Citation: Price v. H. Lundbeck A/S, 2020 ONSC 913

COURT FILE NO.: DC 500/18 DATE: 20200211

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Kiteley, D.L. Corbett and Myers JJ.

B E T W E E N:

JENNIFER PRICE, individually, and MATTHEW JANZIC, a Child, by his Natural Mother and Litigation Guardian, JENNIFER PRICE Plaintiffs/Appellants

• and -

H. LUNDBECK A/S and LUNDBECK CANADA INC. Defendants/Respondents

Counsel: Paul Bates, Anthony Tibbs and Christopher Simoes, for the Appellants Frank McLaughlin and Brandon Kain, Dorothy Charach for the Respondents

Heard at Toronto: August 23, 2019

REASONS FOR DECISION

The Court:

[1] This is an appeal from the order of Perell J., dated August 13, 2018,[^1] that dismissed the appellants' motion to certify a class action in which it was alleged that the manufacturer of the drug, Citalopram/Celexa®, breached its duty to warn. The motion judge found that the common issue criterion under s. 5(1)(c) of the Class Proceedings Act, 1992[^2] (the CPA), the preferable procedure criterion under s. 5(1)(d) of the CPA, and the representative plaintiff criterion under s.5(1)(e) of the CPA had not been met. The appellants ask that the appeal be granted and that this action be certified as one or more class actions. In the alternative, the appellants request that the matter be sent back to Superior Court for further consideration of the certification motion based on the common issue identified by this court.

[2] For the reasons that follow, this appeal is allowed.

DECISION UNDER APPEAL

[3] In the proposed Certification Notice, the class action is described as follows:

A class action . . . was certified to advance claims regarding the selective serotonin reuptake inhibitor[^3] "citalopram" that Lundbeck marketed in Canada under the brand name Celexa®. You are a class member if, between January 28, 1999 and – Certification Date – you were a woman who was prescribed Celexa® in Canada and later aborted, delivered or miscarried a child with congenital malformations after taking citalopram during pregnancy. You are also a class member if you were a child born to such a woman, or are a family member of a child who died after being diagnosed with a congenital malformation. . .

The class action alleges that Lundbeck did not warn physicians and patients in Canadian Celexa® product monographs that citalopram poses a teratogenic risk when used during pregnancy to treat depression.

[4] The motion judge observed that the respondent had not provided "information that would assist the court in determining the class size". In paragraphs 20-21, the motion judge noted that:

The Plaintiffs estimate that the class size will consist of approximately 8,600 mothers who were prescribed citalopram (those who ingested Celexa® or generic versions of citalopram), plus the children born with birth defects, plus the family claimants, plus the governments who paid health care costs on behalf of the mothers and children.

The Plaintiffs' estimate was based on 6.8 million births during the 18 years that Celexa® has been available in Canada. The assumptions then of the estimate were that: 12.5% of the birth mothers were exposed to SSRIs; 25.1% of those exposed to SSRI's were prescribed Celexa®; and there was a 4% incidence of birth defects.

[5] In the Certification Statement of Claim, the appellants assert four causes of action, namely: failure to warn, failure to contraindicate, strict liability to foetuses who die in utero, and statutory derivative claims. As the motion judge pointed out in paragraph 10, for the purposes of the certification motion, the appellants predominately relied on the failure to warn cause of action.

[6] As the motion judge indicated at paragraph 75, in the context of manufacturers of pharmaceuticals, the manufacturer's duty to warn is discharged if the manufacturer provides a learned intermediary, in this case the prescribing physician, with an adequate warning of the potential dangers associated with the use of its product. The vehicle for providing that warning is the product monograph.

[7] The product monograph in 1999 contained the following information:

The safety of Celexa® during pregnancy and lactation has not been established. Therefore, Celexa® should not be used during pregnancy, unless, in the opinion of the physician, the expected benefits to the patient markedly outweigh the possible hazards to the fetus.

