Executive Summary: Key Legal and Evidentiary Issues

• Janssen Inc. and Johnson & Johnson applied under section 29 of the Court of Appeal Act to cancel a chambers order quashing their notice of appeal.
   
• Central to the application was whether section 36(1) of the Class Proceedings Act permits an appeal as of right from an order made under section 17(2) of that Act.
   
• Obiter comments in Nippon Yusen Kabushiki Kaisha v. Ewert were at issue, specifically whether they were authoritative and properly followed by the chambers judge.
   
• Questions of horizontal stare decisis arose regarding whether one division of the Court of Appeal must follow the reasoning of another division.
   
• The standard of review for cancelling a chambers order required Janssen to show the justice was wrong in law, wrong in principle, or misconceived the facts.
   
• Underlying the application was a broader class proceeding brought by the Province of British Columbia against pharmaceutical manufacturers over the opioid epidemic.
   

Facts of the case

Janssen Inc. and Johnson & Johnson (together, "Janssen") were defendants in a class proceeding commenced by the Province of British Columbia to recover health care, pharmaceutical, and treatment costs related to prescription opioids dating back to 1996. The Province alleged that the wrongful conduct of pharmaceutical manufacturers, including Janssen, caused or contributed to the opioid epidemic. The proceeding was certified in January 2025, and an appeal from the certification decision was dismissed in Noramco LLC v. British Columbia, 2026 BCCA 272. In October 2025, several defendants brought document production applications, heard over five days in chambers. Janssen was the only defendant to seek document discovery from class members under section 17(2) of the Class Proceedings Act. Justice Ross dismissed Janssen's application, along with those of the other defendants, in reasons indexed as British Columbia v. Apotex Inc., 2026 BCSC 209. Janssen did not seek leave to appeal that decision, asserting it had an appeal as of right. The Province applied to quash Janssen's notice of appeal, and Butler J.A. granted that application in Janssen Inc. v. British Columbia, 2026 BCCA 233, finding Janssen had no right of appeal from an order made under section 17(2) and that its notice of appeal was a nullity. Janssen then applied to the Court of Appeal, under section 29 of the Court of Appeal Act, to cancel that order.

Policy and legislative provisions at issue

Two provisions framed the dispute. Section 13 of the Court of Appeal Act sets out the Court's appellate jurisdiction, providing that an appeal may be brought from an order of the Supreme Court or a judge of the Supreme Court, subject to exceptions, including that an appeal may not be brought from a limited appeal order without leave, and that where another enactment provides for no appeal or a limited right of appeal, that enactment prevails. Section 36(1) of the Class Proceedings Act specifies the orders from which any party may appeal to the Court of Appeal: an order certifying or refusing to certify a proceeding as a class proceeding; an order decertifying a proceeding; a judgment on common issues; and an order under Division 2 of the Part, other than one determining individual claims of class or subclass members. An order under section 17(2), which allows a defendant with leave to discover class members after discovery of the representative plaintiff, is not listed among the appealable orders in section 36(1). Janssen argued that Butler J.A. erred in interpreting section 36(1) by relying on unrelated amendments to the Court of Appeal Act, by failing to apply the modern rule of statutory interpretation, and by treating the discretionary nature of the underlying order as relevant to appealability. The Province, by contrast, framed the central issue not as statutory interpretation at large, but as whether Butler J.A. erred in treating the obiter in Ewert as authoritative and dispositive.

Reasoning and analysis

Justice Francis, writing for the division, characterized Janssen's framing of the issue as unhelpful, noting that Janssen's approach effectively sought a rehearing of arguments already disposed of by Butler J.A. and avoided the real basis for the quashing decision: prior authoritative jurisprudence of the Court. The Court traced a line of authority beginning with Coburn and Watson's Metropolitan Home v. Bank of Montreal, through Coburn #2, Coburn #3, and Strohmaier v. K.S., culminating in Ewert, where Harris J.A. observed that if an order is specifically addressed in the Class Proceedings Act but not listed in section 36(1), no appeal lies under section 13 of the Court of Appeal Act. Applying the framework from R. v. Henry, the Court held that the Ewert comments fell within the "wider circle of analysis" intended for guidance and therefore carried authoritative weight, rather than being incidental remarks that could be disregarded. On the question of horizontal stare decisis, the Court held that decisions of coordinate divisions must generally be followed for reasons of judicial comity and legal stability, departing from them only where a prior decision was rendered per incuriam, reflects a manifest slip or error, or is otherwise wrong such that overruling is required, per R. v. R.G.S. The Court found none of these circumstances present with respect to Ewert. Accordingly, Butler J.A. made no legal error in treating the obiter in Ewert as authoritative and in concluding, on that basis, that Janssen had no right of appeal from the section 17(2) order.

Ruling and overall outcome

The Court of Appeal dismissed Janssen's application to cancel the order quashing its appeal, finding no basis to disturb Butler J.A.'s conclusion that the obiter in Ewert was authoritative and correctly applied. The Province, as respondent, was successful on the application. The decision does not record any monetary award, costs order, or damages figure — it addresses only the procedural question of appellate jurisdiction under section 36(1) of the Class Proceedings Act, and no amount was ordered, granted, or awarded to either party.