ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 08-CV-368950CP
DATE: March 13, 2012
BETWEEN:
Kenneth R. Parker
Plaintiff
- and -
Pfizer Canada Inc. and Pfizer Inc.
Defendants
Proceedings under the Class Proceedings Act, 1992
COUNSEL:
• Bryan C. McPhadden, Douglas Lennox, and Idan Erez for the Plaintiff
• Teresa Walsh and Ilana Schrager for the Defendants
HEARING DATE: March 6, 2012
PERELL, J.
REASONS FOR DECISION
[ 1 ] This is a pre-certification refusals motion in a proposed products liability class action under the Class Proceedings Act, 1992 , S.O. 1992, c. 6.
[ 2 ] The Defendant Pfizer Canada Inc. (“Pfizer”) sells the prescription drug varenicline under the brand name CHAMPIX®, as a treatment for tobacco addiction. Kenneth R. Parker, the proposed Representative Plaintiff, alleges that he and other members of the proposed class, experienced neuropsychiatric adverse events, including suicidal ideation, as a result of ingesting Champix. Whether this allegation is true is one of the proposed common issues in the proposed class action.
[ 3 ] Mr. Parker delivered an affidavit in support of his certification motion. Affidavits were also delivered from Patrick Dion, Simon Dunn, and Patricia Clow, who are proposed Representative Plaintiffs in parallel class proceedings in Québec, Alberta, and British Columbia.
[ 4 ] In support of the certification motion, Mr. Parker also delivered expert opinions from Dr. Martin Tremblay, who is a psychiatrist. In his first report, Dr. Tremblay opined about the side effects of Champix. In his second report, Dr. Tremblay responded to the report of Dr. Mehmet Sufuoglu, a defence psychiatrist, pharmacologist, and addictions expert.
[ 5 ] After a case conference and before the cross-examinations, Mr. Parker agreed to provide Pfizer with medical and pharmaceutical records, including clinical notes and records, provincial health insurance plan print-outs, and pharmaceutical histories for the proposed Representative Plaintiffs for the two years before their initial Champix prescription.
[ 6 ] In other cases, courts have ordered plaintiffs to provide evidence about their health and health records. In the immediate case, at my urging and to their credit, the parties settled the matter and the Plaintiffs agreed to disclose some of their medical history and some of their medical records. While agreeing to produce the medical records, Mr. Parker reserved the right to object to the relevancy of them on the certification motion.
[ 7 ] The records for the proposed Representative Plaintiffs were provided to Pfizer. In some instances, more records were provided than promised, and in asking for further production, Pfizer notes the inconsistency.
[ 8 ] Cross-examinations followed, and with the exceptions that are the subject matter of this refusals motion, the Representative Plaintiffs answered the questions asked of them.
[ 9 ] On his cross-examination, Mr. Parker testified that he began taking Champix in August 2007, and he continued using the drug until around December 2007. In January 3, 2008, he suffered an emotional breakdown at work, and on February 4, 2008, his wife interrupted his preparations to commit suicide.
[ 10 ] On his cross-examination, Mr. Dion testified that he took Champix from April to May 2010. After May 2010, he experienced paranoia, depression, and suicidal ideation, for which he was hospitalized in a psychiatric ward.
[ 11 ] On his cross-examination, Mr. Dunn testified that began taking Champix in mid-December 2007 and very soon thereafter experienced adverse effects, including violent dreams. In January of 2008, he assaulted his wife, daughter, and aunt and was arrested. He attempted suicide while in police custody.
[ 12 ] In her cross-examination, Ms. Chow testified about her daughter Heidi, who began taking Champix in June 2009, which she continued to do until her suicide on October 4, 2009 at the age of 22.
[ 13 ] Pfizer has a list of 11 questions or undertakings that it submits were not properly answered or for which the Plaintiffs improperly refused to provide answers.
[ 14 ] In this regard, Pfizer requests answers from Mr. Parker for the following two questions:
• Q. 412 – To produce Mr. Parker’s medical records relating to 39 sessions (from February 2008) referred to in the Mental Health Report following the February 23, 2009 discharge from the counselling program.
• Q. 412 – To produce Mr. Parker’s medical records relating to 6 sessions (from February 2008) with Dr. N. Purohit referred to in the Mental Health Report following the February 23, 2009 discharge from the counselling program.
[ 15 ] Pfizer requests answers from Mr. Dion for the following two questions:
• Q. 181 – To provide a copy of the document titled “Medical Profile” for Mr. Dion which would date back to 2006 so that the physicians could be identified.
• Q. 166 – To provide copies of Mr. Dion’s medical records for the period from June, 2010 to present.
[ 16 ] Pfizer requests answers from Mr. Dunn for the following six questions:
• P. 85 (3-5) – To provide a copy of the Consent Order which sets out the terms of counselling Mr. Dunn had to attend in exchange for the criminal charges relating to the January 21, 2008 assault being dropped.