[8] The product monograph was revised in 2004 and, in 2011, under the heading "Warnings and Precautions", it indicated the following:

In animal reproductive studies citalopram has been shown to have adverse effects on embryo/fetal and postnatal development, including teratogenic effects when administered at doses greater than human therapeutic doses. There are no adequate and well controlled studies in pregnant women: therefore, citalopram should be used in pregnancy only if the potential benefit to the patient justifies the potential risk to the fetus.

[9] Section 5(1) of the CPA requires a court to certify a class proceeding if (a) the pleadings disclose a cause of action; (b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (c) the claims 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 who (i) would fairly and adequately represent the interests of the class; (ii) has produced a plan that sets out a workable method of advancing 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.

[10] The motion judge made the following findings:

(a) The action satisfied the cause of action criterion. (para. 91)

(b) The action satisfied the identifiable class criterion (para. 103) assuming a minor amendment was made to the class definition. (para 99)[^4]

(c) The action did not satisfy the common issue criterion. (para. 141)

(d) It is axiomatic that if the common issue criterion is not satisfied, the preferable procedure criterion is not satisfied. (para. 153) However, even if the plaintiff had satisfied the common issue criterion, the action did not satisfy the preferable procedure criterion. (paras. 153 to 158)

(e) Had the common issue and preferable procedure criteria been satisfied, the plaintiff would have qualified as a representative plaintiff. However, because there is no certifiable common issue and a class action is not the preferable procedure, it follows that Class Counsel cannot produce a workable litigation plan. Therefore, the representative plaintiff criterion is not satisfied in this case. (paras. 163 to 164)

ISSUES IN THE APPEAL

[11] The appellants raise the following issues in their factum:

(a) Did the motion judge err in failing to certify a duty to warn common issue?

(b) Did the motion judge consequently err in his application of the preferable procedure and representative plaintiff certification criteria?

[12] The factum further explained that:

(1) The motion judge erred by

(a) misapprehending the common issue as not having a "general causation" element; and by

(b) denying the existence of the common issue because of the presence of individual factual causation issues.

(2) The motion judge erred by converting the presence of individual issues from a preferable procedure factor into a requirement, to the exclusion of other factors that he was required, but failed, to consider.

[13] In their factum, the respondents take the position that:

1. The proposed common issue does not satisfy s. 5(1)(c) because

A. The failure to warn issue is not a common one

B. The failure to warn issue also has no utility without general causation:

(i) There is no common general causation elements

a. The appellants abandoned general causation in the motion for certification

b. A general causation issue about "overall" malformations is not common

c. A general causation issue about "any" malformations is not common

d. A general causation issue about "organ groupings" is not common

(ii) General causation is the central question in the litigation

C. The motion judge did not deny the common issue due to other individual issues.

2. A class action is not the preferable procedure under s. 5(1)(d).

[14] Based on the submissions and the parties' factums, we find that the issues to be addressed are as follows:

1. Did the motion judge err in finding that the appellants did not propose a common issue based on general causation?

2. Did the motion judge err in finding that the appellants proposed that the duty to warn was a common issue independent of general causation?

3. Did the motion judge err in finding that the appellants had not established that a class action was the preferable procedure?

4. What is the appropriate remedy?

JURISDICTION

[15] This court has jurisdiction pursuant to s. 30(1) of the CPA.

STANDARD OF REVIEW[^5]

[16] An appellate court should not interfere with a decision by a certification judge unless there is an error in principle or a palpable and overriding error of fact or mixed fact and law. A "palpable error" is one that is plainly seen. An "overriding error" is one that led to the wrong result.[^6]

[17] Paragraph 29 of the respondents' factum correctly describes the standard of review in class proceedings as follows:

The Supreme Court of Canada has held that "a decision by a certification judge is entitled to substantial deference". This reflects the fact that "[t]he judges hearing these motions have developed a special expertise" and "have often case-managed the proceedings and are therefore especially familiar with the factual context". The deference applies "to the motions judge's application of the test for certification and his determination of the common issues". Accordingly"[an] appellate court owes considerable deference to a certification judge's commonality analysis", and a "decision as to preferable procedure is . . . entitled to special deference because it involves weighing and balancing a number of factors". Absent a palpable and overriding error of fact"[t]he court's intervention should be restricted to matters of general principle".[^7]

ANALYSIS

Issue #1: Did the Motion Judge err in finding that the appellants did not propose a common issue based on general causation?

