The British Columbia Court of Appeal considered whether an omission can constitute a deceptive act or practice under the Business Practices and Consumer Protection Act (BPCPA). Justice Kirkpatrick established that a failure to disclose could qualify as a deceptive act or practice even in the absence of any particular communicated misrepresentation. The appeal was dismissed.
The issue arose in an appeal from a class action certification order. The appellant, Wyeth, manufactured hormone therapy products containing hormones which were associated with an increased risk of breast cancer according to a 2002 Women's Health Institute study. The respondent class consisted of women who were diagnosed with breast cancer after having taken one of the hormone therapy drugs prescribed in Canada during the 27 year class period. The respondent alleged that Wyeth had conducted "deceptive acts or practices" under s.4(1) and s.4(3)(b)(vi) of the BPCPA by failing to "accurately disclose the risks of the hormone therapy" on their product monographs and labels. In doing so, they were alleged to have engaged in a "systemic course of deceptive conduct." The defendant interpreted Chalmers (Litigation Guardian of) v. AMO Canada LTD., [2010] BCCA 560 as allowing for a failure to disclose tied to specific representations. However, the defendant contended that "any claim under the BPCPA must rest on a representation" and that an omission in itself failed to meet this requirement.
The British Columbia Court of Appeal rejected this interpretation as well as the emphasis in Blackman v. Fedex Trade Networks Transport & Brokerage, [2009] BCSC 2001 on the BPCPA's lack of terms such as "failure to disclose" which had been included in its precursor, the Trade Practice Act. Justice Kirkpatrick highlighted the overall purpose of the Act and noted that since the BPCPA was "all about consumer protection...its terms should be interpreted generously in favour of consumers." This view was also held to be consistent with s.8 of the Interpretation Act. Finally, the court interpreted the wording of a "representation...that fails to state a material fact" in s.4(3)(b)(vi) in conjunction with the expansive language of s.4(1) which allows for "an oral, written, visual, descriptive or other representation" as "anticipat[ing] that an omission can constitute a deceptive practice."
Sara Elcombe
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