CITATION: Peter v. Medtronic, Inc., 2010 ONSC 1984

DIVISIONAL COURT FILE NO.: 89/10

DATE: 20100407

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N :

FRANK PETER, MRS. BERNADETT PETER, MARK PETER, MS. BERNADETT PETER, BRIAN FREDERICK FOOTE, RHONDA LYNN LO MONACO, ANITA PRAIN, FRANCINE NOROUZI AND HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ALBERTA AS REPRESENTED BY THE MINISTRY OF HEALTH AND WELLNESS

Plaintiffs/Moving Parties

– and –

MEDTRONIC, INC. AND MEDTRONIC OF CANADA LTD.

Defendants/Responding Parties

James C. Orr, Victoria Paris and Alexa Sulzenko for the Plaintiffs/Moving Parties

Patrick J. O’Kelly, Danielle K. Royal and Samaneh Hosseini for the Defendants/Responding Parties

HEARD: March 25, 2010

DAMBROT J.:

1The plaintiffs bring this motion for leave to appeal to the Divisional Court from the decision of Perell J. dated October 20, 2009, granting an order to bifurcate common issues relating to the quantification and apportionment of any accounting or disgorgement for a claim based on waiver of tort from the other common issues in the case.

2The motion was heard with a similar motion for leave to appeal in a second class action brought against the same defendants, and raising one of the same two issues.

BACKGROUND

Background

3Medtronic is a multi-national corporation that supplies medical technology and devices to individuals for the treatment of heart disease and other illnesses. This action concerns the alleged negligence of the defendants with respect to the design, manufacture and sale of implantable cardiac defibrillators and cardiac resynchronization therapy defibrillators. These devices are surgically implanted to monitor and correct dangerous heart rhythms.

4The action was certified as a national class action by Hoy J. on December 6, 2007. She certified sixteen common issues, including:

(11) If all or part of the Class can so elect, in what amount and for whose benefit is such accounting to be made?

(12) Is OHIP or any other provincial health insurer entitled to a portion of such accounting?

5The defendants brought a motion for an order bifurcating these two issues for purposes of discovery and trial. The motion judge allowed the motion, and made the order mentioned in paragraph [1] above.

ANALYSIS

Analysis

6In the companion case of Robinson v. Medtronic, Inc., 2010 ONSC 1987, in respect of bifurcation, I concluded that there are conflicting decisions on this issue and that it is desirable that leave to appeal be granted. I am further of the view that there appears to be good reason to doubt the correctness of the order in question, and the matter is of sufficient importance, having regard to its precedential nature, that leave to appeal should be granted. I reach the same conclusion here.

DISPOSITION

Disposition

7Leave to appeal is granted. The plaintiffs will have 15 days from the release of this decision to serve and file brief written submissions respecting costs. The defendants will have 15 days from receipt of those submissions to serve and file brief responding submissions.

8As in Robinson v. Medtronic, Inc., I order that the hearing of this appeal be expedited.