Mignacca et al. v. Merck Frosst Canada Ltd. et al.

[Indexed as: Mignacca v. Merck Frosst Canada Ltd.]

96 O.R. (3d) 164

Court of Appeal for Ontario,

Rouleau J.A. (In Chambers)

May 11, 2009

Appeal -- Leave to appeal -- Extension of time -- Defendants denied leave to appeal from order granting certification of class proceeding -- Defendants moving for extension of time in which to seek leave to appeal that order to Court of Appeal -- Leave to appeal to Court of Appeal not required -- Appeal lying to Court of Appeal without leave if order denying leave to appeal certification decision was final and to Divisional Court with leave if order was interlocutory -- Defendants granted extension of time for filing notice of appeal in Court of Appeal if they decided that order was final -- Whether case fell within exception to general rule that refusal of leave to appeal cannot be appealed should be resolved by court to which appeal was taken.

The defendants were denied leave to appeal to the Divisional Court pursuant to s. 30(2) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 from an order granting certification of a class proceeding relating to the drug Vioxx (the "leave decision"). After that decision was made, the Saskatchewan Court of Appeal quashed an order certifying a similar class action against the defendants in that province. The defendants sought an extension of time in which to seek leave to appeal the leave decision, arguing that, as a result of the Saskatchewan Court of Appeal's decision, they were facing conflicting decisions as to whether a class action involving Vioxx users was certifiable and that that fact would have been an important consideration in determining whether leave to appeal the Ontario certification decision should have been granted.

Held, the motion for an extension of time for filing a notice of motion for leave to appeal should be dismissed; an extension of time for filing a notice of appeal should be granted.

Once the Saskatchewan Court of Appeal rendered its decision, the defendants brought the present motion promptly. Granting an extension of time would not cause any significant delay in the progress of the action. It could not be said that the proposed appeal was without merit. If the leave decision was a final order, [page165] the appeal was to the Court of Appeal pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and no leave was required. If it was interlocutory, the appeal was governed by s. 19(1)(b) of the CJA and went to the Divisional Court with leave. There was no scenario pursuant to which leave to appeal to the Court of Appeal was required. The question of whether the appeal was without merit because the leave decision was an interlocutory order should properly be decided by a panel of the Court of Appeal should the defendants choose to pursue the appeal by way of s. 6(1)(b) of the CJA. The question of whether this case fell within an exception to the general rule that a refusal of leave to appeal cannot be appealed should also be resolved by the court to which the appeal was taken.

MOTION for an extension of time to seek leave to appeal from the order of Bellamy J., [2008] O.J. No. 4731, 2008 61238 (S.C.J.) denying the leave to appeal order of Cullity J., 2008 37911 (ON SC), [2008] O.J. No. 2996, 295 D.L.R. (4th) 32 (S.C.J.) certifying an action as a class proceeding.

Cases referred to

Denison Mines Ltd. v. Ontario Hydro (2001), 2001 5681 (ON CA), 56 O.R. (3d) 181, [2001] O.J. No. 3870, 150 O.A.C. 387, 15 C.P.C. (5th) 210, 108 A.C.W.S. (3d) 941 (C.A.); Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, [1932] O.J. No. 380, [1932] 4 D.L.R. 580 (C.A.); Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 1996 413 (ON CA), 29 O.R. (3d) 612, [1996] O.J. No. 1772, 135 D.L.R. (4th) 471, 91 O.A.C. 54, 49 C.P.C. (3d) 262, 63 A.C.W.S. (3d) 6 (C.A.); Kefeli v. Centennial College of Applied Arts & Technology, [2002] O.J. No. 3023, 23 C.P.C. (5th) 35, 115 A.C.W.S. (3d) 755 (C.A.); Kohar v. Dufferin- Peel Catholic District School Board, [1999] O.J. No. 3644, 91 A.C.W.S. (3d) 369 (Div. Ct.); Lombard Canada Co. v. Axa Assurance Inc., [2007] O.J. No. 3001, 2007 ONCA 550, 228 O.A.C. 32, 159 A.C.W.S. (3d) 315; Rizzi v. Mavros (2007), 85 O.R. (3d) 401, [2007] O.J. No. 1783, 2007 ONCA 350, 224 O.A.C. 293, 157 A.C.W.S. (3d) 9; Wuttunee v. Merck Frosst Canada Ltd., [2009] S.J. No. 179, 2009 SKCA 43, revg [2008] S.J. No. 324, 2008 SKQB 229, 312 Sask. R. 265