[18] The motion judge considered the common issue criterion in paragraphs 112 – 141. The motion judge observed the following:

112. Formerly, Ms. Price proposed the following common issues:

113. Is citalopram or may citalopram be teratogenic?

114. If so, did the Defendants breach a duty to warn Canadian physicians and patients that citalopram is or may be teratogenic? In particular:

(a) Did the Defendants owe and breach a duty to contraindicate citalopram for use during pregnancy?

(b) Did any Celexa® Product Monograph clearly, completely, or currently disclose that citalopram is or maybe teratogenic?

113. In her reply certification factum, Ms. Price sought only the certification of the following common issue:

From 1999, did the Defendants breach of duty to warn Canadian physicians and patients that citalopram is or may be teratogenic?

[19] In paragraph 113, the motion judge quoted the proposed common issue from the appellants' reply factum. However, the appellants made some minor corrections in the draft Certification Order that was attached as Schedule E to the Compendium dated May 28, 2018. The corrected proposed common issue before the motion judge was:

From 1999, did the Defendants breach a duty to warn Canadian physicians and patients that Citalopram is or may be a teratogen.

[20] In his reasons the motion judge defined a "teratogen" as follows:

28. A teratogen is any agent that can disturb the development of an embryo or fetus and thereby cause congenital malformations, which, in turn, can cause the pregnancy to spontaneously abort or the child to be born with birth defects.

29. Some teratogens cause one congenital malformation, others cause more than one.

[21] The motion judge properly defined "general causation" and "specific causation" as follows:

53. Etiology is the study of cause or causes, and epidemiology is the branch of medical science that studies the etiology of diseases and that identifies risk factors for disease or medical conditions. Epidemiology focuses on "general causation:" i.e., whether or not an agent has the capacity to cause a disease or medical condition rather than on "specific causation", i.e., whether or not an agent did cause a disease or medical condition to be suffered by a specific person.

54. There are different kinds of epidemiological studies that are employed to determine the positive or adverse effects of drugs. Epidemiological studies are designed to determine whether there is an "association", which may or may not be causal, between an agent and a disease and medical condition. Association is a necessary but not sufficient precondition for a causal connect[ion] between an agent and a consequence or effect[.] [Emphasis added]

[22] In paragraphs 104 to 111, the motion judge properly instructed himself on the general principles applicable to the identification of common issues.

[23] At paragraph 122, the motion judge held as follows:

While I was little helped by the competing arguments of the parties about the some basis in fact test and how it applies to the common issues criterion, hard upon the commencement of the hearing of the certification motion, Ms. Price made a strategic choice to seek certification based on only a duty to warn common issue. That choice did reduce the problems of dealing with the parties' mutually exclusive wrong approaches to the…[some] basis in fact test. [Emphasis added]

[24] In paragraphs 123 to 140 the motion judge made several comments about this "strategic choice" and concluded that as a result,

123. . . . This decision substantially reduced the still painful task of deciding whether her proposed action or actions satisfied the common issues and the preferable procedure criteria for certification for one or more class actions, but it eliminated the need to resolve many of the issues that had been hotly contested up until the commencement of the hearing of the certification motion.

124. Ms. Price's decision obviated the need to determine whether or not there existed a real issue about causation and about whether that issue was common across the class. . . [g]eneral causation is no longer a proposed common issue.

125. From the commencement of the action on December 22, 2014 until the argument of the motion beginning on May 28, 2018, the focus of the parties was on the issue of whether there was some basis in fact that citalopram is a teratogen, which is to say the critical common issue for the certification motion was general causation; i.e., whether there was some basis in fact that citalopram could cause birth defects. However, Ms. Price's strategic decision to focus on the duty to warn issue obviated the need to decide the original common issues based on causation; there is now only the need to decide the commonality of the duty to warn common issue.

