Court File and Parties

Citation: Kirsch v. Bristol-Meyers Squibb Canada Co., 2020 ONSC 3640 Divisional Court File No.: TBA File No: CV-16-553833-00CP (Toronto) Date: 2020-06-10

Superior Court of Justice – Ontario Divisional Court

Re: Kirsch v. Bristol-Meyers Squibb Canada Co.

Before: D.L. Corbett J.

Counsel: Joel P. Rochon and Golnaz Nayerahmadi for Plaintiffs/Responding Parties S. Gordon McKee and Robin Linley for Defendant/Moving Party Bristol-Meyers Randy Sutton and Erika Anschuetz for Otsuka Defendants/Moving Parties Frank J. McLaughlin, Brandon Kain, Dorothy E. Charach for Lundbeck Defendants/Moving Parties

Endorsement

[1] This endorsement reflects a case management teleconference held on June 10, 2020.

[2] The three motions for leave to appeal the decision of Morgan J. (2020 ONSC 1499) shall proceed in writing before one panel of three judges of the Divisional Court the week of August 17, 2020.

[3] The defendants’/moving parties’ motion materials for the motions for leave to appeal shall be served by June 22, 2020. The plaintiff/responding party’s motion materials shall be served by July 10, 2020. Any reply materials shall be served by July 24, 2020.

[4] There are three motions for leave to appeal. All three motions shall be placed before the same panel of this court, during the same week. The moving parties shall cooperate to file a consolidated record for use on all three motions. The moving parties shall each be limited to factums of 30 pages each. The plaintiff/responding party requests to file a consolidated factum of up to 90 pages in length, given that the moving parties will have an aggregate of 90 pages among them. This request is granted as preferable to receiving three 30 page factums from the plaintiff/ responding party – with the caveat (to both sides) that length is not usually a virtue nor an aid to persuasion.

[5] Counsel for Bristol-Meyers Squibb Canada Co. shall establish a password-protected download-only electronic drop box from which all case materials may be downloaded and shall provide the court with the URL and password by July 24, 2020.

(a) All documents other than factums shall be uploaded to the drop box in pdf format.

(b) Documents should be labelled in a manner that identifies them clearly for members of the panel so that it is not necessary to open the document to understand what it is. Pages should be numbered sequentially within each pdf. If this is not practical, given the current state of the documents, then individual documents should be uploaded to the drop box in pdf form, so that each document is clearly labelled, enabling the court to find documents quickly during the course of the hearing.

(c) Factums are to be filed in both pdf and Word versions. Where possible, the factums should contain hyperlinks for authorities and, if possible, hyperlinks to a “Factum Compendium”, described below.

(d) Books of authorities containing the full text of authorities should not be uploaded to the drop box. However, citations to cases in the factums are to provide, if possible, a hyperlink to the online version of cases. The only exceptions to this principle are authorities not available online, such as excerpts from textbooks, foreign law, or Canadian decisions not reported online: these should be collected in a small brief of unreported authorities and filed electronically.

(e) Parties may file a “Factum Compendium” containing single pages or brief portions of cases cited, and brief portions of evidence from the record referenced in the factum, hyperlinked from the factum. Where portions of cases are included in a compendium, the title of proceedings and headnote should be included as well. Where portions of the record are included in a Factum Compendium, the first page of the document and identification of where it may be found in the record should also be provided. The only exceptions to this principle are authorities not available online, such as excerpts from textbooks, foreign law, or Canadian decisions not reported online: these should be collected in a brief of authorities and filed electronically.

(f) The parties shall file their agreement on the disposition of costs, or, if the parties have not agreed as to costs, then each party shall file its bill of costs and costs outline and any brief supporting materials relied upon in respect to costs. The court does not open costs materials until the conclusion of the hearing.

(g) All parties are permitted to (but are not required to) file the following additional documents (in addition to documents permitted under the Rules): a Factum Compendium, described above.

[6] The parties shall obtain a temporary file number from Divisional Court staff. The parties shall be required to file one paper copy of all materials on the motion for leave to appeal and (if leave is granted) one copy of all materials filed on the appeal itself, in the appropriate Divisional Court office, and to pay applicable court fees for this case, once the court resumes following the suspension of ordinary operations because of the COVID-19 crisis.

[7] The court has endorsed its fiat on this endorsement this day; the unsigned version distributed to the parties today has the authority and effect of the signed version, a copy of which will be provided to the parties in due course after the suspension of ordinary court operations is lifted.

“D.L. Corbett J.”

Released: June 10, 2020