Statutes referred to

Arbitration Act, 1991, S.O. 1991, c. 17, s. 45 [as am.] Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 30(2) [as am.] Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b) [as am.], 19(1)(b) [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 61.03.1 [as am.], 62.02(1.1) [as am.], (4)(a)

Neil Finkelstein, Catherine Beagan-Flood and Karin McCaig, for moving parties. Bonnie A. Tough and Jennifer Lynch, for respondents.

[1] ROULEAU J.A. (In Chambers): -- The moving parties are seeking an extension of time in which they may seek leave to appeal the order of Bellamy J., pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "CJA") and rule 61.03.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [page166] That order denied leave to appeal to the Divisional Court from the order of Cullity J., which granted certification of the class proceeding relating to the drug Vioxx.

Facts

[2] The prescription drug Vioxx was developed, manufactured, marketed and sold in Canada by the moving parties. On September 30, 2004, Vioxx was withdrawn from the market.

[3] Following this withdrawal, class proceedings were commenced in most Canadian provinces on behalf of Vioxx users. The Ontario proceeding was commenced on October 1, 2004 and includes as class members residents from all provinces except Saskatchewan and Quebec.

[4] A similar class proceeding was also commenced in Saskatchewan. On May 29, 2008, Klebuc C.J. certified the proceeding in Saskatchewan: Wuttunee v. Merck Frosst Canada Ltd., 2008 SKQB 229, [2008] S.J. No. 324, 312 Sask. R. 265 (Q.B.). On July 28, 2008, Cullity J. certified the Ontario proceeding.

[5] The moving parties sought leave to appeal the order of Cullity J., pursuant to s. 30(2) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the "CPA"). That section provides that a party may appeal to the Divisional Court from an order certifying a class proceeding, with leave from the Superior Court of Justice.

[6] On November 24, 2008, Bellamy J., sitting as a judge of the Superior Court of Justice, denied the moving parties' motion for leave to appeal to the Divisional Court. In her reasons for denying the leave, Bellamy J. held that "[i]n liberally construing class proceedings legislation", Cullity J. had "applied existing principles of law to the facts of the case facing him, facts which, in essence, were identical or similar to those facing Klebuc, C.J.S. who had no difficulty certifying the class action in Saskatchewan": at para. 25.

[7] On March 30, 2009, the Saskatchewan Court of Appeal quashed the order certifying the Saskatchewan action. The court concluded that "the learned certification judge erred in finding that the respondents had established an identifiable class, in defining common issues, and in establishing that a class action would be the preferable procedure within the meaning of s. 6 of The Class Actions Act": Merck Frosst Canada Ltd. v. Wuttunee, [2009] S.J. No. 179, 2009 SKCA 43, at para. 167.

Positions of the Parties

[8] The moving parties submit that, as a result of the Saskatchewan Court of Appeal's decision, they are facing conflicting decisions [page167] as to whether a class action involving Vioxx users is a certifiable proceeding that should be allowed to proceed. They argue that this fact would have been an important consideration in determining whether the leave ought to have been granted. In their view, Bellamy J. would have granted the leave had the Saskatchewan Court of Appeal decision been rendered prior to her decision. In essence, the moving parties argue that, in the context of class action litigation involving overlapping national classes, it is simply unfair to have what they submit are conflicting decisions involving the same product, substantially the same claims and substantially the same plaintiffs.

[9] The time period for filing a notice of motion for leave to appeal Bellamy J.'s order expired some four months ago. On this motion, the moving parties are seeking an extension of time so that they may now seek leave to appeal to this court.

