QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 343 Date: 2010 09 17 Docket: Q.B.G. No. 247 of 2008 Judicial Centre: Saskatoon BETWEEN: SEAN SCHROEDER, ALLISTER CURTIS VEINOT, and ELEANORE SMIROLDO, as Litigation Guardian for Eden Bobyk and DJO CANADA, INC., DJO, LLC, McKINLEY MEDICAL LLC, McKINLEY MEDICAL CORPORATION and CURLIN MEDICAL INC. Defendants Brought under The Class Actions Act, S.S. 2001, c. C‑12.01 Counsel: Douglas Lennox and Robert J. Gibbings, Q.C. for the plaintiffs Gordon J. Kuski, Q.C. and Amanda Quayle for the defendants, DJO Canada, Inc. and DJO, LLC Peter J. Cavanagh for the defendants, McKinley Medical LLC, McKinley Medical Corporation and Curlin Medical Inc. FIAT POPESCUL J. September 17, 2010 [1] By order and judgment dated March 29, 2010, I certified the within action as a class action. DJO Canada, Inc., DJO, LLC, McKinley Medical LLC, McKinley Medical Corporation and Curlin Medical Inc. sought leave to appeal the certification order to the Court of Appeal pursuant to s. 39(3)(a) of The Class Actions Act, S.S. 2001, c. C-12.01. number of grounds of appeal were advanced by the defendants. [2] On August 26, 2010, Chief Justice Klebuc rendered decision on the leave application. The defendants were granted leave to appeal only that portion of the certification order that pertained to the cause of action relating to alleged breaches of The Consumer Protection Act, S.S. 1996, c. C-30.1 (“the CPA”). All other aspects of the leave to appeal application, including that relating to the breach of duty of care cause of action, were dismissed. See DJO Canada, Inc. v. Schroeder, 2010 SKCA 100 (CanLII), [2010] S.J. No. 505 (QL). [3] The situation that now exists is that the class action will definitely advance, although, until after the appeal concerning the CPA cause of action is finally determined, it is not known whether the class action will proceed on the basis of one cause of action or two. [4] Counsel for the plaintiffs requested case management conference call to address the issue of the next steps that should now be taken. conference call was convened on September 16, 2010, at which time the parties were given the opportunity to speak to the issue of whether it is appropriate to move the matter forward at this time, given that there is an appeal pending albeit on only one aspect of the certification order. [5] The plaintiffs took the position that steps can now be taken to move this action forward concurrently with the appeal because the Court of Appeal denied leave to appeal the issue of certification itself, and expressly acknowledged that there was cause of action based on breach of duty of care. Furthermore, the plaintiffs point to statement made in Chief Justice Klebuc’s decision where he stated, “Nor should consideration of the question by this Court unduly delay the subject class action.” [6] The defendants, on the other hand, suggest that it is not proper to proceed given that the matter is pending before the Court of Appeal. They contend that the certification order is stayed and it is only the Court of Appeal that has the authority to lift the stay. [7] agree with the defendants’ submission. [8] Rule 15 of The Court of Appeal Rules states, in part: 15(1) ... Unless otherwise ordered by judge, the service and filing of notice of appeal stays the execution of any other judgment or order pending the disposition of the appeal. (2) Where leave to appeal from an interlocutory order is granted, the judge hearing the application may give directions as to staying proceedings. (4) Where the execution of judgment or order is stayed pending an appeal, all further proceedings in the action, other than the issue of the judgment and the taxation of costs under the judgment, are stayed unless otherwise ordered. [9] The fact that leave to appeal was granted on one aspect of the certification order is sufficient to engage Rule 15 and stay the entire judgment pending the disposition of the appeal. In the event that the plaintiffs wish to apply to lift the stay, they may do so by applying to “a judge”, which, in these circumstances is judge of the Court of Appeal. [10] Accordingly, I find that the certification order is stayed pending appeal, subject to the Court of Appeal lifting the stay should it see fit. J. M.D. POPESCUL
A class action was certificated at Queen's Bench on the basis of breaches of The Consumer Protection Act and a breach of duty of care. The defendants were granted leave from the Court of Appeal to appeal the portion of the certification order dealing with alleged breaches of The Consumer Protection Act only. The certification on the basis of duty of care was upheld. As a result, a situation existed where the class action process could continue on only part of the claim until the appeal of consumer protection act issues was heard. HELD: Rule 15 of The Court of Appeal Rules is engaged and the entire certification judgment is stayed pending the disposition of the appeal. If the plaintiffs wish to apply to lift the stay they must do so to a judge of the Court of Appeal.