Court File and Parties

COURT FILE NO.: CV-13-482667CP DATE: 20160809 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: KIMBERLEY BABIN Plaintiff – and – BAYER INC., BAYER PHARMA AG, and BAYER OY Defendants

Counsel: Bryan McPhadden for the Plaintiff William McNamara and W. Grant Worden for the Defendants

Proceeding under the Class Proceedings Act, 1992

HEARD: July 26, 2016

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] The Defendants, Bayer Inc., Bayer Pharma AG, and Bayer OY (collectively “Bayer”) are sued in four proposed national class actions, two in Alberta, one in Québec, and this one in Ontario, in which the plaintiff is Kimberley Babin.

[2] The representative plaintiffs in the four actions, Mesdames Kimberley Babin, Cindy Chrenek, Elizabeth Todd, and Ninon Bertrand allege that Bayer was liable for negligence for its failure to warn that its contraceptive intrauterine device with the brand name “Mirena” could migrate in the body causing personal injuries.

[3] There is a consortium of lawyers acting as Class Counsel for the representative plaintiffs. The Consortium is comprised of: McPhadden Samac Tuovi LLP, in Ontario; Docken & Company, formerly Docken Klym, in Alberta; and Lex Group Inc., in Québec.

[4] Initially, the Consortium decided to prosecute only the class action(s) in Alberta. As a result, the actions in Québec and in Ontario were informally stayed; i.e. in the patois of the class action cognoscenti the Québec and Ontario actions were “parked.”

[5] Recently, there has been a change in the Consortium’s plans and the Class Counsel in Ontario, McPhadden Samac Tuovi, now seek to schedule a certification motion of Ms. Babin’s proposed class action.

[6] The Defendants, however, object, and they have brought a motion to have the Ontario action stayed in favour of the Alberta action(s).

[7] In response to the Defendants’ pending stay motion, Peter Tuovi, who is a partner at McPhadden Samac Tuovi, delivered an affidavit. He was cross-examined. He refused to answer certain questions about how it came about that the Consortium had changed its plans for prosecuting the various class actions.

[8] Now before the court is a refusals motion to compel Mr. Tuovi to answer the questions he refused to answer on his cross-examination.

[9] For the reasons that follow, the motion is dismissed.

B. FACTUAL AND PROCEDURAL BACKGROUND

[10] Bayer Pharma AG, which is a Germany corporation, is the parent corporation of Bayer OY, which is a Finland corporation that manufactures Mirena, a contraceptive intrauterine device. Bayer Pharma AG is also the parent corporation of Bayer Inc., which is a Canadian corporation that sells the Mirena device in Canada.

[11] On June 13, 2013, in Ontario, Ms. Babin issued her proposed products liability class action against Bayer Inc., Bayer Pharma AG, and Bayer OY ( Babin v. Bayer Inc. ). She alleges that Bayer failed to warn of the risk of the device migrating from the uterus. Her Statement of Claim was served on all of the Defendants. Ms. Babin’s lawyer of record is McPhadden Samac Tuovi.

[12] On June 26, 2013, in Alberta, Cindy Chrenek issued her proposed products liability class action against Bayer Inc. ( Chrenek v. Bayer Inc. ). She alleges that Bayer Inc. failed to warn of the risk of the device migrating from the uterus. Her Statement of Claim was served on Bayer Inc. Ms. Chrenek’s lawyer of record is Docken & Company. Justice Strekaf of the Court of Queen’s Bench was assigned to case manage Ms. Chrenek’s proposed national class action.

[13] Around this time, in Québec, Ninon Bertrand issued her proposed products liability class action against Bayer Inc., Bayer Pharma AG, and Bayer OY ( Bertrand c. Bayer Inc. ). She alleges that Bayer failed to warn of the risk of the device migrating from the uterus. Her Statement of Claim was served on all of the Defendants. Mme. Bertrand’s lawyer of record is Lex Group Inc. Justice Monast of the Superior Court of Québec was assigned to case manage Mme. Bertrand’s proposed national class action.

[14] On June 28, 2013, I was assigned to case manage Ms. Babin’s proposed national class action.

