CITATION: Lloyd v. GlaxoSmithKline Inc., 2016 ONSC 501
DIVISIONAL COURT FILE NO.: 524/15
DATE: 20160121
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Lloyd et al. v. GlaxoSmithKline Inc. et al.
BEFORE: Swinton J.
COUNSEL: Mary Thomson and David T. Woodfield, for the Defendant GlaxoSmithKline Inc. (Moving Party)
Won J. Kim, Megan McPhee and Tina Q. Yang, for the Plaintiffs (Responding Parties)
HEARD at Toronto: in writing
ENDORSEMENT
[1] GlaxoSmithKline Inc. (“GSK Inc.”) seeks leave to appeal the order of Belobaba J. dated October 1, 2015, in which he granted leave to the plaintiffs to serve a Second Fresh as Amended Statement of Claim against four other defendants (the “Foreign Defendants”) in this proposed class proceeding.
[2] GSK Inc. relies on rule 62.02(4)(b) of the Rules of Civil Procedure, arguing that there is good reason to doubt the correctness of the order.
[3] In my view, GSK Inc. has not met the two part test for leave to appeal pursuant to rule 62.02(4)(b).
[4] First, there is no good reason to doubt the correctness of the order. The order is consistent with the earlier order of the motions judge dated September 11, 2014 that prohibited further amendments to the Statement of Claim “as presented at the commencement of the certification motion”. He qualified that statement in the order by adding “for the purpose of certification.”
[5] The certification hearing between GSK Inc. and the plaintiffs began in December 2014. At that time, the Foreign Defendants were not before the Court, as they had not yet been served. The certification motion was then adjourned to allow the plaintiffs to file better evidence. The motion had not resumed at the time of the plaintiffs’ motion for leave to serve a further amended Statement of Claim. In the order that GSK Inc. seeks to appeal, the motions judge interpreted his earlier order and prevented a further amendment of the Statement of Claim for purposes of the ongoing certification motion, a motion involving GSK Inc., but not the Foreign Defendants. In my view, he was in the best position to interpret his own order, particularly because he is case managing this proposed class proceeding.
[6] The motions judge, exercising his discretion pursuant to s. 12 of the Class Proceedings Act, held that the Foreign Defendants would not be prejudiced by further amendments. Section 12 gives class proceedings judges a broad discretion to impose procedural terms that will promote justice and judicial economy and ensure the just, most expeditious and least expensive determination of the proceeding on its merits. I note that rule 26 of the Rules of Civil Procedure gives broad rights to amend a pleading. While GSK Inc. argues that the order will result in an absurdity, I am not persuaded this is the case, given the role of pleadings in a certification motion. In any event, GSK Inc. has not provided any authority to suggest that the motions judge acted improperly in exercising his discretion under s. 12.
[7] Second, the proposed appeal does not raise issues of general importance. The issues raised concerning the interpretation of the earlier order and the exercise of discretion by the motions judge are of importance to the immediate parties, but the proposed appeal raises no legal issue that warrants consideration at an appellate level.
[8] Accordingly, the motion for leave to appeal is dismissed. The plaintiffs have failed to file any costs submissions, although informed by the Divisional Court office that they should provide written costs submissions in advance of this hearing. I see no reason why the plaintiffs should not have costs of this motion. If the parties cannot agree on the quantum, they may make brief written submission within 10 days of the release of this decision.
Swinton J.
DATE: January 21, 2016