CITATION: Kirsh v. Bristol-Meyers Squibb Canada Co, 2020 ONSC 4878
DIVISIONAL COURT FILE NO.: CVD-TOR-21-20ML
DATE: 20200820 CORRECTION DATE: 20200821
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: MATTHEW KIRSH and GAYLE KIRSH, Plaintiffs (Responding Parties)
AND:
BRISTOL-MYERS SQUIBB, BRISTOL-MYERS SQUIBB CANADA CO./LA SOCIÉTÉ BRISTOL-MYERS SQUIBB, OTSUKA PHARMACEUTICAL CO., LTD., OTSUKA CANADA PHARMACEUTICAL INC., OTSUKA AMERICA PHARMACEUTICAL, INC., OTSUKA AMERICA, INC., OTSUKA MARYLAND MEDICINAL LABORATORIES, INC., OTSUKA PHARMACEUTICALS DEVELOPMENT & COMMERCIALIZATION, INC., H. LUNDBECK A/S and LUNDBECK CANADA INC., Defendants (Moving Parties)
BEFORE: Swinton, D.L. Corbett and L.A. Pattillo JJ.
COUNSEL: Joel P. Rochon and Golnaz Nayerahmadi for the Plaintiffs (Responding Parties)
S. Gordon McKee, Robin Linley and Natasha Lombardi for the Bristol-Meyers Defendants (Moving Parties)
Randy Sutton and Erika Anschuetz for the Otsuka Defendants (Moving Parties)
Frank J. McLaughlin, Brandon Kain and Dorothy E. Charach for the Lundbeck Defendants (Moving Parties)
HEARD at Toronto: In writing
ENDORSEMENT
[1] The motions for leave to appeal the order of Morgan J. dated March 13, 2020 are allowed only with respect to the following questions:
Did the motion judge err in the application of the preferable procedure requirement in s. 5(1)(d) of the Class Proceedings Act, given the authorization (certification) of the Scheer action in Quebec?
Did the motion judge err in his application of the abuse of process doctrine?
[2] Costs of the motions for leave to appeal, fixed in the amount of $5,000, are left to the discretion of the panel hearing the appeal.
Swinton J.
D.L. Corbett J.
L.A. Pattillo J.
Date: August 20, 2020
Correction Date: August 21, 2020
Correction Notice: Brandon Kain co-counsel to Lundbeck Defendants (Moving Parties) is added.