[15] In July 2013, there were discussions between McPhadden Samac Tuovi and Docken & Company about forming a consortium to prosecute a national class action against Bayer. These discussions, along with discussions with David Assor of Lex Group, culminated in June-July 2014 with a consortium agreement and a decision to seek national certification in Alberta. The case management judges were advised of this development.

[16] On October 1, 2014, in Alberta, Elizabeth Todd issued her proposed class action against Bayer Inc., Bayer Pharma AG, and Bayer OY ( Todd v. Bayer Inc. ). She alleges that Bayer failed to warn of the risk of the device migrating from the uterus. Her Statement of Claim was served on Bayer Inc. However, she has never served her Statement of Claim on Bayer Pharma AG or Bayer OY. In the Alberta action, the time for serving the foreign defendants with the claim has expired. Ms. Todd’s lawyer of record was McPhadden Samac Tuovi.

[17] In his affidavit for the pending stay motion, Mr. Tuovi explained at paras. 18 and 19 the reason for commencing a second class action in Alberta. He stated:

18. Accordingly, from the perspective of their liability, our preference was that the foreign defendants be parties to the litigation. To that end, when we commenced our own action in Alberta in October 2014, we named these defendants in addition to the Canadian defendant. That action was filed on October 1, 2014 and is attached hereto as Exhibit "U". We commenced that action when it appeared to us that unexplained delays were impeding the progress of Mr. Docken's Alberta action. Should those delays have proven to be temporary, we could consolidate our action with Mr. Docken's; should they prove to be persistent; however, we would have been able to prosecute our own action in Alberta more diligently.

19. If consolidation had proven to be unnecessary (upon the removal of the delays impeding prosecution of Mr. Docken's action) or difficult or impossible, we were content to proceed in Mr. Docken's Alberta action in which no foreign defendants were named: as I have explained, we were primarily interested in the foreign defendants' evidence and could probably obtain it from them as witnesses.

[18] In April 28, 2015, in Alberta, Chrenek v. Bayer Inc. and Todd v. Bayer Inc. were consolidated.

[19] In July 2015, with the time for serving the foreign defendants with the Statement of Claim in the Alberta action was due to expire on October 1, 2015, the Consortium proposed to Defence Counsel an agreement whereby the Plaintiffs would retain discovery rights against the foreign defendants but the action as against those defendants would be discontinued. Defence Counsel did not respond to the proposal.

[20] On October 26, 2015, Defence Counsel, by letter, raised the issue of the Consortium's failure to serve Bayer Oy and Bayer Pharma AG and requested that the Todd Statement of Claim be amended to remove them as parties. The Consortium did not respond to the letter.

[21] On January 4, 2016, Ms. Babin served her certification material in the Ontario action. The Consortium had already served its certification material in the Alberta action(s).

[22] Bayer responded with a motion to stay Ms. Babin’s action in Ontario as an abuse of process. Bayer submits that the Alberta action against Bayer Inc. is the only action that should be prosecuted.

[23] In response to Bayer’s motion, Ms. Babin delivered an affidavit sworn by Mr. Tuovi. In his affidavit, Mr. Tuovi explained how it came about that the Consortium had first decided to pursue certification in Alberta and then decided to also pursue certification in Ontario. In his affidavit, he deposed:

4. …. After the consortium was formed, we were persuaded that the proposed class action could proceed more expeditiously in Alberta than in Ontario. Accordingly, we decided to seek certification of a national class in Alberta. At the request of the defendants, we agreed not to prosecute the Ontario and Quebec actions if it meant re-litigating issues. We did not agree to a stay of any kind in respect of the Quebec or Ontario proceeding. With the passage of time, it became increasingly evident that the Alberta action was not proceeding expeditiously; this caused us to consider, and ultimately decide on, a return to prosecution on behalf of a national class in Ontario.

5. Contrary to the allegations made in the defendants' Notice of Motion herein, the decision to return to Ontario was driven entirely by concerns for expediency and had little to do with the fact that the time to serve the foreign defendants in the Alberta proceeding would come to expire in a few months.

6. When discussing with Mr. Docken the various Mirena class actions commenced across Canada and the possibility of our working together again, he asked whether we would consider pursuing the Mirena class action nationally in Alberta because, when we had worked together in the past we pursued class actions only through Ontario. Mr. Docken also expressed confidence that the certification motion in Alberta could be heard expeditiously and probably sooner than in Ontario. We agreed in June 2014 to finalize our consortium agreement with Docken Klym and to seek national certification in Alberta.

