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.:
[1] The 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.
[2] The 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
[3] Medtronic 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.
[4] The 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?
[5] The 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
[6] In 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
[7] Leave 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.
[8] As in Robinson v. Medtronic, Inc., I order that the hearing of this appeal be expedited.
M. DAMBROT J.
RELEASED:
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
REASONS FOR JUDGMENT
DAMBROT J.
RELEASED: April 7, 2010