CITATION: Babin v. Bayer Inc., 2016 ONSC 8017

DIVISIONAL COURT FILE NO.: 403/16

DATE: 20161221

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Kimberly Babin, Plaintiff/Respondent

AND:

Bayer Inc., Bayer Pharma AG and Bayer OY, Defendants/Appellants

BEFORE: L. A. Pattillo J.

COUNSEL: Bryan C. McPhadden, for the Plaintiff/Respondent

William McNamara and W. Grant Worden, for the Defendants/Appellants

HEARD: In writing

ENDORSEMENT

Introduction

[1] The defendants, Bayer Inc., Bayer Pharma and Bayer OY (collectively “Bayer”) seek leave to appeal from the Order of Perell J. (the “Motion Judge”) dated August 9, 2016. In that Order, the Motion Judge dismissed Bayer’s motion to compel answers to questions refused during cross-examination on an affidavit filed on behalf of the plaintiff, Kimberly Babin (the “Plaintiff”), and to seek production of relevant documents related to the questions.

[2] The Plaintiff’s action is one of numerous class actions commenced in various jurisdictions in Canada in respect of an intra-uterine birth control device known as Mirena. A consortium of plaintiff’s counsel, consisting of law firms pursuing certification of the proposed class actions, was formed to prosecute the litigation (the “Consortium”). Initially the Consortium elected to pursue certification in Alberta.

[3] When the Consortium switched tactics and decided to pursue certification in Ontario instead of Alberta, Bayer objected and brought a motion to stay the Ontario action. The Consortium’s stated reason for now proceeding in Ontario is that the Alberta action was not progressing at a satisfactory pace. Bayer’s position is that the real reason for the attempted jurisdictional change is to deprive it of a juridical advantage arising from plaintiff’s counsel’s decision in Alberta not to serve certain defendants with the Alberta claim within the time allowed for doing so.

[4] The affidavit being cross-examined on was sworn by a lawyer in the Consortium in response to Bayer’s stay motion. Questions relating to the reasons for the purported delay in the Alberta action were refused on the grounds of relevance and privilege.

[5] In dismissing Bayer’s motion to compel answers to the refusals on the grounds of irrelevancy, the Motion Judge noted that there were arguably other grounds to justify the refusals including litigation privilege which was arguably not waived in the circumstances.

Test for Leave to Appeal

[6] The test for granting leave to appeal under rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[7] Under rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.).

[8] Under rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., 2003 40868 (ON SC), [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 1986 2749 (ON SC), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 1988 4842 (ON SCDC), 65 O.R. (2d) 110 (Div. Ct.).

Analysis

[9] In seeking leave, Bayer relies only on rule 62.02(4)(b) – there is good reason to doubt the correctness of the Motion Judge’s decision and the proposed appeal raises issues of substantial importance, not only to the parties but to class action practice generally. In my view, Bayer’s motion fails on both branches of the test.

[10] The issues on which Bayer seeks leave to appeal arise out of a refusals motion. The issues involve the relevance of the refusals to the issues on the stay motion. Accordingly they are specific to the motion and do not transcend the interests of the parties such that they involve matters of general or public importance. There is no question, as noted by the Motion Judge, that the issue of multiplicity of national class actions is a very serious problem for class action litigation. Consideration of that issue, however, is for the stay motion, not the refusals motion.

[11] Bayer submits that there is good reason to doubt the correctness of the decision because in reaching his decision, the Motion Judge relied on considerations raised by him of his own initiative, after the fact, without giving the parties an opportunity to respond. Specifically, the Motion Judge relied on the recommendations of the Uniform Law Conference of Canada about amendments to its Class Proceedings Act.

[12] In referring to the recommendations of the Uniform Law Conference, the Motion Judge set out the provisions of s. 4(2) and the commentary that followed dealing with multi-jurisdictional class proceedings as being “most pertinent because they demonstrate what might be relevant matters to consider on a motion to stay a multi-jurisdictional class action.” Those factors include the alleged basis of liability, including applicable laws; the status of each action; the plan for the proposed multi-jurisdictional proceeding; location of class members in the various proceedings; location of evidence and witnesses.

[13] The main issue before the Motion Judge involved relevance of the questions to the issues in Bayer’s stay motion. The issues on the stay motion frame relevance. Both parties had ample opportunity to make full submissions on relevance. The Motion Judge’s reference to and reliance on the Uniform Law Conference’s provisions to outline relevance in respect of the stay motion did not introduce a new issue which the parties had no opportunity to argue.

[14] Bayer also takes issue with the Motion Judge’s comment that the questions appeared to be designed to embarrass the lawyers of the Consortium. It submits that it was not raised during argument or put to counsel to allow Bayer to reply. The comment was based on the Motion Judge’s view of the questions in issue. It arose from the issues before him and did not give rise to a right of response by counsel. Further, on review of the entire decision it is clear that the Motion Judge’s determination of relevance was based on the issues in the stay motion.

[15] Finally, Bayer submits that because the matters raised by the questions in issue had been put into issue by the affiant in his affidavit, Bayer had a prima facie right to cross-examine on those issues. The Motion Judge expressly addressed this argument in his reasons. He noted that while Bayer was entitled to cross-examine on these matters, subject to issues of privilege and waiver of privilege, he retained the discretion to both order that the affiant answer irrelevant questions as well as to not answer such questions. After setting out a number of the factors to be considered in exercising such discretion, the Motion Judge concluded that while the affiant opened himself to cross-examination on the internal workings and communications of the Consortium, cross-examination should not be permitted to go beyond the external work of the Consortium. In the circumstances, I do not consider that the Motion Judge’s decision in that regard involved an error in principle.

[16] For the above reasons, therefore, Bayer’s motion for leave to appeal is dismissed. Based on the agreement of the parties, the Plaintiff is entitled to costs of the motion fixed at $6,500 in total.

L. A. Pattillo J.

Date Released: December 21, 2016