7. As I have stated, the Alberta action did not move forward expeditiously. Accordingly, the certification motion did not come to be heard there as promptly as expected when we originally agreed to suspend our Ontario action in favour of continuing in Alberta.

8. Throughout 2015, we were increasingly apprehensive that certification would not be heard anytime soon. We were coming around to the view that the delays impeding progress of Mr. Docken's Alberta litigation would not be overcome soon and were not temporary. No substantive progress was seemingly being made in consolidating our Alberta action with Docken Klym's Alberta action, and the defendants were insisting that service of the Alberta claim on the foreign defendants be a pre-condition to any discussion of a dismissal of the action against those foreign defendants in exchange for documentary production.

9. Accordingly, by the end of June 2015, we were giving serious thought to resuming our prosecution of the Mirena litigation in Ontario. In July 2015, while we were considering the merits of such an approach, but out of an abundance of caution, we served our Alberta proceeding on the Canadian defendant (on July 10, 2015) and considered an order extending the time to serve the foreign defendants in the Alberta proceeding. As our Alberta claim had been filed on October 1, 2014, the 1-year deadline to serve the foreign defendants under the Rules of Court of the Alberta Court of Queen's Bench would expire on October 1, 2015.

10. In August 2015, in light of the continuing lack of progress in Alberta, we decided to pursue certification in Ontario instead of Alberta (and Quebec). In 2013, and before entering into the consortium agreement, our certification record in Ontario had been close to completion. Also, all of the foreign defendants had been served with the Ontario proceeding.

11. We then undertook efforts to complete our Ontario certification record. To do so, we intended to use the same expert as had been retained relative to the Alberta action. Her affidavit in the Ontario action was sworn September 25, 2015, making clear that our decision to proceed in Ontario, and not Alberta, had been made sometime prior to that date and certainly prior to the October 1, 2015 deadline for service of the Alberta pleading on the foreign defendants. I observe that this time limit is in reference to service and not to a statutory limitation period.

12. I note that, if our decision was based only on a desire to avoid any difficulties that might arise from the failure to serve the foreign defendants with our Alberta process, it would have been considerably more expedient and economical for us simply to seek to have extended the October 2015 deadline to serve the foreign defendants in our Alberta proceeding, rather than to have reconstituted our certification record in Ontario. Indeed, we had drafted an extension order as early as July 2015.

[24] Mr. Tuovi was cross-examined on his affidavit. Mr. Tuovi refused to answer questions about: (a) the formation of the Consortium; (b) the Consortium’s decision to prioritize the Alberta action(s); (c) what steps the Consortium had taken to advance the Alberta action(s); and (d) why the Consortium had decided to now proceed with certification motions in Ontario and possibly Alberta. Below is the list of the refusals:

