Boulanger v. Johnson & Johnson Corporation et al.

Boulanger v. Johnson & Johnson Corporation et al. [Indexed as: Boulanger v. Johnson & Johnson Corp.]

64 O.R. (3d) 208

[2003] O.J. No. 1374

Divisional Court File No. 302/02

Ontario Superior Court of Justice

Divisional Court

Blair R.S.J., Carnwath and MacDonald JJ.

April 17, 2003

Civil procedure -- Class proceedings -- Representative plaintiff -- Representative plaintiff may advance claims for class members that representative plaintiff might not have in his or her personal capacity -- Class Proceedings Act, 1992, S.O. 1992, c. 6.

Civil procedure -- Pleadings -- Claims based on out-of- province statutes should be pleaded as allegations of material fact -- Out-of-province statute should be pleaded by providing its name, statutory citation, province in which it is in force, section numbers relied upon and wording of those sections.

In a proposed class proceeding under the Class Proceedings Act, 1992 (the "CPA"), the plaintiff, a resident of Ontario, claimed injuries as a result of taking Cisapride, a prescription drug marketed under the name Prepulsid. The drug was manufactured, marketed and distributed by the defendants as a treatment for gastrointestinal disorders. The plaintiff also sued for the subrogated interests of provincial health insurers pursuant to legislation similar to the Ontario Health Insurance Act, R.S.O. 1990, c. H.6. The statement of claim, however, did not name the legislation passed by provinces other than Ontario and did not plead the relevant portions of any statute. On a motion brought by the defendants, Nordheimer J. [page209] refused to strike certain paragraphs from the statement of claim. The defendants appealed. The issue to be determined was whether the impugned paragraphs should be struck out pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as disclosing no reasonable cause of action. The defendant's main position was that the plaintiff could not assert causes of action pursuant to the legislation of provinces other than Ontario and that she was not a proper representative plaintiff.

Held, the statement of claim should be amended to plead the statutes of other provinces and the appeal should otherwise be dismissed.

The CPA, in s. 2(1), authorizes "one or more members of a class of persons" to commence a proceeding "on behalf of the members of the class". The words "on behalf of" demonstrate that the legislature authorized a representative plaintiff to advance claims for class members which the representative plaintiff might not have in his or her personal capacity.

Proceedings commenced in accordance with the CPA are properly regarded as class proceedings from their commencement, unless and until certification is denied. Taken together, s. 35 of the CPA and s. 66 of the Courts of Justice Act, R.S.O. 1990, c. C.43, showed that the legislature intended that the Rules of Civil Procedure should supplement the provisions of the CPA "in respect of practice and procedure" but without conflicting with the purposes for which the CPA was enacted. When a proceeding is commenced in accordance with the CPA, members of the class who are not named as plaintiffs, but whose claims are asserted in accordance with the Act, are like parties to the action. Rule 21.01(1)(b) must be considered bearing in mind that the legislature has approved of a plaintiff asserting causes of action that are not the plaintiff's personal causes of action but which are asserted by the plaintiff on behalf of class members. The pleadings in the immediate proceeding had some chance of succeeding and they should not be struck out. Further, for the purposes of rule 21.01(1)(b), it could not be said that the claims plainly and obviously did not have a chance of meeting the "common issues" criterion for certification under the CPA.

For pleadings purposes, the out-of-province statutes in issue were like allegations of material fact that must be stated concisely in the statement of claim pursuant to rule 25.06(1). An out-of-province statute should be pleaded by providing its name, its statutory citation, the province in which it is in force, the section numbers relied upon and the wording of those sections. The pleader should plead all facts which an out-of- province statute makes material to any claims in issue.

APPEAL from a dismissal of a motion to strike paragraphs from a statement of claim in an action commenced pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6.