[10] The respondents submit that this motion should fail on the basis that the appeal is without merit and that this case does not constitute an exception to the general principle that no appeal lies from a decision refusing leave to appeal. The respondents further argue that, in any event, any review of Bellamy J.'s order should be brought before the Divisional Court with leave, pursuant to s. 19(1)(b) of the CJA.

Test for Granting an Extension of Time

[11] In considering whether to exercise its discretion to extend the time for the filing of a notice of appeal, a court generally considers the following factors: (1) whether the appellant formed an intention to appeal within the relevant period; (2) the length of the delay and explanation for the delay; (3) any prejudice to the respondent; and (4) the merits of the appeal. The court also considers whether the justice of the case requires the granting of the extension: see Kefeli v. Centennial College of Applied Arts & Technology, [2002] O.J. No. 3023, 23 C.P.C. (5th) 35 (C.A.), at para. 14, and Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401, [2007] O.J. No. 1783 (C.A.), at para. 16.

Intention to appeal, delay and prejudice to the respondent

[12] In the present case, the moving parties have adequately explained both the delay and the reason why they only developed [page168] the intention to appeal after the appeal period had expired. Once the Saskatchewan Court of Appeal rendered its decision, the moving parties promptly brought the present motion.

[13] In my view, there is little prejudice flowing from the delay. The claim was issued in October 2004 and the delay in appealing the decision of Bellamy J. is of only four months. There has been no decision on the merits of the action and, further, there is a motion for leave to appeal pending in this court on the related matter of whether a stay of the proceedings ought to have been granted by Cullity J. Granting the extension of time in this instance will not cause any significant delay in the progress of the action.

Merits of the appeal

[14] Principally, the respondents oppose the extension of time on the basis that the appeal lacks merit. In their view, the motion should fail on this ground alone. They make three submissions in that regard.

[15] First, the respondents maintain that no appeal lies from a decision refusing leave to appeal, except in the rare circumstance where the judge refusing leave has mistakenly declined jurisdiction. Even if they were to accept that this court intended to broaden this exception by stating in Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 1996 413 (ON CA), 29 O.R. (3d) 612, [1996] O.J. No. 1772 (C.A.), at para. 36, that "there must be an avenue of redress in exceptional cases" where leave to appeal has been refused, the respondents submit that the facts of this case do not constitute such an "exceptional" case.

[16] Further, the respondents submit that the limited appellate review referred to in Hillmond is properly exercised by the Divisional Court pursuant to s. 19(1)(b) of the CJA. In their view, neither the certification order nor the refusal to grant leave to appeal that order finally disposed of the moving parties' substantive rights. The respondents submit, therefore, that the moving parties are in the wrong court.

[17] Third, the respondents maintain that the extension of time ought not to be granted because the Saskatchewan Court of Appeal's decision has little or no bearing on Bellamy J.'s decision. Although the Saskatchewan and Ontario class actions involve the same product, they are, in the respondents' view, framed differently. It is the way that the Saskatchewan action was pleaded that led to the certification order being quashed by the Court of Appeal. In the respondents' view, therefore, nothing has changed [page169] as a result of the Saskatchewan Court of Appeal's decision and the moving parties' proposed appeal has no merit.

[18] Dealing with the respondents' third point, it must be kept in mind that the merits that I need to consider in this matter are the merits of the appeal from Bellamy J.'s decision on the leave to appeal motion. A significant factor on a leave to appeal motion is, as provided in rule 62.02(4)(a), whether "there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal". The reasons of both Cullity J. and Bellamy J. refer to the similarity between the Saskatchewan and Ontario actions. It may well be that, as submitted by the moving parties, Bellamy J. would have viewed the matter differently had the decision of the Saskatchewan Court of Appeal quashing the certification order issued prior to her rendering her decision. I am not, therefore, prepared to say that the proposed appeal is without merit.

[19] The more difficult issue is the question of procedure. There is considerable confusion as to whether a refusal to grant leave to appeal can be appealed and, if so, what court to apply to and what procedure to follow.