No. Q# Question 1. 82-84 82 . Q. ...when were the discussions initiated? A. Prior to March 15th, 2014. 83 . Q. Give me a specific date. A. I don't have a specific date. MR. McPHADDEN: I don't know that it is relevant, Counsel. 84. MR. McNAMARA: I think it is relevant but we can debate that later, I suppose. 2. 88-91 88. Q. How were the discussions initiated, either verbally or in writing through e-mail or correspondence? MR. McPHADDEN: Again, we are going to object to the question on the grounds of relevance. MR. McNAMARA: So we would like a copy... MR. McPHADDEN: And privilege. 90. MR. McNAMARA: ...of the documentation. MR. McPHADDEN: Relevance and privilege. 91. MR. McNAMARA: Okay. 3 112-118 112. Q. Okay. So I will turn back now to your affidavit, paragraph 4. About four lines down, there is a sentence that starts off: “...After the consortium was formed we were persuaded that [et cetera]..." So, let's just focus on the first phrase there, "after the consortium was formed". Do you see that? A. I do. 113. Q. So, I take it that Mr. McPhadden eventually did reach an agreement with Mr. Docken and Mr. Assor? A. That is my understanding. 114. Q. And when was that agreement reached? MR. McPHADDEN: I am going to object on the grounds of relevance and privilege. 115. MR. McNAMARA: Okay. BY MR. McNAMARA: 116. Q. What were the terms of the agreement? MR. McPHADDEN: Same again. BY MR. McNAMARA: 117. Q. Is the agreement in written form or confirmed in writing? Is there any documentation that supports it? MR. McPHADDEN: Objection on the grounds of relevance and privilege. 118. MR. McNAMARA: We would like a copy of it. I understand that there is an objection, but that... MR. McPHADDEN: Objection, yes. 4. 126 126. Q. So, who persuaded either you or Mr. McPhadden that the proposed class action would be more expeditious in Alberta? MR. McPHADDEN: That is again going into the internal workings of the consortium. We object to that on the grounds of privilege and relevance. Unless I say otherwise, you can take it that those are the bases of the objections. 5. 128-130 128. Q. And what were you or Mr. McPhadden told about how quickly a class action could proceed in Alberta? MR. McPHADDEN: He is referring to paragraph 9. THE DEPONENT: I am looking at paragraph 9 of my affidavit. Mr. Docken also expressed confidence that the certification motion in Alberta could be heard expeditiously and probably sooner than in Ontario. BY MR. McNAMARA: 129. Q. So you are referring to the second sentence in paragraph 9? That is what you are relying on? A. Yes. 130. Q. And was that information communicated in writing or just verbally? MR. McPHADDEN: We are not going to disclose that information. Objection to the question. 6. 207 207 . MR. McNAMARA: Would it be fair to say that when you asked her to swear an affidavit and submit a report in Babin, she simply took the report that she had done in Chrenek and that is the document that was used? MR. McPHADDEN: I don't know but I think we are delving too far into privileged matters and ... 7. 250 250. MR. McNAMARA: Okay. And no reason comes to mind as to why it happened [the Todd claim not served on the Bayer Pharma AG and Bayer OY]... MR. McPHADDEN: Well, there are, but I don't know that they need to be shared. 8. 255-267 255. MR. McNAMARA: So, why would you worry about consolidation? MR. McPHADDEN: Well, we would have preferred it for a number of reasons, which I don't care to share... 256. MR. McNAMARA: Which are what? MR. McPHADDEN: ... or tell, but we... we sought it because we thought there were advantages to the class. 257. MR. McNAMARA: You sought consolidation because there were advantages to the class? MR. McPHADDEN: We thought, yes. 258. MR. McNAMARA: And the advantages were that you would have the two foreign defendants and you would be able to get discovery from them? MR. McPHADDEN: Not limited to that but including that. 259. MR. McNAMARA: And so I don't understand, given that potential... your perception that there was an advantage there, I don't understand why... how that somehow explains not taking steps to serve them. MR. McPHADDEN: I suspect and I think it is supported by the dates that we are looking at if this is sworn end of February, filed March 2nd, and in May we have provided to Mr. Docken a draft of the agreement, is that the agreement whereby they wouldn't have to be served was already anticipated. THE DEPONENT: You would have had to prepare it before circulating it. MR. McPHADDEN: That's right. THE DEPONENT: And you would have had to discuss it before circulating it. 260. MR. McNAMARA: So from October to the end of February, you were preparing this document? MR. McPHADDEN: No. No. That document? Sometime between then but I wouldn't suggest to you for a moment that it was prepared in October. 261. MR. McNAMARA: So when did you start preparing it? MR. McPHADDEN: I don't know. We would have to see when the agreement to consolidate was reached. 