Executive Summary: Key Legal and Evidentiary Issues

• Appeal sought from an interlocutory adjournment of a class action certification application was found to be premature, as no final certification order had yet been made.

• The court accepted that criteria for an extension of time to seek leave (good faith intent to appeal, notice, and lack of prejudice) were met, but held that the proposed appeal lacked merit.

• Central procedural issue concerned the scope of a judge’s discretion under s. 5(6) of the Class Proceedings Act to adjourn a certification hearing to permit amendments to the pleadings, class definition, and common issues.

• The court emphasized that allowing an appeal at this stage would encourage multiple, fragmented appeals and disrupt the efficient completion of the certification process.

• Alleged prejudice from further delay was rejected, given the chambers judge’s long-standing case management role and the absence of a prior argument that delay justified dismissal of certification.

• The court confirmed that any concerns about the reasons leading to the adjournment can be raised on an appeal from a final certification order, if and when certification is granted or refused.

Background and parties

JUUL Labs Canada, Ltd. (JLC) and JUUL Labs, Inc. (JLI) are the applicants and appellants, and defendants in a proposed class action. The individual plaintiffs, Owen Mann-Campbell and Robert Osborn, are the respondents and proposed representative plaintiffs. Altria Group, Inc., a tobacco company holding a significant stake in JLI, is also a respondent and defendant in the underlying proceeding. The appeal arises from a chambers order in the Supreme Court of British Columbia made in the context of a contested class certification application.

Underlying class action allegations

The proposed class action targets JUUL-branded e-cigarette products sold in Canada. JLI, a US company, designs, manufactures and sells JUUL devices, and JLC, its Canadian subsidiary, is the only entity licensed to sell JUUL products in Canada. The plaintiffs say they became users of JUUL products after seeing promotional materials and allege they developed nicotine addictions as a result. They claim that JUUL products were falsely marketed as desirable, safe, and a healthier alternative to smoking, despite knowledge of the risk of addiction and other health harms. Altria is alleged to have conspired with the JUUL entities to market and promote JUUL products, and the proposed class includes persons who purchased and/or used JUUL products in Canada during a defined class period.

Procedural history leading to the appeal

The plaintiffs filed their notice of civil claim on September 30, 2019, later amending it multiple times, including substituting the named plaintiff and adding Altria as a defendant. They then brought a notice of application for certification of the action as a class proceeding, with the class period running from August 1, 2018 to a date to be fixed by the court. The certification application was hard-fought and proceeded over several days before a chambers judge, who reserved judgment. The judge issued detailed reasons analyzing the statutory certification criteria and found that many of the requirements for certification were met. However, the judge concluded that the notice of civil claim, the class definition, and the proposed common issues required refinement. Relying on s. 5(6) of the Class Proceedings Act, the judge adjourned the certification application to allow the plaintiffs an opportunity to amend. The continuation of the certification hearing was scheduled for January 2026. The JUUL entities, treating the reasons as effectively determinative, filed a notice of appeal. Once the order was settled, it became clear that the operative order was only an adjournment, not a grant or refusal of certification.

Issues before the Court of Appeal

Before the Court of Appeal, the JUUL entities sought two forms of relief: an extension of time to apply for leave to appeal the adjournment order, and leave to appeal that adjournment order. The key questions were whether the criteria for an extension of time were met, whether the proposed appeal from the adjournment had sufficient merit to justify leave, and whether it was appropriate, from the standpoint of the interests of justice and the class action regime, to entertain an appeal at this interlocutory stage. The appellants argued that the chambers judge should have dismissed the certification application rather than adjourning it, and that in giving detailed guidance on the form of amendments the judge allegedly “entered into the arena,” thus exceeding the proper use of s. 5(6).

The court’s analysis

The court accepted that, apart from the merits, the Davies v. C.I.B.C. criteria for an extension of time were satisfied: the JUUL entities had always manifested a bona fide intention to appeal, they had notified the plaintiffs of that intention, and there was no undue prejudice to the plaintiffs from the delay in formally seeking leave. However, the court held that the underlying application for leave to appeal was not meritorious and therefore dismissed both the extension of time and leave applications together. Applying the Goldman, Sachs & Co. v. Sessions leave criteria, the court concluded that the proposed appeal was premature. The certification process was still underway, with the adjournment designed to permit targeted amendments under s. 5(6) of the Class Proceedings Act. Allowing an appeal at this stage would encourage multiple, piecemeal appeals and would likely disrupt the efficient completion of the certification hearing. The court noted that the chambers judge had been case-managing the proceeding since 2020 and was well-versed in its history. The JUUL entities had not argued before the chambers judge that delay alone justified dismissing certification, and the court was not persuaded that the additional period required to complete submissions and obtain a final certification ruling would cause them prejudice. The court recognized that the real concern for the JUUL entities was that, if the plaintiffs amended in line with the reasons, certification would likely be granted. However, that prospect did not justify an immediate appeal from the adjournment. The court emphasized that, if the judge ultimately grants certification, the defendants will then have a full right of appeal, including the ability to challenge both the reasons that led to the adjournment and the final certification order.

Outcome and implications

The court dismissed the applications for an extension of time and for leave to appeal. As a result, the immediate winners in this appellate decision are the respondents: the proposed representative plaintiffs, Owen Mann-Campbell and Robert Osborn, and the defendant Altria Group, Inc. The adjournment order stands, and the certification application will proceed to its resumed hearing where the plaintiffs can attempt to refine the pleadings, class definition and common issues as directed. No damages were awarded, and the decision does not specify any quantified costs award or monetary amount in favour of any party. The ruling signals that attempts to appeal mid-stream, interlocutory decisions in class action certification—particularly adjournments under s. 5(6) meant to facilitate refinement—will generally be viewed as premature, with parties expected to wait for a final certification order before engaging the appellate process.