Andersen v. St. Jude Medical Inc., [2002] O.J. No. 260 (Quicklaw), [2002] O.T.C. 53 (S.C.J.), overturned Other cases referred to Cahoon v. Franks, 1967 77 (SCC), [1967] S.C.R. 455, 63 D.L.R. (2d) 274, 60 W.W.R. 684; Drummond-Jackson v. British Medical Association, [1970] 1 E.R. 1094, [1970] 1 W.L.R. 688, 114 Sol. Jo. 152 (C.A.) (sub nom. Jackson v. British Medical Association); Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105 (sub nom. Hunt v. T & N plc); Operation Dismantle Inc. v. R., 1985 74 (SCC), [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481, 59 N.R. 1, 13 C.R.R. 287, 12 Admin. L.R. 16; Ragoonanan v. Imperial Tabacco Canada Ltd. (2000), 2000 22719 (ON SC), 51 O.R. (3d) 603, 4 C.C.L.T. (3d) 132 (S.C.J.); Stone v. Wellington (County) Board of Education (1999), 1999 1886 (ON CA), 29 C.P.C. (4th) 320 (Ont. C.A.); Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 28067 (ON SC), 54 O.R. (3d) 334, 11 C.P.C. (5th) 65 (S.C.J.) [page210] Statutes referred to Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 2, 5(1), 35 Constitution Act, 1867, s. 92(13), (16) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 66 Evidence Act, R.S.O. 1990, c. E.23, s. 25 Family Law Act, R.S.O. 1990, c. F.3 Food and Drug Act, R.S.C. 1985, c. F-27 Health Insurance Act, R.S.O. 1990, c. H.6 Trustee Act, R.S.O. 1990, c. T.23 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, 1.04(1), 12.02(1), 21.01(1)(b), 25.06(1), 77.01(2.1)

Christopher Morrison, for respondent. S. Gordon McKee and Katherine J. Manning, for appellants.

The judgment of the court was delivered by

[1] J. MACDONALD J.: -- This is an appeal from Nordheimer J.s refusal to strike out various paragraphs of the amended Statement of Claim in an action commenced pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6 (hereinafter the "CPA"). In these paragraphs, the respondent advances claims and supporting allegations on behalf of members of the proposed class who are in provinces of Canada other than Ontario, as follows:

(a) for the subrogated interests of their provincial health insurers, pursuant to provincial legislation similar to Ontario's Health Insurance Act, R.S.O. 1990, c. H.6

(b) for the loss of care guidance or companionship, and pecuniary or other losses pursuant to provincial legislation similar to Ontario's Family Law Act, R.S.O. 1990, c. F.3

(c) for damages pursuant to provincial legislation similar to Ontario's Trustee Act, R.S.O. 1990, c. T.23, on behalf of those members of the proposed class who are personal representatives of deceased persons.

[2] The amended Statement of Claim does not name any legislation passed by provinces other than Ontario. It does not plead the relevant portions of any statute.

[3] Epstein J. granted leave to appeal. She found that Nordheimer J.'s decision conflicts with Andersen v. St. Jude Medical Inc., [2002] O.J. No. 260 (Quicklaw), [2002] O.T.C. 53 (S.C.J.). [page211] That case was also instituted pursuant to the CPA, and subrogated claims by class members on behalf of health insurers in provinces other than Ontario which were advanced in the name of one proposed representative plaintiff, an Ontario resident, were struck out without leave to amend. Epstein J. also held that the issues are important to the development of class proceedings practice in Ontario.

The Issue

[4] The issue to be determined is whether the impugned paragraphs of the amended Statement of Claim should be struck out as disclosing no reasonable cause of action, pursuant to rule 21.01(1)(b) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194]. The issue, therefore, is whether the amended Statement of Claim properly pleads claims on behalf of a national class. The court is not asked to determine whether class proceedings on behalf of a national class are valid or proper in Ontario.

[5] It should be noted that Statements of Defence have not been delivered and a motion for certification has not been brought.

The Claims

[6] The respondent is a resident of Ontario who claims injuries, damages and losses as a result of taking Cisapride, a prescription drug marketed under the name "Prepulsid".