126. Ms. Price's strategic decision leaves the identification issues, all the causation issues, and the damage assessment issues for individual issues trials. . . .

127. . . . Ms. Price is no longer proposing a general causation issue. [Emphasis added]

[25] The appellants argue that Ms. Price did not make a "strategic decision" to abandon the position she had asserted for four years since the case was started. They assert that the common issue referenced in paragraph 113 of the decision (quoted above in paragraph 19) was not a change of position and that they continued to pursue the common issue, namely whether citalopram is a teratogen, which, by definition, means it can cause congenital malformations and, as a result, the manufacturer has a duty to warn.

[26] The respondents argue that the appellants did alter their position literally on the eve of the hearing of the motion and that that is demonstrated by the following paragraph of the reply certification factum:

3(b) Whether citalopram is a teratogen, an aspect of which is the association with malformations, is not an issue at certification, but is an ultimate issue for trial, thus Lundbeck's experts have not satisfied the relevance criterion. The final issue that Lundbeck and its experts address is variation in malformations and timing of exposure. The Plaintiffs have conceded that this is an individual issue and have produced a plan to address it, thus Lundbeck's evidence and submissions are not necessary on this point.

[27] Counsel below grappled with the fact that they claimed that many different types of birth defects were allegedly caused by citalopram. They were apparently concerned that having to deal with different kinds of birth defects suffered by different plaintiffs or groups of plaintiffs could undermine the submission that the duty to warn presents an issue that is common to every class member. Therefore, counsel apparently conceded before the motion judge that both general and specific causation were issues for individual hearings rather than the common issue hearing. However, as Mr. Bates submits, the element that remained, whether Citalopram is a teratogen, has a general causation issue within it.

[28] As Mr. Bates submitted before this court, it may be that the plaintiffs created the confusion from which they now appeal. The common issue proposed by the plaintiffs before and after counsel's concession was "did the Defendants breach a duty to warn Canadian physicians and patients that Citalopram is or may be a teratogen". That is, the common issue proposed included not just the duty to warn but the duty to warn that the drug can cause birth defects.

[29] The proposed common issue of whether Citalopram can cause birth defects contains a causation question that may be common to every plaintiff and class member. That issue is whether Citalopram is teratogenic at all. Can it cause any birth defects? Before one gets to whether Citalopram may cause a particular type of birth defect, first it must be found capable of causing any birth defects. This issue will turn on the same scientific evidence in every case. The same basic studies that are the precursors to inquiries into specific types of injury will be relevant. Despite counsel's apparent concession, the common issue that counsel continued to propose to the motion judge did include a general causation issue that may indeed be common to the entire class.

[30] Mr. Bates submits further that it may be efficient for the question of general causation for each different type of injury alleged to be addressed at the common issue trial too. He argues that if the plaintiffs succeed in proving at the common issues trial that citalopram is not only teratogenic, but can cause a finite number of specific types of birth defects, then only plaintiffs who claim to have suffered those proven birth defects will go on to have individualized trials of specific causation and damages. Whether this might be accomplished by sub-class recognition and trials of general causation for each sub-class with or immediately following the common issues trial or by a different method is a question best left to the parties and the case management judge. However, in this submission, Mr. Bates clearly "walked back" the concession apparently made to the motion judge that general causation would be left for individual trials.

[31] The proposed common issue always contained an aspect of causation despite counsel's concession. The motion judge's finding to the contrary was therefore a palpable error. The issue that preoccupied the motion judge was whether the appellants had materially changed their strategic position on the eve of the hearing of the certification motion. As a result, he did not recognize that counsel had over-stated the import and impact of the concession. That is, despite submitting that general causation would be left to individual trials, the common issue that counsel continued to propose included a general causation issue.

Issue #2: Did the motion judge err in finding that the appellants proposed the duty to warn as a common issue independent of general causation?