• P. 87 (21-23) To provide copies of records and certificates of completion relating to Mr. Dunn’s counselling at the Manchester Road facility in respect of family violence, substance abuse, and anger management.
• P. 90-91 (25-18) – To provide copies of Dr. Lun’s records pertaining to Mr. Dunn.
• P.95-96 (19-23) – To provide copies of any adverse effect reports Mr. Dunn and Dr. Siauw made to Health Canada regarding Mr. Dunn’s alleged adverse reaction to Champix.
• P. 105 (6-8) - To provide copies of the counselling records for additional counselling through EAP and grief counselling Mr. Dunn attended after the January 21, 2008 events.
• P. 110 (2-18) – To provide copies of Mr. Dunn’s psychiatric and psychological records for the period of 2005 to present.
[ 17 ] Pfizer requests an answer from Ms. Chow to the following question:
• Qs. 223, 390 – To provide Alicia Thompson’s contact information.
[ 18 ] As appears, the unanswered questions or refusals on the various cross-examinations concern the production of additional medical and pharmaceutical records from the personal histories of the proposed Representative Plaintiffs. Pfizer submits that it requires answers to these questions to address whether there is some basis in fact for the proposed common issue of whether ingestion of Champix, as opposed to other factors, can cause an increased risk of neuropsychiatric adverse events, including suicidal behaviour. Pfizer submits that the additional medical records are relevant to: (a) commonality; (b) the significance of the proposed common issues in relation to individual issues; (c) the preferable procedure criterion; and (d) whether Mr. Parker will fairly and adequately represent the proposed class.
[ 19 ] For his part, Mr. Parker submits that the unanswered questions were properly refused because the information sought goes beyond what is proper for a certification motion, which is a procedural motion and not about the merits of the action. He submits that the evidentiary record already discloses "some basis in fact" to satisfy the certification criteria. Mr. Parker submits that there is no need for the production of additional evidence. He submits that based on what is now on the record, it is exceedingly unlikely that Pfizer will succeed in refuting that there is some basis in fact for Champix being a cause of the neuropsychiatric adverse events described by the proposed Representative Plaintiffs. He submits that there is enough on the record to make Pfizer’s point that there may be other causes, i.e., other co-morbidities, for the adverse events and no additional medical evidence is necessary for the purposes of the certification motion.
[ 20 ] I do not agree with Mr. Parker’s proffered reason or justification for refusing to provide additional information to Pfizer. As I view it, Mr. Parker’s submission amounts to the proposition that in a proposed class action, Defendants opposing certification should be denied the right to show that there is no basis in fact for the certification criteria when the information already produced by the Plaintiff demonstrates that the Defendant will inevitably fail to refute the Plaintiff’s very light evidentiary burden of showing some basis in fact.
[ 21 ] In my opinion, this proposition, if accepted, would operate unfairly to deny Defendants the right to attempt to satisfy what is undoubtedly a very heavy evidentiary burden. Defendants do from time to time show that there is no basis in fact for a certification criterion, and, they have the procedural right to attempt to do so. Therefore, I would not for the reason offered by Mr. Parker deny Pfizer the right or opportunity to obtain additional relevant information from the Plaintiffs.
[ 22 ] That said, for the reasons that follow, I am dismissing Pfizer’s motion. In my view, Pfizer’s request for additional medical and other information from the Plaintiffs goes beyond the scope of proper questioning on a cross-examination for a certification motion and offends the proportionality principle.
[ 23 ] In Ontario v. Rothmans Inc. , 2011 ONSC 2504 , I discuss the law about the scope of examinations at trial, at examinations for discovery, and for motions and applications. In Ontario v. Rothmans Inc. , my review of the case law revealed the following principles are applied to determine the scope of a cross-examination for use on an application or motion (including a motion for certification of an action as a class action):
• The scope of a cross-examination of a deponent for an application or motion is narrower than an examination for discovery.
• A cross-examination is not a substitute for examinations for discovery or for the production of documents available under the Rules of Civil Procedure.
• The examining party may not ask questions on issues that go beyond the scope of the cross-examination for the application or motion.
• The questions must be relevant to: (a) the issues on the particular application or motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (c) the credibility and reliability of the deponent's evidence.
• If a matter is raised in, or put in issue by the deponent in his or her affidavit, the opposite party is entitled to cross-examine on the matter even if it is irrelevant and immaterial to the motion before the Court.
• The proper scope of the cross-examination of a deponent for an application or motion will vary depending upon the nature of the application or motion.
• A question asked on a cross-examination for an application or motion must be a fair question.
• The test for relevancy is whether the question has a semblance of relevancy.
• The scope of cross-examination in respect to credibility does not extend to a cross-examination to impeach the character of the deponent.
• The deponent for an application or motion may be asked relevant questions that involve an undertaking to obtain information, and the Court will compel the question to be answered if the information is readily available or it is not unduly onerous to obtain the information.