[7] The appellants are alleged to have manufactured, marketed and distributed Prepulsid throughout Canada for the treatment of gastrointestinal disorders. It is alleged that the drug was approved in Canada in 1990 and was withdrawn from the Canadian market in August 2000, except for very limited usage.

[8] The Attorney General of Canada, who took no part in this appeal, is alleged to be responsible through Health Canada for the testing, approval, regulation and monitoring of prescription drugs including Prepulsid, pursuant to the Food and Drug Act, R.S.C. 1985, c. F-27.

[9] Numerous causes of action are pleaded including fraud, negligence, breach of fiduciary duty, breach of contract and/or warranty and failure to warn.

[10] General damages of $500 million, unspecified special damages, punitive, aggravated and/or exemplary damages of $100 million, reimbursement of the cost of purchasing the drug, interest and costs are claimed. [page212]

The Motions before Nordheimer J.

[11] Nordheimer J. heard two motions. The first was a motion to bring together two similar actions. The procedure proposed was to consolidate the two actions by means of an amended Statement of Claim in which the respondent, Aline Boulanger would be the sole representative plaintiff. The appellants opposed this procedure. Nordheimer J. granted this order.

[12] Without formal amendments having been made, the respondent's proposed amended Statement of Claim immediately became the subject of the second motion, which was to strike out certain paragraphs contained therein. It appears that all counsel agreed to proceed on the basis that the pleading would be treated as if it had been formally amended. Nordheimer J. ordered that certain paragraphs of the amended Statement of Claim, as I will continue to describe it, be struck out. That part of his Order is not in issue. His refusal to strike out other paragraphs is the subject of this appeal.

The Two Appeals

[13] The appellants appealed to the Court of Appeal from Nordheimer J.'s order substituting the respondent as the representative plaintiff. As of the hearing of this appeal, the Court of Appeal had heard argument and reserved its decision. It has now ruled that the appeal should have been heard by the Divisional Court.

[14] At the commencement of this appeal, counsel agreed that the issues before us will require determination regardless of the outcome of the other appeal. Counsel asked the court to determine these issues even though the pleading before us is only a proposed amended Statement of Claim.

[15] The absence of formal amendment is simply an irregularity. The Statements of Claim in the two prior actions and the amended Statement of Claim all make the claims and allegations which are now in issue. Consequently, the issues in this appeal will require determination regardless of who should be a representative plaintiff. The court therefore proceeded with this appeal.

The Position of the Parties

(a) The appellants' position

[16] The appellants' main position is that the respondent, a resident of Ontario whose claims arose in Ontario, cannot assert causes of action pursuant to the legislation of provinces other than Ontario. This submission appears to have two components, as follows. [page213]

[17] First, in respect of provincial health insurance legislation, the appellant submits that, since the respondent's healthcare needs occurred in Ontario, all of the costs of healthcare must have been paid by the Ontario Health Insurance Plan (hereinafter "OHIP"). As a result, the respondent has no entitlement to coverage for healthcare services pursuant to the statutory health insurance plans in force in other provinces. The appellants, therefore, submit that the respondent is not a proper representative plaintiff because only a member of the class who is resident in a particular province has a claim pursuant to that province's health insurance plan, and only such a person may advance a representative claim on behalf of that plan.

[18] Second, the appellants advance a slightly different position in respect of members of the class resident in provinces other than Ontario who have claims pursuant to their provincial legislation which is similar to Ontario's Family Law Act and Trustee Act. It appears to be accepted that a resident of one province may have valid claims pursuant to legislation passed in other provinces. Consequently, the appellants' position is that since the respondent has not pleaded that any of her personal claims are pursuant to the statutes of provinces other than Ontario, she is not a proper representative plaintiff in respect of claims advanced pursuant to statutes of provinces other than Ontario.