[32] In embarking on this issue, we hasten to observe that the motion judge was not asked to certify the duty to warn as a common issue independently from whether citalopram is a teratogen. Because of what we have found to be his erroneous conclusion about the appellants' "strategic decision", he undertook the duty to warn analysis in a vacuum of whether citalopram was a teratogen.

[33] In paragraph 3 of the factum, the appellants argue that the key errors made by the motion judge are found on page 28, and they demonstrate that the motion judge focused on what was different about "congenital malformations", rather than consider what was "common". Having correctly identified some basis in fact for the duty to warn issue, the motion judge did not explore what was "common" on a legislative standard that does not require the "same" malformation for each class member. The appellants assert that he denied the common issue because there will be individual issues.

[34] In paragraph 2 of the factum, the respondents take the position that the claim was broad and over-generalized in that it alleged that Lundbeck failed to warn that citalopram can cause any and all "congenital malformations", a catch-all phrase that includes upwards of 130 different types of birth defects ranging from minor cosmetic imperfections to major life threatening ones.

[35] Having found that the appellants had abandoned general causation as a common issue, the motion judge went on to analyze what he understood was the proposed common issue, namely the duty to warn. In paragraphs 118, 119, 121, and 129, the motion judge concluded that there was some basis in fact for finding that the duty to warn was a common issue. However, he went on as follows:

131. Upon analysis, while Ms. Price's proposed duty to warn issue exists, it has a fatal design flaw with respect to the commonality of the issue for her proposed class action, even accepting the truth of her expert witnesses' opinions. Ms. Price's strategic decision was too clever by half. The proposed duty to warn issue is a real issue, but it is not a common issue for two reasons.

132. First, the duty to warn itself is not common across the class because commonality does not exist and cannot be semantically manufactured over such a broad range of dangers. Commonality does not exist in the case at bar because congenital malformations present a broad range of potential hazards ranging from the risk of minor human body imperfections of a cosmetic nature to major imperfections that destroy the quality of a person's life or that destroy life itself.

133. As noted above, the adequacy of a warning depends upon the nature and gravity of the potential hazard and the nature and extent of any given warning will depend on what is reasonable having regard to all the facts and the circumstances relevant to the product in question. In the case there may be commonality for one or even some combinations of the more hazardous congenital malformations, but there is no conceivable commonality in warning about birth defects generally as if they were all of the same gravity.

134. Second, the duty to warn is not common because the resolution of it will not avoid duplication of fact-finding or legal analysis, because its resolution is not capable of meaningful extrapolation to assist each Class Member, and because even if the duty to warn issue was resolved favourably for the Class Members its resolution will not form a substantial part of each Class Member's case and very substantial individual inquiries will [be] required for each Class Member claims. Put bluntly, the duty to warn issue does not connect the dots for a common issues trial that has any utility for a class proceeding that inevitably ends with individual issues trials with very significant causation issues associated with the breach of the duty to warn. . . .

135. These points can be demonstrated. . . Notwithstanding Lundbeck's arguments to the contrary, the issue of whether Lundbeck breached a duty to warn exists and has an air of reality to it, but the issue is not a common issue because the breach of the duty would be inconsequential across the Class and each individual Class Member would be unharmed by the breach of the duty to warn unless they were actually harmed as a consequence of their ingestion of citalopram. . . .

136. After three-and-a-half years of litigation, Ms. Price apparently came to the strategic decision that there was some basis in fact for both the existence and the commonality of a duty to warn issue. That there may have also …[been]… some basis in fact for an issue about whether citalopram is a teratogen was of no moment for the purposes of certification because this issue could be resolved at individual issues trials.

137. Moreover, there [were]… very serious problems with Ms. Price's original proposal of causation issues about general causation. Based on Dr. Cabrera's evidence, there no some [sic] basis in fact for concluding that there was a plausible biological means by which citalopram could cause each and every birth defect and there was some basis in fact in the epidemiological evidence for concluding that citalopram might be a cause of cardiac congenital malformations; however… that evidence does not provide some basis in fact for the proposition that would be useful for a class proceeding. In other words, showing that there is some basis in fact for believing that citalopram is a teratogen only shows that some birth defects may be caused by citalopram and does not help in proving that the many and different congenital malformations in children born of [mothers]… who had ingested Celexa® were caused by citalopram.

