Stanway v. Wyeth Canada Inc., 2012 BCCA 260

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."

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Sara Elcombe

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Burrell v. Metropolitan Entertainment Group, 2011 NSCA 108

In Burrell v. Metropolitan Entertainment Group, the Nova Scotia Court of Appeal considered whether casino operators and public regulators owed either a statutory of common law duty of care to a gambling addicts.

The appellant became addicted to gambling and from between 1995 and 2003 he lost approximately $500,000 at the respondent’s casino. In 2004, at the request of the appellant, the respondent served the appellant with notice to stay away from the casino pursuant to s. 3(1) (e) of the Protection of Property Act, R.S.N.S. 1989, c. 363. This section makes it an offence to enter the premises when prohibited by notice. The notice excluding the appellant was renewed every six months.

Seeking to recover his losses prior to the 2004 notice, the appellant argued that the respondents had a duty of care to not permit him to gamble, either statutorily or at common law.  He argued that provisions in the Gaming Control Act, as well as Casino Regulations section 20(1), since repealed, which required casino operators to "implement policies and procedures" to identify and exclude gambling addicts, gave rise to such a duty.

Fichaud JA., writing for the Court, held that a casino operator did not owe a general common law duty of care to gamblers. However, once the casino undertook to exclude the appellant or if there was individually targeted promotion it created exceptional circumstances that could give rise to a duty of care. On the facts of the case, the appellant did not have a valid claim in negligence; his losses had pre-dated his exclusion from the casino, thereby lacking sufficient proximity to the duty of care owed, and even if general casino advertising to the public gave rise to a prima facie duty of care to all gamblers, the decision to allow casino gambling was a governmental policy choice, not an operational choice, and therefore did not satisfy the second stage of Anns.

December 2, 2011
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Heather Palin & Kai Sheffield
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DJO Canada Inc v. Schroeder, 2011 SKCA 106

The Saskatchewan Court of Appeal determined that the warranties described in s.48 of the Saskatchewan Consumer Protection Act (the “CPA”) can only be deemed to have been given by a manufacturer when a consumer product is “sold by a retail seller.” Section 50(2) of the CPA deems certain warranties described in s.48 to have been given by manufacturers. The court held that s.50(2) is not a freestanding provision and does not independently impose warranty obligations. Accordingly, the requirement in s.48 that a product be sold by a retail seller also applies to warranties deemed to be given by manufacturers under s.50(2).

Schroeder et al alleged that the manufacturers of pain pumps breached their statutory warranties under the CPA. The pain pumps were sold to the patients by a hospital. The court determined that in order to take advantage of the warranties described in s.48 the pain pumps had to have been sold by a retail seller. The wording of s.48 “clearly indicates that the warranties described therein are considered to be given by a retail seller only when a consumer product is ‘sold by a retail seller.’” Further, the court held that s.50(2), which deems certain of the s.48 warranties to have been given by manufacturers, is not a freestanding provision and cannot independently impose warranty obligations. It follows that there can be no manufacturer’s warranty if there is no retail seller’s warranty. As a retail seller is necessary for the existence of a retail seller’s warranty, Schroeder et al will have to show at trial that the hospital was a “retail seller.”

According to the court, the use of the term “consumer” in s.50(2), and the expansion of the definition of “retail seller” in s.50(1), confirms their interpretation of the CPA. This is because a “consumer” is defined in the CPA as someone who buys a consumer product “from a retail seller.” It is also because the expansion of the definition of “retail seller” per s.50(1) would not be necessary if s.50(2) was intended to independently impose warranty obligations on manufacturers.

Finally, the court determined that s. 64 of the CPA, which describes those who are entitled to recover damages for a breach of warranty, does not create warranties or warranty obligations. The section only specifies who can claim damages if there is a breach.

September 21, 2011
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Kaitlind de Jong & Steve Holinski
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