DATE: 20030307

DOCKET: C38112

COURT OF APPEAL FOR ONTARIO

WEILER, GOUDGE AND ARMSTRONG JJ.A.

B E T W E E N:

S. Gordon McKee

TERRENCE HART YOUNG, personally and Executor of the Estate of VANESSA YOUNG

and Kathryn J. Manning

for the appellants

Plaintiff (Respondent)

Gary R. Will

• and -

Christopher Morrison

and Joel Rochon

JANSSEN-ORTHO INC., JOHNSON & JOHNSON PRODUCTS JOHNSON & JOHNSON WORLDWIDE, McNEIL CONSUMER PRODUCTS, CANADA, MR. A.B., MS. D.C., AND THE ATTORNEY GENERAL OF CANADA

for the respondent

Defendants (Appellants)

A N D B E T W E E N:

GINO POLICICCHIO

Plaintiff (Respondent)

• and -

JOHNSON & JOHNSON CORPORATION, JOHNSON & JOHNSON MEDICAL PRODUCTS INC./ PRODUITS MEDICAUX JOHNSON & JOHNSON INC., and JANSSEN-ORTHO INC.

Defendants (Appellants)

Heard: November 14, 2002

On appeal from the order of Justice Ian V.B. Nordheimer of the Superior Court of Justice dated March 14, 2002.

GOUDGE J.A.:

[1] On March 14, 2002, Terrence Young and Gino Policicchio, each of whom had commenced a proposed class action against the appellants, brought a motion before Nordheimer J. seeking, inter alia, an order consolidating their actions and allowing them to substitute Aline Boulanger for themselves as the representative plaintiff in the consolidated action. The motions judge granted both orders.

[2] The appellants have not challenged the first order but bring this appeal from the second order permitting the substitution of a new representative plaintiff.

[3] For the reasons that follow, I have concluded that the order appealed from is interlocutory and, therefore, that the appeal from it lies not to this court but to the Divisional Court with leave. Thus, I would quash the appeal.

[4] Broadly speaking, the statement of claim in the consolidated action seeks damages arising from the production and distribution of the drug Prepulsid. The causes of action pleaded include negligence, breach of fiduciary duty, breach of warranty, and unjust enrichment, among others. The appellants have not yet filed a defence, nor has a motion been brought to seek certification of the action as a class proceeding. In other words, the action is at an early stage.

[5] The material filed before the motions judge indicated that Mr. Young and Mr. Policicchio, as well as Ms. Boulanger, decided that their interests and those of the other proposed class members would best be advanced by her assuming the role of representative plaintiff for the class.

[6] The respondents submit that the order substituting Ms. Boulanger as the representative plaintiff is not a final order and, therefore, that this appeal is not properly before this court.

[7] The appellants argue that the order is final in that it is dispositive of the participation of Mr. Young and Mr. Policicchio in the action as representative plaintiffs. The appellants say that this order finally deprives them of the automatic right to examine Mr. Young and Mr. Policicchio as representative plaintiffs on the certification motion.

[8] I do not agree with the appellants’ position.

[9] The order appealed from disposes of no substantive rights as between the appellants and the respondents. This is not the same as removing parties from an ordinary lawsuit. Mr. Young and Mr. Policicchio remain members of the proposed class and all of the substantive rights to relief they may have against the appellants continue to exist. Correspondingly, the appellants have lost no substantive defences with respect to these individuals or any other members of the proposed class as a result of this order. The order deals with a merely procedural matter, namely who will be proposed as the representative of the class when, in due course, a certification motion is brought. It does not deal with any substantive merits of the action, as it must in order to be a final order. See Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 28 C.P.C. (4th) 16 at 20 (Ont. C.A.).

[10] Furthermore, I do not think that in the circumstances of this case the appellants can properly be said to have an automatic right to examine Mr. Young and Mr. Policicchio which they have been deprived of by the order under appeal. In Caputo v. Imperial Tobacco Ltd. (1997), 1997 12162 (ON SC), 34 O.R. (3d) 314 (Gen. Div.), Winkler J. made clear that this is not an automatic right, but a matter for the court. He put it this way at pp. 319-20:

In my view, the combination of s. 16(1) and rule 39.03 confers upon the defendants a right to examine a representative party on matters relevant to the certification motion, in circumstances where there would otherwise be an insufficient evidentiary record before the court for the determination of the motion.

[11] Moreover, until a certification motion is brought forward in which it is sought to validate the plaintiff as properly representative of the class, the “right” to examine the proposed representative plaintiff on this basis does not arise. That point has not yet been reached in this case. The appellants’ “right” has not yet crystallized. In this sense as well the order appealed from has not deprived the appellants of an automatic right.

[12] The Supreme Court of Canada made clear in its decision in Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 that courts should not adopt an overly restrictive approach to the legislation governing class actions, particularly at the certification stage. My view of the true impact of the order appealed from is consistent with this approach It confirms my view that the order is merely procedural. It does not even finally dispose of any absolute right to examine. The appeal must therefore be quashed.

[13] I would fix costs at $2,000 inclusive of disbursements and G.S.T.

Released: March 7, 2003 “KMW”

“S.T. Goudge J.A.”

“I agree K.M. Weiler J.A.”

“I agree Robert P. Armstrong J.A.”