[19] In general, the appellants submit that at least one representative plaintiff must be personally entitled to assert each statutory claim or cause of action.

[20] The appellants also submit that it is not proper to plead legislation without identifying it.

(b) The respondent's position

[21] The respondent does not claim to be personally entitled, for example, to insured services pursuant to healthcare legislation in provinces other than Ontario. The respondent claims to represent persons who are so entitled, in respect of issues which all of them have in common. The respondent submits that she is entitled to plead causes of action in a representative capacity, which means that she is entitled to plead causes of action which are not hers personally.

[22] The respondent also submits that, in enacting the CPA, the legislature did not require separate representative plaintiffs in respect of each claim arising in each province in which the members of the proposed class reside.

[23] The respondent also submits that rule 21.01(1)(b) should be interpreted and applied in a manner which is compatible with the [page214] purpose for which the CPA was enacted. The respondent states that the appellants seek a result which is inconsistent with the CPA and with the purposes which it is intended to accomplish.

[24] The respondent does not oppose an order that the statutes in issue be pleaded by name.

Nordheimer J.'s Decision

[25] In arguing that the impugned paragraphs should be struck from the amended Statement of Claim, the appellants relied on the ratio in both Ragoonanan Estate v. Imperial Tobacco Canada Ltd. (2000), 2000 22719 (ON SC), 51 O.R. (3d) 603, 4 C.C.L.T. (3d) 132 (S.C.J.) and in Andersen v. St. Jude Medical Inc., supra.

[26] In his reasons, Nordheimer J. restated Cumming J.'s ratio in Ragoonanan, as follows:

[F]or each defendant who is named in a class action there must be a representative plaintiff who has a valid cause of action against that defendant.

In Andersen v. St. Jude Medical Inc., the motions court judge relied on the ratio in Ragoonanan in striking out all claims therein, without leave to amend. As mentioned, a representative plaintiff, an Ontario resident, had advanced the claims on behalf of class members out of Ontario who were in turn claiming on behalf of their health insurers in those provinces.

[27] Nordheimer J. considered the ratio in Andersen and held that it involved an extension of the principle in Ragoonanan. Speaking of Ragoonanan, Nordheimer J. held:

Mr. Justice Cumming was dealing with the presence of multiple defendants. He held, and I agree, that for each defendant who was named in a class action there must be a representative plaintiff who has a valid cause of action against that defendant. Otherwise, as Mr. Justice Cumming pointed out, those other defendants are being subject to claim where no party with the actual cause of action against those defendants has formally advanced such a claim.

Nordheimer J. then held that the circumstances in this case and in Andersen are different from the circumstances in Ragoonanan. He stated that this case and the Andersen case:

. . . involve the consideration of whether a defendant, who is the subject of a proper claim by the representative plaintiff arising from a valid cause of action, can also be subjected to claims for different forms of relief that the representative plaintiff herself does not have. In this case, for example, the representative plaintiff has claimed for the subrogated interest of OHIP but not any other provincial health insurance plan because she was not treated in any of those provinces.

Nordheimer J. continued:

. . . this is not a situation like in Ragoonanan where defendants were named in an action although the representative plaintiffs have no actual claim [page215] against them. Here, there is a valid cause of action against the named defendants. The question is the scope of the relief that may be claimed against them.

[28] Nordheimer J. also observed that the appellants' position involved to some degree a challenge to the existence of national class actions themselves because, if the appellants are correct,

. . . then in a number of situations in order to have a national class action it would be necessary to have so many representative plaintiffs, for the purpose of directly covering the various forms of relief that might arise in the ten provinces and three territories, that the action would practically become unworkable.

Nordheimer J. had that the CPA permits the respondent to advance these representative claims and as a result, the impugned paragraphs in the amended Statement of Claim disclose reasonable causes of action.

