- DATE: 20021010 DOCKET: M28786, M28837/C38406
COURT OF APPEAL FOR ONTARIO
RE: SERVIER CANADA INC., LES LABORATOIRES SERVIER, SERVIER AMERIQUE, INSTITUT DE RECHERCHES INTERNATIONALES SERVIER (“I.R.I.S.”), SCIENCE UNION ET CIE, ORIL S.A. and BIOFARMA S.A. (Moving Party) – and – SHEILA WILSON (Responding Party) (M28786)
AND: SHEILA WILSON (Moving Party) – and - SERVIER CANADA INC., LES LABORATOIRES SERVIER, SERVIER AMERIQUE, INSTITUT DE RECHERCHES INTERNATIONALES SERVIER (“I.R.I.S.”), SCIENCE UNION ET CIE, ORIL S.A. and BIOFARMA S.A. (Responding Parties) (M28837)
AND: LES LABORATOIRES SERVIER, SERVIER AMERIQUE, INSTITUT DE RECHERCHES INTERNATIONALES SERVIER (“I.R.I.S.”), SCIENCE UNION ET CIE, ORIL S.A. (Appellants) – and – SERVIER CANADA INC., BIOFARMA S.A., GREENLESS BEVERLY and SHEILA WILSON (Respondents) (C38406)
BEFORE: ABELLA, MOLDAVER AND GILLESE JJ. A.
COUNSEL: Joel P. Rochon and Vincent Genova Rochon Genova For Sheila Wilson
Malcolm N. Ruby Gowlings Lafleur Henderson LLP For Les Laboratoires Servier, Servier Amerique, Institut de Recherches Internationales Servier, Oril S.A., Science Union et cie
William W. McNamara and Stephen Scholtz Ogilvy Renault For Servier Canada Inc., BioFarma S.A. David A. Klein Klein Lyons (Vancouver) for the B.C. Subclass, Beverly Greenless Toronto Agent: Gary A. Smith, Lawyer
HEARD: October 2, 2002
On appeal from the order of the Honourable Justice Peter A. Cumming released May 24, 2002.
E N D O R S E M E N T
Released Orally: October 2, 2002
- [1] Assuming without deciding that the order under appeal is a final order, in the unique circumstances of this case we are of the view that the appeal should be quashed. We have come to that conclusion for reasons which include the following considerations:
a) The same issue has already been decided in the same case. At paragraph 14 of his reasons, Justice Cummings said “Thus, the constitutional determination in Wilson No. 1 is determinative of the very same issue in the present motion by the French defendants.” It is clear from Justice Cummings reasons that the French defendants were raising a legal argument which had already been decided in respect of a closely connected and similarly situated defendant in the same proceeding. Leave to appeal that decision to the Divisional Court had been denied and leave to appeal to the Supreme Court of Canada from the Divisional Court’s denial was dismissed.
b) The trial is imminent and the material reveals that a number of plaintiffs are critically ill.
c) These defendants and the related defendants have to date engaged in a proliferation of proceedings, which in our view, have resulted in unacceptable delay.
[2] We wish to make it clear that our conclusion is overwhelmingly dependent upon the first of these considerations. The latter two would not have carried the day on their own.
[3] Therefore, the motion to quash the appeal is granted. It is not necessary in these circumstances to deal with the stay motion.
_____ “R.S. Abella J.A.”
_____ “M.J. Moldaver J.A.”
_____ “E.E. Gillese J.A.”