[20] There are two major steps in resolving this issue. The first step is for the moving party to decide whether the refusal to grant leave was an interlocutory or final order. Only then can the proper court and procedure be determined. Once in the proper forum, the moving party must then show that the case fits within the exception to the general rule that a refusal to grant leave to appeal cannot be appealed: see Hillmond, supra; Denison Mines Ltd. v. Ontario Hydro (2001), 2001 5681 (ON CA), 56 O.R. (3d) 181, [2001] O.J. No. 3870 (C.A.); and Lombard Canada Co. v. Axa Assurance Inc., 2007 ONCA 550, [2007] O.J. No. 3001, 228 O.A.C. 32 (C.A.).

[21] Many refusals of leave to appeal motions are clearly interlocutory. For example, a refusal of a leave motion brought pursuant to s. 19(1)(b) of the CJA is clearly interlocutory as it seeks to review an order that itself was interlocutory. In such a case, the appropriate route is to seek leave to appeal from the refusal to the Divisional Court, again pursuant to s. 19(1)(b) of the CJA: see Kohar v. Dufferin-Peel Catholic District School Board, [1999] O.J. No. 3644, 91 A.C.W.S. (3d) 369 (Div. Ct.).

[22] However, not every refusal of leave to appeal to the Divisional Court is necessarily an interlocutory order. Where, as in this case, a statute provides a right of appeal to the Divisional Court with leave of the Superior Court of Justice, the question of whether the refusal to grant leave is an interlocutory or final order will depend on whether the refusal meets the definition of a final order articulated by this court in [page170] Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, [1932] O.J. No. 380 (C.A.). For example, this court in Denison Mines found that the refusal to grant leave to appeal pursuant to s. 45 of the Arbitration Act, 1991, S.O. 1991, c. 17 was a final order.

[23] When considering the appropriate appeal route in this case, it must be recalled that Bellamy J. was sitting as a Superior Court judge and not as a single judge of the Divisional Court: see s. 30(2) of the CPA and rule 62.02(1.1). The rules governing the procedure for appeal are, therefore, the rules that generally apply to an appeal from an order of a Superior Court judge. Where the order is final, the appeal is to the Court of Appeal pursuant to s. 6(1)(b) of the CJA and no leave is required. Where the order is interlocutory, the appeal is governed by s. 19(1)(b) of the CJA and goes to the Divisional Court with leave.

[24] Applying these principles to the present case, there is no scenario pursuant to which leave to appeal to this court would be required. Therefore, I see no basis for granting an extension of time for filing a notice of motion for leave to appeal to this court. If the moving parties consider that Bellamy J.'s order is final, then the appeal, if any, is to this court as of right. If they consider the order to be interlocutory, then the appeal, if any, lies to the Divisional Court with leave.

[25] The respondents have argued that I should find that the appeal is without merit because Bellamy J.'s order is interlocutory. In the circumstances, I consider that this issue should properly be decided by a panel of this court, should the moving parties choose to pursue the appeal by way of s. 6(1)(b) of the CJA.

[26] The question of whether this case falls within an exception to the general rule that a refusal of leave to appeal cannot be appealed will be resolved by the court to which the appeal is taken. Deciding the appropriate principles and then applying these principles to the case are matters properly addressed at the hearing of the appeal or on a motion to quash. Different considerations may well apply depending on the nature of the case and whether the order is final or interlocutory.

Conclusion

[27] Should the moving parties conclude that the order is final and that their appeal lies to this court, I grant an extension of the time for filing the notice of appeal to May 21, 2009. If this appeal route is taken by the moving parties, the respondents are at liberty to bring a motion seeking to quash the appeal should [page171] they be of the view that Bellamy J.'s order is not a final order. As well, they are free to take the position, on appeal or in a motion to quash, that the order of Bellamy J. is not appealable pursuant to the principles outlined in Hillmond and Denison Mines. I should not, therefore, be taken to have decided these issues. If they are raised, they will be dealt with by a panel of this court.

[28] If the moving parties decide to proceed in the Divisional Court on the basis that the order is interlocutory, they will have to bring the appropriate proceedings in that court.

[29] In the circumstances, I make no award as to costs.

Order accordingly.