Conclusions

[29] In my opinion, Nordheimer J. was correct in his determination that the impugned paragraphs of the amended Statement of Claim disclose reasonable causes of action and should not be struck out. Further, I agree with Nordheimer J.'s reasons for concluding that the ratio in Ragoonanan does not apply to the circumstances of this case. Lastly, I am respectfully of the opinion that the ratio in Ragoonanan was not properly applied in Andersen and as a result, Andersen was not correctly decided. My reasons for these conclusions are as follows.

Analysis

(a) The status of class proceedings, prior to a certification motion

[30] The CPA, in s. 2(1), authorizes "[o]ne or more members of a class of persons" to commence a proceeding "on behalf of the members of the class". Nordheimer J. stated herein that the words "on behalf of" demonstrate that the legislature intended to authorize a representative plaintiff to advance claims for class members which the representative plaintiff might not have in her personal capacity. I agree with this conclusion.

[31] A person commencing a class proceeding is required by s. 2(2) of the CPA to move for "an order certifying the proceeding as a class proceeding and appointing the person as a representative plaintiff". The CPA also controls when the plaintiff may move for certification. Not only does the CPA require that the motion for certification follow commencement of the proceeding, [page216] s. 2(3) provides that the motion shall not be brought until after the time for defendants to appear, to give notice of their intent to defend or to deliver a statement of defence. Subsection 2(3) states:

2(3) A motion under subsection (2) shall be made,

(a) within ninety days after the later of,

(i) the date on which the last statement of defence, notice of intent to defend or notice of appearance is delivered, and

(ii) the date on which the time prescribed by the rules of court for delivery of the last statement of defence, notice of intent to defend or a notice of appearance expires without its being delivered; or

(b) subsequently, with leave of the court.

[32] The CPA therefore permits a representative plaintiff to institute a proceeding and to advance claims on behalf of members of a class without either prior or concurrent judicial approval. By postponing the time for a certification motion, the CPA postpones judicial scrutiny of the representative plaintiff and of his or her claims. [See Note 1 at end of document] The reason why the CPA postpones the time for a certification motion is apparent from the provisions of s. 2(3). It is to afford defendants a reasonable opportunity to respond to the representative plaintiff's claims and allegations. It is noteworthy that pursuant to s. 2(3), the court does not have discretion to order that a certification motion be heard earlier. The court may only delay the certification motion, pursuant to s. 2(3) (b).

[33] In my opinion, the scheme of the CPA demonstrates the legislature's intention to permit a representative plaintiff, prior to the certification motion, to plead causes of action which are not the representative plaintiff's personal causes of action but which are the causes of action of members of the class, asserted by the plaintiff in a representative capacity.

[34] As a result, proceedings commenced in accordance with the CPA do not become class proceedings if and when certification is granted. They are properly regarded as class proceedings from their commencement, unless and until certification is denied. Rule 12.02(1) reflects this, by requiring that in a proceeding "commenced" under the CPA, the title of the proceedings shall include the phrase "Proceeding under the Class Proceedings Act, 1992". [page217] Rule 77.01(2.1) also reflects this. In regions where case management is in effect, rule 77.01(2.1) states that the case management regime does not apply to proceedings "commenced" under the CPA, unless certification is denied. That is because the CPA contains its own case management provisions. It is only if certification is refused that rule 77 case management applies to the proceeding.

[35] It follows, therefore, that when a proceeding is commenced in accordance with the CPA, members of the class who are not named as a plaintiff but whose claims are asserted in accordance with the CPA are like parties to the action: see Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 28067 (ON SC), 54 O.R. (3d) 334, 11 C.P.C. (5th) 65 (S.C.J.).

(b) The Class Proceedings Act and the Rules of Civil Procedure

[36] Section 35 of the CPA states:

35. The rules of court apply to class proceedings.

[37] Section 66 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (hereinafter the "CJA") provides for the rules of court, stating:

66(1) Subject to the approval of the Lieutenant Governor in Council, the Civil Rules Committee may make rules for the Court of Appeal and the Superior Court of Justice in relation to the practice and procedure of those courts in all civil proceedings, including family law proceedings.

