The Supreme Court of Canada this week dismissed an application by the University of British Columbia (UBC) for leave to appeal to the high court the decision (CanLII) of the BC Court of Appeal regarding the certification of a class action against UBC connected to a freezer failure at a sperm bank within a UBC lab.  In Lam v. University of British Columbia, the appellate court agreed with Lam that his claim raised issues common to other related claimants, which met the criteria for certification.

Lam’s story had some staying power in the media this past summer because of the basis for his claim (plus, quite possibly, because any court decision that repeatedly uses the word “sperm” will be considered newsworthy).  Here is an excerpt from coverage in the Vancouver Sun:

The triggering event in the case was the freezer failure on May 24, 2002, when the supply of electricity to a Forma Scientific Inc. freezer was interrupted when an inadequate circuit breaker tripped.

The freezer was used for storing cells at a temperature below -130 degrees Celsius. The freezer contained sperm samples belonging to Lam and other men who were undergoing chemotherapy or other medical treatments that could adversely affect their reproductive capacity.

The freezer’s security alarm system failed to function and it was without electrical power for some time, rendering the sperm immobile and destroying genetic material.

The freezer was purchased by UBC in July 1987 and was initially used for kidney research. In 1993, it was transferred to the Andrology Lab at the Koerner Pavilion at UBC Hospital. It remained there until Feb. 22, 2001, when it was moved to the lab’s new location at Vancouver General Hospital.

UBC has denied it was negligent, maintaining it met the appropriate standard of care for a sperm storage facility and that sperm donors signed an agreement limiting liability.

Class actions are permitted for the sake of saving parties alot of time and money (see here for more information on class actions from the Canadian Bar Association).  The idea behind a class action is that rather than forcing individual claimants to hire their own lawyers, have separate trials, etc., if the claims are similar enough multiple claimants should be allowed to come together, cut down on legal fees, and go after a large organization that is accused of some wrongdoing through a single representative claimant.  UBC, in this case, argued that Lam’s claim should not be approved as a class action, allowing many others to jump on the bandwagon, while Lam, of course, disagreed. 

The Supreme Court of Canada’s decision here does not necessarily side with Lam in his essential claim against UBC, but rather denies UBC the opportunity to show the high court why the three judges sitting for the BC Court of Appeal got it wrong.  This might be based on whether other, more worthy appeals were thought should be given a chance before the supremes; it’s impossible to say.

Getting this far in litigation is costly for any plaintiff, but generally if certification is ordered the defendant is fairly motivated to settle.  It will be interesting to see whether Lam and others are able to pursue this matter much further, even as a class action, or whether the trip to Ottawa was enough to bring the parties together for a resolution.

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