Kutlu v. Laboratorios Leon Farma, S.A., 2016 ONSC 2127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CARLEEN KUTLU, PAIGE TOWLE and REBEKAH THOMAS
Plaintiffs
– and –
LABORATORIOS LEON FARMA, S.A., CHEMO IBERICA, S.A. and APOTEX INC.
Defendants
Won J. Kim and Megan B. McPhee for the Plaintiffs
Anthony Tibbs for the Merchant Law Group LLP
Paul Le Vay for "AL"
HEARD: March 24, 2016
REASONS FOR DECISION
PERELL, J.
1Because I do not wish this motion to harm the budding career of a young associate lawyer who was left to hold the bag of blame that should be carried by the Merchant Law Group, I am going to refer to her and several others by initials. I shall refer to her as "AL" (Associate Lawyer).
2This is a motion for an order restraining the Merchant Law Group and any members, employees or agents of the firm from contacting any of the plaintiffs who retained Kim Orr Barristers P.C. as counsel in their action against Laboratorios Leon Farma, S.A., Chemo Iberica, S.A. and Apotex Inc. and for other ancillary relief.
3For the following reasons I grant the motion, but without any injunctive relief. Rather, I order and declare that it would be a breach of their duties that they owe to this court for the Merchant Law Group, its lawyers, employees, or agents from communicating in any way with Kim Orr Barristers' clients. I order the Merchant Law Group LLP to pay costs of $15,000 all-inclusive of fees, disbursements and taxes, to the plaintiffs.
4This is the third unfortunate interlocutory motion in what was at one time a proposed class action under the Class Proceedings Act, 1992, S.O. 1992, c. 6. See Kutlu v. Laboratorios Leon Farma, S.A., 2015 ONSC 5976 and Kutlu v. Laboratorios Leon Farma, S.A., 2015 ONSC 7117.
5The background to the current motion is that Kim Orr Barristers were the lead counsel in a proposed national class action brought on behalf of women who were prescribed Alysena 28. In that proposed class action, it was alleged that the defendant manufacturers assembled the wrong mix of active and placebo pills with the result that there were unwanted pregnancies, some of which were aborted and some of which saw the birth of children with serious disabilities and some of which caused physical and mental harm to the birthmothers.
6At the time that the proposed class action was commenced in Ontario, a rival national class action, the Kohler Action, had already been commenced in Alberta by Merchant Law Group. There were discussions between Kim Orr Barristers and Merchant Law Group to co-operate and co-ordinate the actions, but those discussions proved futile, and a certification hearing proceeded in Alberta ahead of the Ontario Action.
7After the Kohler Action was certified for settlement purposes, I discontinued the Ontario Action as a proposed class action, but I allowed the Ontario Action to be reformulated as a joinder of claims for those putative Class Members who might wish to opt-out of the Alberta Action.
8The result was that 62 women with serious personal injury claims signed retainer agreements with Kim Orr Barristers for the reconstituted action.
9In October 2015, on behalf of its 62 clients, Kim Orr Barristers wrote letters opting them out of the Kohler Action in Alberta.
10As it happens, before joining the Ontario Action and before the opt-out notices were delivered, one of the plaintiffs, "ML", contacted the Merchant Law Group to make inquiries about perhaps continuing to participate as a class member in the Kohler Action, but she made the decision to join the Ontario Action.
11After the opt-out notices were received in Alberta, it next happened that Associate Chief Justice Rooke certified an expanded definition of the class in the Alberta Action, extended the opt-out period to November 30, 2015, and allowed class members who had previously opted out to revoke their opt-outs and to be given an opportunity to participate in the claims process.
12The Merchant Law Group took the class members' opportunity to revoke their opt-outs as an opportunity of its own, and it drafted the letter that the administrator sent out to the class members. The letter was offensive because it suggested to the recipient that his or her lawyer was acting without instructions or improperly in delivering an opt-out notice.
13When it became aware that its clients were receiving the administrator's letter, Kim Orr Barristers responded with a motion for an injunction, which I dismissed, because no harm was actually caused by the offensive language; none of Kim Orr Barristers' clients exercised their right to revoke their opt-out notices, and thus, there was no reason for this court to make a mandatory or a restrictive injunction. I dismissed the injunction motion without costs.
14That should have put the matter to rest, but it did not, because six months later, as the administration of the Alberta Action was moving towards its final stages, Joshua Merchant of the Merchant Law Group (Alberta office) directed "PA" (a Paralegal Assistant), to follow up on any outstanding inquiries that had been made.
15PA determined that there were four inquiries from Ontario that were outstanding and she drafted four letters for AL's signature. One of the four letters was to ML, the client of Kim Orr Barristers.
16PA picked AL to sign the letters because Mr. Merchant was away on business and because AL practiced in the Ontario office.
17Without knowing anything about the action in Alberta, with which she was not involved, and with no knowledge of the history of the rivalry between the Alberta Action and the Ontario Action and without reviewing the file or making any inquiries at all, AL did what she was told, and she signed the letters.
18Unfortunately, this letter signed by AL on the letterhead of the Merchant Law Group should not have been drafted or sent. The Merchant Law Group knew that it was writing to someone else's client, and it knew or ought to have known that this letter was inappropriate both as a matter of legal ethics but also in the context of civil procedure, and most particularly inappropriate having regard to the history of the squabble that was supposed to have been resolved six months earlier.
19When the letter was received by ML, she was confused and upset. Here, it should be recalled that ML has a serious personal injury claim and she had already decided not to retain the Merchant Law Group to prosecute it. The Merchant Law Group knew, or if it had just checked its own file, which it ought to have done, it would have known that ML was somebody else's client.
20ML instructed her lawyers to bring an injunction motion to restrain the Merchant Law Group from contacting any of the plaintiffs who had retained Kim Orr Barristers.
21The Merchant Law Group resisted the motion on the basis that the court had no jurisdiction over it and on the ground that if the court had jurisdiction the well-known criteria for an interlocutory injunction of a serious issue to be tried, irreparable harm, and the balance of convenience, favoured dismissing the motion for an interlocutory injunction.
22I agree that the criteria for an interlocutory injunction have little or nothing to do with this motion. I, however, disagree that this court does not have jurisdiction. It has its inherent jurisdiction as a superior court to regulate the proceedings before it, its plenary jurisdiction under the common law and equity, and its disciplinary and supervisory jurisdiction over its officers of which the Merchant Law Group is a member.
23However, apart from making a declaration that it would be a breach of the Merchant Law Group's duties owed to this court to communicate in any way with Kim Orr Barristers' clients, once again, no particular harm has been done and nothing would be achieved by the court exercising the jurisdiction it does have over the Merchant Law Group.
24For these reasons, I grant the motion as aforesaid.
Perell, J.
Released: March 29, 2016
CITATION: Kutlu v. Laboratorios Leon Farma, S.A., 2016 ONSC 2127
COURT FILE NO.: CV-14-516761CP
DATE: 20160329
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CARLEEN KUTLU, PAIGE TOWLE and REBEKAH THOMAS
Plaintiffs
– and –
LABORATORIOS LEON FARMA, S.A., CHEMO IBERICA, S.A. and APOTEX INC.
Defendants
REASONS FOR DECISION
PERELL J.
Released: March 29, 2016