• The deponent for a motion or application who deposes on information and belief may be compelled to inform himself or herself about the matters deposed.
• Cross-examinations for applications or motions are subject to the proportionality principle.
[ 24 ] Applying these principles to the case at bar, although the Plaintiffs have reserved the right to challenge the admissibility of the evidence, the additional information sought by Pfizer appears to be relevant, in as much as the information relates to whether there is some basis in fact for the certification criteria. The questions satisfy the test of being relevant to: (a) the issues on the certification motion; (b) the matters raised in the affidavits of the Plaintiffs; or (c) the credibility and reliability of the Plaintiff’s evidence.
[ 25 ] Pfizer, however, asks for more information than already provided. How much information a Plaintiff or Defendant in a proposed class action should be obliged to disclose before a contested certification motion is a difficult question. The general rule is that the Court may order documentary discovery and cross-examinations in a potential class action restricted to what is necessary to inform the certification process; see: Pro-Sys Consultants Ltd. v. Microsoft Corp . 2007 BCSC 1663 ; Murray v. Alberta (Minister of Health) , 2007 ABQB 231 ; Pardy v. Bayer Inc. , 2003 NLSCTD 130 ; Kimpton v. Canada (Attorney General) , 2002 BCSC 67 ; Samos Investments Inc. v. Pattison , 2001 BCSC 440 , [2001] B.C.J. No. 578 (B.C.S.C.); Hoy v. Medtronic, Inc. , [2000] B.C.J. No. 1490 (B.C.S.C.) ; Mathews v. Servier Canada Inc. , 1999 5900 (BC SC) , [1999] B.C.J. No. 435 (B.C.S.C.).
[ 26 ] In Caputo v. Imperial Tobacco Ltd . (1997), 34 O.R. (3d) 314 (Gen. Div.), Justice Winkler, as he then was, stated at p. 320:
The CPA is a procedural statute, rather than substantive, and creates no new cause of action. A motion for certification under the Act deals only with whether the action ought properly to proceed by way of class action. …. Accordingly, any inquiry into the merits of the action will not be relevant on a motion for certification. The examination must be confined to those issues on the motion for certification on which the plaintiffs may have relevant evidence to assist the court. While evidence pertinent to the issues on the motion may, on occasion, overlap with evidence going to the merits of the action, this incursion may be permissible if the evidence sought is also relevant to the motion.
[ 27 ] In Roveredo v. Bard Canada Inc. , 2010 ONSC 5240 , Justice Strathy grappled with the question of the difference between an inquiry for the purposes of the certification motion and an inquiry into the merits of the action. He noted that a certification motion is not a test of the merits of the action and that the evidentiary burden on the Plaintiff is modest. He stated that it is undesirable that Plaintiffs (and I would add Defendants) be subjected to burdensome production motions and extensive cross-examinations on what is meant to be a procedural motion.
[ 28 ] However, Justice Strathy also noted that the Court may require a Plaintiff to produce additional documentation, including medical records, to enable the Defendant to properly respond to the Plaintiff's evidence and to ensure that there is an adequate evidentiary record. For example, commonality and preferable procedure may appear obvious when looking at the pleadings or a limited record, but these criteria may become less obvious when a full and balanced record is available. Further, the process must be fair, and the Defendant must be given a reasonable opportunity to respond to the Plaintiff's evidence.
[ 29 ] Justice Strathy observed further that before the certification motion, it is difficult to determine whether a proper examination has become an impermissible excursion into the merits begins. He stated that before certification, it is not easy to determine whether a particular piece of evidence, viewed in isolation, will assist the Court in addressing the certification test. Justice Strathy decided that ultimately, the decision to order the production of information, including medical records, is driven by the circumstances of the particular case and requires a degree of balancing.
[ 30 ] I agree with Justice Strathy’s comments, and I would adopt his approach to the circumstances of the case at bar. In my opinion, Pfizer has had a fair opportunity to gather evidence to make the points it needs to make for the purposes of the certification motion and further production of medical records will unfairly burden the Plaintiffs. Recalling that the Plaintiffs provided medical records and were forthcoming in answering questions on their respective examinations, Pfizer’s request is disproportionate to the needs of the certification motion and goes beyond what is necessary to inform the certification hearing.
[ 31 ] Accordingly, I dismiss Pfizer’s motion.
[ 32 ] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with submissions from Mr. Parker within 15 days of the release of these Reasons for Decision followed by Pfizer’s submissions within a further 15 days.
Perell, J.
Released: March 13, 2012
COURT FILE NO.: 08-CV-368950CP
DATE: March 13, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kenneth R. Parker
Plaintiff
‑ and ‑
Pfizer Canada Inc. and Pfizer Inc.
Defendants
REASONS FOR DECISION
Perell, J.
Released: March 13, 2012.