(2) The Civil Rules Committee may make rules for the courts described in subsection (1), even though they alter or conform to the substantive law, in relation to,

(a) conduct of proceedings in the courts;

(e) pleadings;

(x) any matter that is referred to in an Act as provided for by rules of court.

(3) Nothing in subsection (1) or (2) authorizes the making of rules that conflict with an Act, but rules may be made under subsections (1) and (2) supplementing the provisions of an Act in respect of practice and procedure.

[38] In my view, having considered s. 35 of the CPA and s. 66(3) of the CJA together, the legislature intended that the rules of court (known as the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as amended), should "supplement" the provisions of the CPA "in respect of practice and procedure", but without conflicting with the purposes for which the CPA was enacted. [page218]

[39] Rule 21.01(1)(b) states:

21.01(1) A party may move before a judge,

(b) To strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

[40] Rule 1.04(1) establishes how all rules are to be interpreted. It states:

1.04(1) General Principle -- These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[41] Consequently, rule 21.01(1)(b) must be construed in the light of the merits of the proceeding to which it is applied. In my opinion, consideration of the merits of a proceeding requires consideration of the legislatively mandated attributes and purposes of that proceeding. It follows that, in turning to the application of rule 21.01(1)(b) to this action, the court must bear in mind that the legislature has specifically approved of a plaintiff asserting causes of action which are not that plaintiff's personal causes of action but which are asserted by the plaintiff on behalf of class members.

(c) Does the amended statement of claim disclose a reasonable cause of action?

[42] The test in applying rule 21.01(1)(b) is established in Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321. The test is as follows: assuming that the facts as stated in the amended Statement of Claim can be proved, is it "plain and obvious" that the amended Statement of Claim discloses no reasonable cause of action?

[43] What is a "reasonable cause of action"? In Operation Dismantle Inc. v. R., 1985 74 (SCC), [1985] 1 S.C.R. 441, 18 D.L.R. (4th) 481 Wilson J. relied on Drummond-Jackson v. British Medical Association, [1970] 1 E.R. 1094, [1970] 1 W.L.R. 688 (C.A.) in defining a reasonable cause of action as one "with some chance of success". Consequently, if the pleadings which are impugned herein have some chance of succeeding, they may not be struck out under rule 21.01(1)(b).

[44] I adopt with respect Nordheimer J.'s reasons for rejecting the appellants' submission that the ratio in both Ragoonanan (supra) and in Andersen (supra) should be applied so as to deny the respondent the right to assert the claims in issue. [page219]

[45] The appellants also submit that the impugned causes of action are separate statutory causes of action which are, for that reason, so distinct from the personal causes of action validly asserted by the respondent that common issues do not exist. As a result, the appellants submit that it is plain and obvious that certification will be refused and the impugned causes of action should therefore be struck out pursuant to rule 21.01(1)(b). The existence of common issues is one of the criteria for certification pursuant to s. 5(1) of the CPA, which reads as follows:

5(1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,

(a) the pleadings or the notice of application discloses a cause of action;

(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members raise common issues;

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[46] In my opinion, this argument is without merit for the following reasons.

[47] The most common issue in all of the impugned claims is the steps taken by the appellants and by Health Canada before Prepulsid was ingested by any member of the public. I refer to manufacturing and distribution issues, the submissions made to Health Canada to obtain approval for Prepulsid and the planning and execution of advertising and sales strategies. With these liability issues in common, it cannot be said for the purposes of rule 21.01(1)(b) that the claims plainly and obviously do not have some chance of meeting the "common issues" criterion for certification.

