Court File and Parties

CITATION: Ledyit v. Bristol-Myers Squibb Canada Inc., 2008 ONCA 372

DATE: 20080512

DOCKET: C47821

COURT OF APPEAL FOR ONTARIO

ROSENBERG, LANG and EPSTEIN JJ.A.

BETWEEN:

STEVEN LEDYIT and LOUISE LEDYIT

Plaintiffs (Respondents/Cross-Appellants)

and

BRISTOL-MYERS SQUIBB CANADA INC., BRISTOL, MYERS SQUIBB COMPANY, LINSON PHARMA INC., APOTEX INC., PHARMEL INC., DOMINION PHARMACAL, NOVOPHARM LIMITED, PHARMASCIENCE INC., and GENPHARM INC.

Defendants (Appellant/Cross-Respondents, Apotex Inc.; Novopharm Limited; Bristol-Myers Squibb Canada Inc; Genpharm Inc.

Counsel: Adrian C. Lang for the appellant/cross-respondent, Apotex Inc. Joel P. Rochon for the respondents/cross-appellants

Heard: May 6, 2008

On appeal from the order of Justice Maurice C. Cullity of the Superior Court of Justice, dated September 13, 2007.

ENDORSEMENT

[1] The appellant, Apotex Inc., challenges the decision of the motion judge, Cullity J., to amend the claim by substituting two Québec representative plaintiffs in this Ontario class action. The challenge is made on the basis that the respondents’ action does not have a real and substantial connection to Ontario, Ontario is not the convenient forum and the action is an abuse of process.

[2] We agree with the reasons of the motion judge that Ontario courts have jurisdiction over this action because Apotex Inc. is resident in and carries on business in Ontario. Even if we accept the appellant’s argument that the real and substantial connection test must nonetheless be applied, the factors that inform that test support the conclusion that Ontario has jurisdiction simpliciter on the record in this case. This is particularly so where the representative plaintiffs are prepared to come to the jurisdiction where the defendant resides and carries on business.

[3] In addition, we do not accept the appellant’s argument that the motion judge ought to have exercised his discretion to find that Québec is the more convenient forum, especially in light of the limited material on the motion, which simply involved a motion to amend the claim to substitute the representative plaintiffs. The appellant is not precluded from bringing a motion regarding forum non conveniens on appropriate material.

[4] We also reject the appellant’s argument that the motion judge erred in accepting counsel’s assurance, given as an officer of the court, and subsequently confirmed in writing, that the Québec proceedings would not advance pending the certification decision in the Ontario proceeding and, if certified, that the Québec action would not proceed. In those circumstances, it cannot be successfully argued that the Ontario action is an abuse of process.

[5] Although this issue was not pursued in oral argument, we also agree with the motion judge that it would be premature to make a determination regarding the suitability of the representative plaintiffs, particularly in the absence of any evidence that the applicable Québec law differs from Ontario law.

[6] Accordingly, the appeal is dismissed. Costs to the respondent in the agreed-upon amount of $7,500, plus disbursements and Goods and Services Tax. We note that the cross-appeal was abandoned.

“M. Rosenberg J.A.”

“S.E. Lang J.A.”

“G. Epstein J.A.”