g) Did the Defendants make representations as set out in paragraphs 15, 16 and 44 of the Amended Statement of Claim:
(i) on the Products or their wrappers or containers,
(ii) on in-store or point-of-purchase displays, or
(iii) in literature accompanying the Products,
and if so, were those representations false or misleading in a material respect so as to contravene the Competition Act, s. 52?
(h) Did the Defendants make representations as set out in paragraphs 15, 16 and 45 of the Amended Statement of Claim:
(i) on the Products or their wrappers or containers,
(ii) on in-store or point-of-purchase displays, or
(iii) in literature accompanying the Products, and if so, were those representations false?
(4) Punitive Damages Issue
(i) Are the Defendants liable to pay punitive or exemplary damages having regard to the nature of the established breaches?
BACKGROUND
[5] The representative plaintiffs have alleged that they purchased wood stain products manufactured by the defendants and sold by various retail outlets. The plaintiff Mr. Olsen, a resident of Hornby Island, has deposed that in September 1996 he purchased a product known as Super-Liquid Raw-Hide (SLR) and applied it on red cedar siding and posts on his property. He has stated that within two years of the application, the stairs “of the home and deck began turning black”. Similarly, the plaintiff Mr. Dennis, a resident of Everett, Washington, has deposed that in December 1996 he purchased Natural Seal Plus (NSP) and applied it on a cedar planter and a cedar totem pole. He said he purchased and applied the product “in order to preserve the quality….” He has also deposed that within six months the surface upon which the product was applied turned black.
[6] Dr. Mueller, a mycologist, who examined both the Olsen and Dennis properties made the following comments in a report dated May 18, 2001:
All sides of the Olsen home are heavily colonized by aureobasidium pullulans with ASTM disfigurement rating of zero in the worse areas. The surfaces also colonized in most areas by cladosporium sp., another dark colour mildew that contributes to the disfigurement.
[7] He went on to state that:
One of the main constituents of Behr Raw-Hide coatings is linseed oil, a well-known food source for aureobasidium pullulans.
Dr. Mueller’s reports are almost identical in that in each case he said that in his opinion the discolouration and the damage on the plaintiffs’ properties was caused by application of the defendants’ products. Thus, the plaintiffs’ claim is that the defendants’ products caused and contributed to the growth of mildew.
[8] The plaintiffs’ claim is that the defendants’ wood stains caused irreparable harm to their homes and that it is not financially feasible to either replace or repair the damaged wood. It is also alleged that the costs for each individual to commence litigation far outweighs the costs incurred in a class action.
[9] Plaintiffs’ counsel has alleged that notwithstanding a lack of public notice as of May 5, 2002, they have been contacted by approximately 147 persons from British Columbia and other provinces who wish to become involved in the class action.
THE POSITION OF THE DEFENDANTS
[10] The defendants have argued that these proceedings are not appropriate for certification for a number of reasons. First, it is argued that there is an insufficient evidentiary basis to justify certification. In other words, the evidence falls short of the requirements for certification. In that regard, the defendants have filed extensive evidence with the court that relates to the beneficial aspects of the products in question.
[11] The
defendants have deposed that the performance of any exterior wood stain
can be affected by a number of factors, including weather conditions, proper
application, proper maintenance and proper surface preparation. For
instance, the defendants have stated that all NSP labels clearly state
that it is necessary to recoat or reapply the product on a periodic basis. Failure
to do that may result in discolouration. As well, the defendants
have challenged the findings of the plaintiffs’ experts that the discolouration
is, in fact, mildew, for it is stated that it could be iron stain, dirt
or algae. It is argued that since January
1, 1991, the period from which the plaintiffs seek certification, “tens of thousands
of gallons of the products have been sold in B.C. and in
[12] The defendants have argued that there simply is no air of reality to the plaintiffs’ claims that the defendants’ products failed totally. To that extent, the defendants rely on a number of expert witnesses. Dr. John Hauser, a university professor from the Sloane School of Management of the Massachusetts Institute of Technology, has deposed that he was retained by the defendants to assess the satisfaction of users of Behr exterior wood coatings and also to assess the satisfaction of individuals who contacted the defendants’ technical services department with inquiries. He has deposed that he conducted extensive scientifically-based surveys of consumers in British Columbia and Oregon. He has deposed that “none of the Behr users in British Columbia report that they experience mildew problems. In comparison, about two percent of non-Behr users report that they experience mildew, a finding that is inconsistent with the plaintiffs’ allegations that … the products were defective and promote mildew growth.” He has also deposed that “Behr users in British Columbia are generally satisfied with … the products….” He has also deposed that Behr’s Technical Services Department (TSD) “is highly effective in providing information and resolving issues or problems”.