138. But as I have already said, all of the parties' arguments about whether there is some basis in fact for a common issue based on general causation is of no moment because there is no such common issue being proposed. And while there is some basis in fact for an issue about a duty to warn, it is not a common issue for the reasons set out above. [Emphasis added]

[36] As indicated in paragraphs 132 and 134 of the decision, the motion judge rejected the duty to warn for two reasons: because it is not common over such a broad range of potential hazards, and because the resolution of it will not avoid duplication of fact-finding or legal analysis. It is quite clear in paragraph 140, however, that these conclusions were premised on counsel's concession that general causation was not a proposed common issue.

[37] As we have found that the proposed common issue contains a question of causation that may be common to all proposed class members, we cannot agree with the motion judge's first reason for rejecting it.

[38] The second basis for rejecting the duty to warn as a common issue was that the resolution of it will not avoid duplication of fact-finding or legal analysis for two reasons: (i) because its resolution is not capable of meaningful extrapolation to assist each class member, and (ii) because even if the duty to warn issue was resolved favourably for the class members, its resolution will not form a substantial part of each class member's case and very substantial individual inquiries will be required for each class member's claim.

[39] A motion judge's weighing of the relative importance of the common issue is a matter of judgment to which deference is owed. However, as noted above, the focus by the motion judge on the appellants' "strategic decision" led him to make a palpable error that carries into this issue as well.

[40] In the analysis of the common issues found in paragraphs 112 to 141, the motion judge directly or indirectly referred to the appellants' "strategic decision" in the following paragraphs: 122 to 127, 131 and 138. Having concluded that the appellants did not propose a common issue on causation, the motion judge then considered the possible common issue of duty to warn in the following overlapping paragraphs: 129 to 138. Based on the analysis in paragraphs 112 to 141, we observe that the analysis of the "strategic decision" and the duty to warn issue overlapped. It is not possible to segregate the thinking of the motion judge on the duty to warn issue. The analysis of the duty to warn common issue was informed and affected by the criticism of the motion judge about the appellants' "strategic decision" as demonstrated by his observation in paragraph 131 (in the duty to warn analysis) that the appellants' strategic decision was "too clever by half". The palpable error we have found with respect to the common issue proposed by the appellants is inextricable from the motion judge's finding that (a) the appellants proposed a duty to warn common issue in a vacuum of a general causation common issue and (b) the duty to warn is not a substantial ingredient of the class members' claims.

[41] As a result, the outcome of the proceeding turned on the palpable error that we have found. Therefore, the error is also overriding as that term is discussed in the case law.

[42] In our view, this court ought not to show deference to the decision because the motion judge made the following palpable and overriding errors:

(a) in concluding that the appellants had made a strategic decision that excluded all general causation issues from the common issue; and

(b) in reframing and analyzing the common issue as the duty to warn in isolation of the subject of the duty, namely, to warn that citalopram is or may be a teratogen.

CONCLUSION

[43] In view of those palpable and overriding errors, the finding by the motion judge that the appellants have not established a common issue must be set aside.

Issue #3: Did the motion judge err in finding that the appellants had not established that a class action was the preferable procedure?

[44] In paragraphs 142 to 152, the motion judge set out many of the principles that must be considered in determining whether the appellant has satisfied the preferable procedure criterion. In paragraph 153, the motion judge held that since the common issue criterion was not satisfied, the preferable procedure criterion was not satisfied.

[45] In paragraphs 154 to 156, the motion judge went on to observe how the strategic decision of the appellants to defer the general causation issues to individual issues trials and his consideration of the duty to warn issue independent of the general causation issue, meant that the preferable procedure criterion was not satisfied. It is apparent that the motion judge's resolution of this issue is derivative of his conclusion on the common issue criterion and is therefore also a palpable and overriding error.