[48] In addition, claims by members of the class as a result of injuries and claims asserted by members of the class on behalf of their provincial health insurers for the cost of treating those injuries are fundamentally the same claims: see Cahoon v. Franks, 1967 77 (SCC), [1967] S.C.R. 455, 63 D.L.R. (2d) 274. [page220] As a result, claims advanced by the respondent on behalf of class members, including claims advanced on behalf of their provincial health insurers, are very similar to the claims advanced by the respondent personally, which include her claim on OHIP's behalf. For this reason, it cannot be said for the purposes of rule 21.01(1)(b) that the claims plainly and obviously do not have some chance of meeting the "common issues" criterion for certification.

[49] In any event, in making the submission that common issues cannot exist because of the differing statutory regimes giving rise to the claims of class members, the appellants have not put any of the statutes in issue before the court. The appellants have therefore failed to demonstrate that factors inherent in these statutes lead to the absence of common issues, such that it is plain and obvious that the impugned paragraphs of the amended Statement of Claim do not raise causes of action which have some chance of success.

Pleading Statutes of Other Provinces

[50] The question to be considered is whether, for the purpose of pleadings delivered in an Ontario lawsuit, the statutes of other provinces are regarded as law, or whether they must be pleaded as if they were material facts.

[51] The Constitution Act, 1867 establishes a territorial limitation on provincial legislative competence. The opening words of s. 92 are: "In each province . . .". Subsection 92(13) gives the provinces exclusive legislative authority over property and civil rights in the province. Subsection 92(16) confines legislative competence to matters of a purely local or private nature in the province.

[52] Leaving aside any question of incidental extraprovincial effect because the amended Statement of Claim does not appear to raise this issue, the Constitution Act, 1867 leads to the conclusion that the statutes of one province do not have the force of law in another province. Consequently, while Ontario courts may take cognizance of Ontario or Federal statutes because they have the force of law in Ontario, the statutes of other provinces must be formally proven at trial, if effect is to be given to them.

[53] The Evidence Act, R.S.O. 1990, c. E.23, s. 25 facilitates the necessary proof. It states:

25. Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof and other public documents purporting to be printed by or under the authority of the Parliament of the United Kingdom, or of the Imperial Government or by or under the authority of the government or of any legislative body of any [page221] dominion, commonwealth, state, province, colony, territory or possession within the Queen's dominion, shall be admitted in evidence to prove the contents thereof.

[54] In my opinion, it follows that, for pleadings purposes, the out-of-province statutes in issue are like allegations of material fact which must be stated concisely in the amended Statement of Claim, pursuant to rule 25.06(1).

[55] An out-of-province statute should be pleaded by providing its name, its statutory citation, the province in which it is in force (if that is not otherwise apparent), the section numbers relied upon and the wording of those sections. While the identifying particulars of an out-of-province statute should appear in the amended Statement of Claim, it may be helpful to provide the wording of the various sections in an appendix to the pleading. Reference should be made to such an appendix in the body of the amended Statement of Claim.

[56] In addition, it will be necessary for the respondent to plead all facts which an out-of-province statute makes material to any of the claims in issue.

Disposition

[57] The respondent shall amend the amended Statement of Claim to plead the statutes of provinces other than Ontario upon which she relies, in accordance with these reasons. The appeal is otherwise dismissed.

[58] This court has not determined any certification issue except that reasonable causes of action are disclosed by the impugned paragraphs of the amended Statement of Claim. For the purpose of certification, issues such as whether there is an identifiable class, whether there are common issues or whether the respondent is a suitable representative plaintiff remain to be decided.

[59] The respondent has been successful in respect of the major issues. Further, the respondent did not oppose amendment of the pleading to plead the out-of-province statutes in issue. The parties have made submissions respecting costs. The appellants shall pay to the respondent the costs of the motion for leave to appeal and of the appeal, fixed in the amount of $10,000 plus GST.

Order accordingly.

[page222]

Notes

Note 1: Motions pursuant to rule 21.01(1)(b) may be brought prior to certification motion: see Stone v. Wellington (County) Board of Education (1999), 1999 1886 (ON CA), 29 C.P.C. (4th) 320 (Ont. C.A.).