[13] Dr. Peter Reiss, a professor from the Stanford Graduate School of Business in California, has deposed that he was retained by the defendants to examine and analyze the frequency at which Canadian consumers complained to Behr about mildew or similar problems. He has deposed that the defendants have an active consumer service programme that monitors questions about the application and performance of their products. He has also deposed that the vast majority of consumer contacts are about SLR products and related to “mildew products”.
[14] Dr. Wayne Wilcox, a forest products pathologist and professor emeritus from the University of California, has deposed that for over 40 years he has studied, compiled and analyzed wood and forest products data. He is familiar with mildew growth. He has stated that the term “mildew” has a very widespread colloquial use and that there is widespread confusion as to the meaning of the term. The clear inference from his evidence is that the substance complained of may not be mildew at all.
[15] Dr. Wilcox has also examined eleven homes in Washington State where the products were alleged to have been applied. He has stated that even if the plaintiffs succeed in establishing that the products were defective, it will be necessary to determine whether the discolouration has resulted from iron stain, algae or weathering rather than mildew and, further, whether the discolouration of the wood surface existed prior to the application of the defendants’ products. He has gone on to state that there is a myriad of causes of blackening or discolouration of a wood surface which do not arise from mildew or mould fungi. Finally, he has stated that “the reasonable life of wood coatings such as the products is relatively short.” In other words, the mere fact that there may be discolouration does not necessarily mean that the defendants’ products were defective in any sense. He has seriously challenged the plaintiffs’ ability to prove causation.
[16] The defendants have technical services departments in both their Santa Ana, California and Calgary, Alberta locations. The departments are established in order to address consumer complaints. They offer services without charge to all purchasers of their products. Consumers are able to access the departments by the use of an 800 telephone number. According to the defendants’ material, the department deals with problems relating to weather and mildew. However, it is said that those problems generally arise when the wood surface is not properly prepared for the application of the products. In any event, it is said that the defendants provide consumers with helpful advice in order to remedy the problems associated with the application of the products. In many cases cash payments are made to consumers on a “without fault” basis. In other words, consumers need not prove fault on the part of the defendants in order to recover compensation in the event they are not satisfied with the products.
[17] The defendants have stated that they have kept a database relating to consumer complaints and problems. The defendants’ evidence is that “the experience of B.C. consumers of the products is very positive and directly contradicts the plaintiffs’ theory of “total failure’ of the products.”
ANALYSIS
The Law
[18] The law is not in dispute. The requirements for a class certification proceeding are set out in s. 4 of the Act. That section reads as follows:
4 (1) The court must certify a proceeding as a class proceeding on an application under section 2 or 3 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 of notifying class members of the proceeding, and
(iii) does not have, on the common issues, an interest that is in conflict with the interests of the other class members.
(2) In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, the court must consider all relevant matters including the following:
(a) whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members;
(b) whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions;
(c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings;
(d) whether other means of resolving the claims are less practical or less efficient;
(e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means.
[19] In Western Canada Shopping Centres Inc. v. Dutton (2001), 201 D.L.R. (4th) 385 (S.C.C.), the Court set out four basic requirements that must be met before a class action may be certified. They are as follows:
1. A class must be capable of clear definition.
2. The issues relating to law or fact must be common to all class members.
3. The success for one class member means a success for all.
4. The proposed class representatives must adequately represent the interests of the class.
The first requirement is that there be an identifiable class of two or more persons and that the claims of the class members raise issues that are common to the members of the class. An issue becomes common “only where its resolution is necessary to the resolution of each class member’s claim.”