[46] The motion judge never considered the issue of whether a class action was a preferable procedure on the proposed common issue including the question of whether citalopram is a teratogen. On this basis, his conclusion cannot stand.

Issue #4: What is the appropriate remedy?

[47] As indicated in paragraph 1 above, the appellants ask that the appeal be granted and that the class action be certified as one or more class actions. In the alternative, the appellants request that the matter be sent back to the Superior Court for further consideration of the certification motion based on this court finding the following common issue:

From 1999, did the Defendants breach a duty to warn Canadian physicians and patients that citalopram is or may be a teratogen?

[48] The proposed common issue concerns the state of knowledge respecting risks of citalopram during the time the duty to warn is alleged to have existed. If the duty to warn is established, the plaintiffs will still have to establish that citalopram caused the injuries alleged by the plaintiffs. As noted above, it appears that this causation issue will require evidence that (a) citalopram can cause the plaintiffs' alleged injuries; and (b) citalopram did cause the injuries suffered by the plaintiffs. As a matter of common sense, there will be overlap in the evidence relevant to the duty to warn causation issue and the other causation issues, but the latter will be assessed on the state of knowledge existing as of the time of trial.

[49] While an appellate court has the jurisdiction to substitute its decision for that of a motion judge, it would not be appropriate to do so here. We have found that the common issue advanced by the plaintiffs includes at least one aspect of general causation that may be common across the proposed class, and that this aspect may bear upon other causation issues in the case. However, as indicated in paragraphs 32 to 42 above, there has yet to be consideration of whether the common issue as proposed satisfies each aspect of the applicable test. We are not in a position to make a decision at first instance as to the effect of the proposed common issue with its remaining general causation aspect and perhaps group general causation as proposed by Mr. Bates before us. As this discussion should make clear, these are decisions to be made at first instance, by the judge who would then be responsible for moving forward with the litigation if the class is certified. The certification motion must be heard afresh.

[50] In our view, the proper remedy is to send the matter back, to be heard by another judge.

ORDER TO GO AS FOLLOWS:

[51] The decision dated August 13, 2018 is set aside.

[52] The certification motion is to be heard by another judge. Within 10 business days of release of these reasons for decision, counsel shall contact the Associate Chief Justice to arrange a case conference to schedule next steps. The parties do not need an order to be signed and entered prior to the case conference.

[53] On consent, there will be no costs of this appeal.

Kiteley J.

D.L. Corbett J.

Myers J.

Released: February 11, 2020

CITATION: Price v. H. Lundbeck A/S, 2020 ONSC 913

COURT FILE NO.: DC 500/18 DATE: 20200211

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JENNIFER PRICE, Individually, and MATTHEW JANZIC, a Child, by his Natural Mother and Litigation Guardian, Jennifer Price Plaintiffs/Appellants

– and –

H. LUNDBECK A/S and LUNDBECK CANADA INC. Defendants/Respondents

REASONS FOR DECISION

Kiteley J. D.L. Corbett J. Myers J.

Released: February 11, 2020

[^1]: 2018 ONSC 4333. [^2]: S.O. 1992, c. 6. [^3]: "SSRI". [^4]: In paragraph 99, the motion judge accepted the respondent's submissions that (a) persons were who prescribed Celexa® but used a generic version ought not to be included; and (b) the class should include "prescribed and ingested". [^5]: The reasons for decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para 37, do not change the standard of review in this case. [^6]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 6; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 69; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 81. [^7]: AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949, at para. 65; Pearson v. Inco Ltd. (2005), 2006 913 (ON CA), 78 O.R. (3d) 641, at para. 43, leave to appeal refused, [2006] S.C.C.A. No. 1; Fehr v. Sun Life Assurance Co. of Canada, 2018 ONCA 718, 84 C.C.L.I. (5th) 124, at para. 39; Hodge v. Neinstein, 2017 ONCA 494, 136 O.R. (3d) 81, at paras. 115 and 149, leave to appeal refused, [2017] S.C.C.A. No. 341.