CITATION: Parker v. Pfizer Canada Inc., 2012 ONSC 6604

DIVISIONAL COURT FILE NO.: 391/12

DATE: 20121123

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kenneth R. Parker v. Pfizer Canada Inc. and Pfizer Inc.

BEFORE: Justice Swinton

COUNSEL: Bryan C. McPhadden, I. Erez and Douglas Lennox for the Plaintiff/Responding Party

William McNamara and Ilana Schrager for the Defendant/Moving Party

HEARD at Toronto: November 13, 2012

ENDORSEMENT

Overview

[1] Pfizer Canada Inc. ("the defendant") has brought a motion to extend the time for seeking leave to appeal and a motion for leave to appeal the decision of Perell J. dated June 21, 2012, in which he certified the plaintiff's action as a multi-jurisdictional class proceeding involving the prescription of CHAMPIX, a smoking cessation medication, as well as his subsequent award of costs to the plaintiff.

[2] During the hearing of the motion, I indicated that I would grant leave to extend the time to bring the motion for leave to appeal. In my view, the defendant had a continuing intention to appeal; the delay was adequately explained; the delay caused no prejudice to the plaintiff; and the appeal was not without merit. Therefore, in the interests of justice, leave was granted.

[3] However, having heard the argument on the motion for leave to appeal, I would dismiss the motion.

Background

[4] The motions judge redefined the proposed class and certified four of eleven common issues. Most importantly, he certified common issues relating to a duty to warn. While he also certified an issue dealing with waiver of tort, the plaintiff later consented to decertify this common issue.

[5] The motions judge also ordered costs to the plaintiff of $300,000, having reduced the amount claimed by approximately 20% to reflect the plaintiff's lack of success against Pfizer Inc. He rejected the defendant's argument that costs should be significantly reduced or be made payable in the cause because of the plaintiff's partial success.

Is there a conflicting decision?

[6] The test for leave to appeal is set out in Rule 62.02(4) of the Rules of Civil Procedure. The defendant argues that there is a conflicting decision within the meaning of Rule 62.02(4)(a) because Horkins J. refused to certify a class proceeding for an anti-psychotic drug, Seroquel, in Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744.

[7] A decision is not conflicting within the meaning of the rule unless judges have applied different legal principles. That is not the case here. Both Perell J. and Horkins J. applied the same well known legal principles concerning certification to the pleadings and evidence before them. See, for example, the discussion in Martin at paras. 21-25, and 94 and in Parker at paras. 30, 50, 51 and 57.

[8] Moreover, the main reason that Horkins J. refused certification was the failure of the plaintiffs to satisfy s. 5(1)(a) of the Class Proceedings Act ("CPA"), the requirement to show that there was a tenable cause of action (although she also dealt with the other criteria in s. 5(1)). In the present case, the motions judge held that the plaintiff had pleaded a tenable cause of action with respect to the duty to warn.

Is there good reason to doubt the correctness of the certification decision?

[9] The motions judge certified a class defined by individuals who had ingested CHAMPIX within a specified period of time and who had experienced any of a list of neuropsychiatric events or psychiatric symptoms while ingesting CHAMPIX. He certified a common issue as to whether use of CHAMPIX increased the risk of a patient experiencing those same symptoms, as well as common issues concerning breach of a duty to warn patients and whether the defendant's conduct was sufficient to warrant punitive damages.

[10] The defendant argues there is good reason to doubt the correctness of the decision because of the motion judge's treatment of the common issues and his finding on preferable procedure. In particular, the defendant argues that the common issues are unsupported by a basis in fact and lack commonality; the evidence of the proposed plaintiff's expert Dr. Tremblay was inadmissible; and a class proceeding is not a preferable procedure, given the many individual issues remaining after a common issues trial.

[11] In an appeal of a decision of a class proceeding judge, a reviewing court should intervene only if the motions judge made a palpable and overriding error of fact or erred in law or in principle (Cassano v. Toronto-Dominion Bank (2007), 2007 ONCA 781, 87 O.R. (3d) 401 (C.A.) at para. 23).

[12] The motions judge redefined the class so as to deal with the defendant's argument that the earlier user definition was overinclusive. While the defendant argues that a number of the conditions listed in the new definition are vague and subjective, I see no error in his redefinition. The motions judge used language concerning known risks from the defendant's 2010 product monograph to redefine the class. Moreover, there appears to be no evidence that the impugned conditions are entirely subjective. Indeed, symptoms such as depression, suicide and suicidal ideation would be verifiable with medical and other evidence.

[13] Nor did the motions judge err in admitting the evidence of Dr. Tremblay for the limited uses specified in the reasons – namely, to give an opinion, as a treating psychiatrist, of the adequacy of the warning in some of the product monographs, and to give his observations of patients who had had adverse neuropsychiatric events after taking CHAMPIX.

[14] Moreover, the motions judge noted that there was also some basis in fact to support the conclusion that the failure to warn was a common issue because of the affidavits of four individuals concerning their experiences.

[15] As the motions judge noted, the threshold for establishing some basis in fact is low. As there was a basis in fact for the motion judge's conclusion that the failure to warn is a common issue, I see no reason to doubt the correctness of his conclusion on the common issues.

[16] The decision respecting the preferable procedure is one within the expertise of the motions judge. The defendant has failed to identify any error of principle by the motions judge in coming to his decision. Even if individual issues remain after the resolution of the common issues, the motions judge correctly concluded that resolution of the common issues would advance the litigation and meet the objectives of the CPA.

[17] In sum, the defendant has not shown that there is good reason to doubt the correctness of the certification decision. Moreover, the proposed appeal does not raise an issue of general importance to the administration of justice, as the motions judge applied well-established legal principles to the evidence and pleading before him.

The costs decision

[18] Costs are within the discretion of the motions judge. An appellate court will interfere with a costs award only if there is an error in principle or the award is clearly wrong (Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27).

[19] The defendant argues that costs of $300,000 are excessive, as the plaintiff was successful in having only four common issues certified (with only three now proceeding). The motions judge heard and considered these submissions, and gave careful reasons for his costs decision.

[20] I see no error of principle in the decision, and I cannot conclude that the award was clearly wrong just because other motions judges may have exercised their discretion in a different manner in other motions for certification.

Conclusion

[21] Accordingly, the motion for leave to appeal is dismissed. Costs to the plaintiff are fixed at $7,500 inclusive of HST and disbursements.

Swinton J.

Released: November 23, 2012