[20] A leading authority on the requirements for certifying a class action is Hollick v. City of Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.), affirming (2000), 46 O.R. (3d) 257 (C.A.). The main issue in that case was whether the plaintiffs had met the certification requirements of the Ontario legislation, which is similar to the Act in this province. At the outset the Court said that the legislation ought not to be interpreted in a restrictive manner but should be construed generously (at p. 28). The Court also restated the public policy rationale for class action proceedings. The Court stated that class actions have three important advantages over individual law suits. First, they address the issue of judicial economy by avoiding duplication in fact-finding and legal analysis; second, they provide access to the courts on a more economic basis by spreading the costs over a larger number of class members; and, third, they address the question of modification of behaviour of wrongdoers (see 28-9).
[21] The first requirement under the Act is that the pleadings must disclose a cause of action. It is not the function of a judge on a certification hearing to determine the merits of the case by weighing evidence. In Hollick, supra, McLachlin C.J.C., at 29, stated the following:
… any inquiry into the merits of the action will not be relevant on a motion for certification”) …. Rather the certification stage focuses on the form of the action. The question at the certification stage is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action ….
In Campbell v. Flexwatt
Corp. (1997), 44 B.C.L.R. (3d) 343 (
The plaintiffs argue, however, that irrespective of any duty to inspect, the named municipal defendants had a broader duty to ensure that unsafe products were not used. The appellants further argue that all of the named municipal defendants and the Province breached this broader duty.
Whether the City of Vancouver, or any of the other named defendants, owed a duty of care to the plaintiffs is a triable issue. If a duty of care was owed, whether it was subsequently breached is also a triable issue. Therefore, I am of the opinion that a cause of action does exist against the appellant City.
He went on to state that the mere fact that determining the duty of care to the plaintiffs may be more difficult as far as that particular defendant was concerned is not a bar to certification as long as the plaintiffs are able to show that there is some evidence in support of the cause of action.
[22] It is their position that in so doing the defendants also violated the provisions of both the Trade Practice Act and the Competition Act.
[23] The Act requires that the plaintiffs prove that there are issues common to all class members. In Hoy v. Medtronic Inc. (2001), 94 B.C.L.R. (3d) 169 (S.C.), 2001 BCSC 1343, the plaintiffs alleged that implanted electronic pacemakers were negligently manufactured by the defendant. The defendant raised a number of issues. The main arguments raised by the defendant related to the question of common issues. In other words, it was argued that there were no issues common to the class and that individual issues were predominant over common issues. It was also argued that the plaintiffs had failed to meet the preferable procedure requirement under s. 4(1)(b) of the Act. The latter was the main issue on appeal. Kirkpatrick J., at 180, dealt with the issue as follows:
The Class Proceedings Act requires that the plaintiff demonstrate that the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members. Counsel for the plaintiff is in possession of a considerable amount of evidence relating to claims against Medtronic in the United States. They have formulated the proposed common issues accordingly. In particular, I regard the issues of the duty of care, standard of care, and breach of the standard of care as issues common to all potential class members. Resolution of those issues would move the litigation forward and would satisfy the requirements of s. 4(1)(c) of the Act.
And further, at 185:
I note, however, that common issues concerning duty of care, breach of the standard of care, and punitive damages are, generally speaking, unaffected by the individual issues which will undoubtedly arise. I do not perceive that, in respect of the common issues, a class action would become the “monster of complexity and cost” feared by Esson C.J.S.C. (as he then was) in Tiemstra v. Insurance Corp. of British Columbia (1996), 22 B.C.L.R. (3d) 49 (B.C.S.C.); affirmed (1997), 38 B.C.L.R. (3d) 377 (B.C.C.A.).
The decision was upheld by the Court of Appeal (see 2003 BCCA 316).
[24] The Act states that a class proceeding must be the preferable procedure for the fair and efficient resolution of the common issues: see s. 4(1)(d). In determining whether a class proceeding is preferable, the court must consider the provisions of s. 4(2) of the Act. Whether or not a class proceeding is preferable will of course depend upon the circumstances of each case. In Hollick, the Court concluded that the case was not appropriate for certification because a class proceeding was not the preferable procedure for the resolution of the common issues. The Court questioned the ability of the plaintiffs to prove a common defect. The Court found that the common issues were negligible since there was no basis for concluding that the pollution complained of was spread evenly over a geographic area so as to affect all proposed members of the class. In determining whether the preferability test has been met, a court must consider the whole of the circumstances. On that issue, McLachlin C.J.C. made the following comments at 35-36:
The question of preferability, then, must take into account the importance of the common issues in relation to the claims as a whole. It is true, of course, that the Act contemplates that class actions will be allowable even where there are substantial individual issues: see s. 5. It is also true that the drafters rejected a requirement, such as is contained in the American federal class action rule, that the common issues "predominate" over the individual issues: see Federal Rules of Civil Procedure, Rule 23(b)(3) (stating that class action maintainable only if "questions of law or fact common to the members of the class predominate over any questions affecting only individual members"); see also British Columbia Class Proceedings Act, s. 4(2)(a) (stating that, in determining whether a class action is the preferable procedures, the court must consider "whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members"). I cannot conclude, however, that the drafters intended the preferability analysis to take place in a vacuum. There must be a consideration of the common issues in context. As the Chair of the Attorney General's Advisory Committee put it, the preferability requirement asks that the class representative "demonstrate that, given all of the circumstances of the particular claim, [a class action] would be preferable to other methods of resolving these claims and, in particular, that it would be preferable to the use of individual proceedings" (emphasis added): M. G. Cochrane, Class Actions: A Guide to the Class Proceedings Act, 1992 (1993), at p. 27.
[25] In Hoy, supra, the Court of Appeal, in upholding the decision of Kirkpatrick J. on the preferability issue, stated that in determining whether a class proceeding is preferable the chambers judge must evaluate the proposed common issues in the context of the claims as a whole. Finch C.J.B.C. made the following statements at ¶ 49 and 50:
[49] …. [The chambers judge] then found at ¶ 78 that the common issues were “unlikely to be overwhelmed by individual issues to the degree found in Tiemstra, supra, or Bittner, supra.” She said the determination of the common issues would advance the claim “to a significant degree” (my [i.e. Finch C.J.B.C.’s] emphasis).
[50] … I understand this to mean that in her view the determination of the common issues would advance the claims to an appreciable extent, and that individual issues would likely be less important aspects of the claims. In other words, the common issues predominate over those affecting only individual claims.
(Emphasis added)
CONCLUSIONS
Whether the Pleadings disclose a Cause of Action
[26] There is no doubt that based upon the pleadings the plaintiffs have a viable cause of action for a claim for negligence in the manufacture and testing of the defendants’ products. The plaintiffs have filed evidence by which they have alleged that the defendants negligently manufactured and distributed without adequate warning the adverse nature of their products.
[27] The plaintiffs have also argued that the defendants have violated the provisions of both the Trade Practice Act and the Competition Act. In October 2002 the defendants made an application to strike out the plaintiffs’ pleadings on the basis that they failed to disclose material facts. R. Holmes J. allowed the application in part and held that the claim for breach of warranty would be stricken in 30 days if the plaintiffs did not amend the pleadings to claim a complete cause of action for breach of warranty. The plaintiffs have amended their pleadings by alleging that the defendants breached the express or implied warranties by selling products that promoted, rather than retarded mildew growth or discoloration and degradation of the wood surfaces to which they were applied. However, he went on to decide that the plaintiffs failed to bring themselves within s. 22 of the Trade Practice Act in that there were no material facts to support the plaintiffs acting in reliance upon any “deceptive” or “unconscionable” act. He found that under the Act a claim may be supported by the mere silence of a manufacture with knowledge of a product defect. He went on to conclude that there was a sufficient basis to sustain a pleading under that Act (see ¶ 29-34). It should also be noted that under s. 3(1) of the Act a deceptive act or practice is defined as an “oral, written, visual, descriptive or other representation, including a failure to disclose and any conduct having the capability, tendency or effect of deceiving or misleading a person. Thus, the definition of a deceptive act is extremely broad. While the pleadings comply with the provisions of the Trade Practice Act and the Competition Act, for the purposes of certification this essentially is a negligence case and the allegations under the statutes appear to be somewhat secondary.
[28] The defendants have advanced numerous defences. While the defendants have seriously challenged the plaintiffs’ allegations, it must be noted that at this stage of the proceedings it is not the function of this Court to assess the evidence.
Whether there is an Identifiable Class of Two or more Persons
[29] As the Court stated in Western Canada Shopping Centres Inc., supra, a class must be capable of clear definition. The defendants have argued that the proposed class definition in this case is over-inclusive and fails to state objective criteria by which members of a class could be identified. It is argued that since the plaintiffs have proposed a commencement date of January 1991 the class can have no clear definition. It is further argued that there is no evidence to support claims for breach of warranty under the Trade Practice Act or under s. 36 of the Competition Act. As McLachlin C.J.C. stated in Western Canadian Shopping Centre Inc., supra, it is important that class definition must be determined at the outset of the litigation since class definition is critical because it identifies the individuals entitled to notice, entitled to relief (if relief is awarded), and bound by the judgment (¶ 38).
[30] There is no doubt that at this stage there are at least two class members. There is no onus on the plaintiffs to state with exactitude the proposed size of the class. While there may be some concern that Mr. Dennis is a non-resident, it should be noted that that, in and of itself, is not a bar to certification. The non-residency issue was addressed by Kirkpatrick J. in Hoy, supra. She made the following comments at ¶ 34:
The utility of a non-resident sub-class is also supported by the fact that Medtronic Canada is a wholly owned subsidiary of Medtronic USA which manufactured all of the product in issue. Medtronic Canada has a head office in British Columbia. Medtronic Canada distributed the product in Canada. I find later in these reasons that the issues of duty of care, standard of care, and breach of the duty of care are common issues. They are issues which will not be made more complicated by the inclusion of non-resident class members. There is no doubt that the issues are complex. However, that complexity stands in favour of the issues being decided at one trial rather than in multiple trials with potentially conflicting results and far greater cumulative cost.
[31] It is of no consequence at this stage at least that the plaintiffs have proposed a commencement date of January 1991. If a plaintiff is unable to bring a claim within the time frame then the court can make the appropriate order. This is really an evidentiary issue.
Whether the Claims of the Class Members raise common issues
[32] It is of course fundamental that the claims raise common issues regardless of whether or not the common issues predominate over issues affecting only individual members: see s. 4(1)(c). There is no doubt that there are a number of individual issues that arise from the evidence. However, I cannot conclude that they predominate over issues that are common. The overriding common issue is whether the defendants’ products were the cause of the alleged damage to the plaintiffs’ properties. The defendants have relied upon Bittner v. Louisiana Pacific Corp. (1997), 43 B.C.L.R. (3d) 324 (S.C.), and Gariepy v. Shell Oil Co. (2002), 23 C.P.C. (5th) 360 (Ont. S.C.J.). In Bittner, the application for certification was dismissed on the grounds that questions affecting individual class members would predominate over questions common to the class. The Court concluded that many issues would have to be determined through individual trials and that the resolution of common issues would not materially advance each class member’s claim for damages. The facts are worth noting. The plaintiffs had alleged that the defendants had negligently designed and manufactured wood siding which caused damage to the plaintiffs’ homes. However, there were a number of issues that could only be resolved on an individual basis. Since 1985, the product had been continually and materially changed. It had been manufactured in the United States at 8 different plants. Each plant varied in terms of the wood source process implementation and finishing details (see p. 326). The Court concluded that the
.. complexities concerning the differences in the manufacture of the siding, as well as the distinctions between the types of siding and their different uses, as well individual issues concerning storage, installation, and maintenance, raise the thorny problem as to whether the question which the plaintiffs characterize as common to the class will in fact depend on individual proof in order to establish liability.
In Gariepy, supra, the plaintiffs sought to certify an action which was based primarily in negligence against manufacturers of resin used in plumbing systems. The allegations were that the resin in fittings and pipes was unsuitable for water plumbing systems. The application was dismissed on the grounds that the class was not clearly identifiable and also on the basis that the plaintiffs had not established that the resolution of the common issues would significantly advance the litigation. The Court went to state that in determining whether the defendant’s products were inherently defective, a trial would not advance the overall determination of the liability issue, for other factors could be responsible for the failure of the pipes in any given case.
[33] In Bittner it was clear that the plaintiffs had failed to satisfy the Court on the commonality issue. I agree with plaintiffs’ counsel that the decision in Gariepy simply cannot be reconciled with the general trend towards certification. In determining the issue of commonality, I am mindful of the words of Cumming J.A. in Campbell, supra, wherein he made the following comments at ¶ 52 - 53:
[52] This question of commonality of issues lies at the heart of a class proceeding, for the intent of a class proceeding is to allow liability issues to be determined for the entire class based on a determination of liability of the defendants to the proposed representative plaintiffs.
[53] When examining the existence of common issues it is important to understand that the common issues do not have to be issues which are determinative of liability; they need only be issues of fact or law that move the litigation forward. The resolution of a common issue does not have to be, in and or itself, sufficient to support relief. To require every common issue to be determinative of liability for every plaintiff and every defendant would make class proceedings with more than one defendant impossible.
(Emphasis added)
[34] I have no difficulty in determining that the issues raised here are common in that the class members have an interest in common relating to the alleged defects in the defendants’ products. The common issues in this case relate to liability and damages. The plaintiffs’ common complaints relate to the suitability for use of the defendants’ products. The negligence issue is common to all members of the class. At this stage in the proceedings there appears to be no conflict between common issues and those affecting only individual persons.
Whether a Class Proceeding would be the preferable procedure
[35] The defendants’ main argument on this issue is that there is a viable alternative method of addressing the plaintiffs’ concerns and complaints, namely, the technical services department. I have no doubt that the technical services departments have assisted many people and have resolved many complaints. However, it should be noted that customer service departments such as those operated by the defendants are in-house departments that lack any meaningful form of independence. It cannot be said that the departments are a substitute or preferable to a class action that is capable of dealing with issues that are common to the class as a whole. In Chace v. Crane Canada Inc. (1997), 44 B.C.L.R. (3d) 264 (C.A.), the defendants argued that of the almost 3,000 claims made against their product, over 2,000 had been satisfactorily resolved without the necessity of litigation. The Court upheld the chambers judge’s decision to certify the action primarily on the grounds that the Act permits the determination of common issues for the entire class, common issues for sub-classes and individual issues all at separate times (at 273). In dealing with the question of preferability, the Supreme Court said in Hollick, supra, that it must take into account the importance of the common issues in relation to the claims as a whole and that certification is appropriate even where there are substantial individual issues. Clearly a class procedure will address the concerns of the class members in a far more expeditious manner than the proliferation of individual law suits.
[36] The judicial trend is to certify class actions in order to avoid a multiplicity of law suits. In this case it makes no sense both from the perspective of judicial economy and individual accessibility to the courts to compel each plaintiff to commence separate law suits. In each case the plaintiffs’ allegations and the defences to those allegations would be almost identical. In other words, issues of law and fact would be common. This is not a case in which individual issues would overwhelm common issues as was the case in Tiemstra v. Insurance Corp. of British Columbia (1997), 38 B.C.L.R. (3d) 377 (C.A.). This is a classic case in which individual law suits cannot be reasonably justified. In this case a class proceeding will obviously move the litigation forward. The plaintiffs have satisfied the requirements of the Act. There will be an order that the action be certified for class action. The class shall be defined as follows:
(a) who purchased and applied or caused to be applied, on or after January 1, 1991, the Defendants’ products Super Liquid Raw-Hide or Natural Seal Plus (the “Products”) to a natural wood exterior surface within British Columbia; or
(b) who have a legal or beneficial interest in a natural wood exterior surface within British Columbia, to which the Products were applied on or after January 1, 1991.
[37] I have some concerns that the proposed common issues are extremely broad. However, I am prepared, at this stage, to certify the negligence issues as set out in the plaintiffs’ written argument. Finally, there will be an order appointing the plaintiffs Leonard Olsen and Paul Dennis as representatives of the class.
[38] In conclusion, the plaintiffs have satisfied the requirements of the Act and there will be an order certifying these proceedings as a class action.
“W.T. Oppal, J.”
The Honourable Mr. Justice W.T. Oppal