262. MR. McNAMARA: So when was that reached? MR. McPHADDEN: That is something you would know about as well through discussions with... 263. MR. McNAMARA: Well, you are telling me precious little about the agreement. All I know is that there was a draft order that was circulated that you signed. Is that reflective of the agreement? MR. McPHADDEN: It might well be and I think probably would be. 264. MR. McNAMARA: That is tab M of our brief. So that is April. MR. McPHADDEN: Right. 265. MR. McNAMARA: So that you are saying is between April 28th, which is the date of this consent order and May, that is when you prepared the document that you sent to Mr. Docken that is referred to in paragraph 23 of the affidavit? MR. McPHADDEN: Well, I imagine that there were some discussions prior to the date of the order so drafting might have commenced before the date of the consolidation order, but around that time frame. 266. MR. McNAMARA: Okay. So, that still leaves us with the October to February time frame. My original question: No particular reason comes to mind as to why you didn't... MR. McPHADDEN: Well, I think I have already indicated is the determination hadn't been made whether or not we were going to pursue one, the other, or consolidate. 267. MR. McNAMARA: Okay. And when did...I take it, then, during that period of time there were discussions with Mr. Docken about which action was going to be pursued? MR. McPHADDEN: I am not going to get into that. 9 328-332 328. MR. McNAMARA: Okay. So my initial question was what happened to make it apparent that it wasn't proceeding expeditiously enough. And you said, "Well, we prepared materials in support of certification". And so how did that...how did that relate to Alberta not going... MR. McPHADDEN: In a nutshell, we had disclosed that the consortium existed to defence counsel in...what did we establish it to be? June or July of 2014. THE DEPONENT: 2014. MR. McPHADDEN: And here we were coming on a year later and notwithstanding the material that had been prepared in advance for Ontario, a timetable had not yet been agreed to in Alberta. 329. MR. McNAMARA: A timetable for the case going forward? MR. McPHADDEN: Right. For the certification motion. 330. MR. McNAMARA: And what was the cause of the timetable not having been agreed to? MR. McPHADDEN: I am not sure that we know all the reasons. 331. MR. McNAMARA: Sorry? MR. McPHADDEN: I am not sure that we know all the reasons. 332. MR. McNAMARA: What reasons do you know? MR. McPHADDEN: I don't think we are going to get into that. 10. 336-350 336. MR. McNAMARA: I'm sorry to interrupt you, but you said the problem was there was no timetable a year later. MR. McPHADDEN: Right. 337. MR. McNAMARA: What steps did you take to get a timetable? MR. McPHADDEN: We weren't the ones who were attending the case conferences or arranging the case files. 338. MR. McNAMARA: But you are counsel for Ms. Chrenek. Why weren't you? MR. McPHADDEN: Well, we weren't the ones dealing directly with Mr. Leurer. 339. MR. McNAMARA: With who? MR. McPHADDEN: The Alberta counsel. 340. MR. McNAMARA: With Mr. Leurer? MR. McPHADDEN: Correct. 341. MR. McNAMARA: But what steps did you take to request a case conference, for example? To get... MR. McPHADDEN: We weren't the ones corresponding with him so we wouldn't have been the ones to do that. 342. MR. McNAMARA: So you didn't do it? MR. McPHADDEN: It wasn't our responsibility in the context of the consortium. 343. MR. McNAMARA: So, whose responsibility was it? MR. McPHADDEN: Not ours. 344. MR. McNAMARA: Was it Mr. Docken's? MR. McPHADDEN: I think we have already indicated that each firm was going to be responsible for their own province. 345. MR. McNAMARA: Well, you have not indicated that at all. MR. McPHADDEN: I thought Mr. Tuovi had. 346. MR. McNAMARA: I don't think so. So it was Mr. Docken who was responsible for that? MR. McPHADDEN: Yes. 347. MR. McNAMARA: And so what steps did you take to stir Mr. Docken into action? MR. McPHADDEN: That we are not going to disclose. That is another internal sort of consortium. 348. MR. McNAMARA: Did you take any steps to stir him into action? MR. McPHADDEN: We are not going to answer that question for the reasons previously stated. 349. MR. McNAMARA: Did you have any discussions with Mr. Docken about trying to get a timetable? MR. McPHADDEN: I object to the question for the same reasons. 350. MR. McNAMARA: Did you ever complain to Mr. Docken that it wasn't moving quickly enough? MR. McPHADDEN: We are not going to disclose that for the same reasons. 11. 357 357 . MR. McNAMARA: And in terms of the consolidation, my question is about what was done by you or by Mr. Docken if he was a person on the point for that issue to get things moving. You are not going to tell me what steps you took? MR. McPHADDEN: We are not going to disclose matters internal to the consortium. 12. 367 BY MR. McNAMARA: 367. Q. Did you ever inquire of Mr. Docken whether, in fact, he had sent the agreement document to Mr. Leurer? MR. McPHADDEN: I am not going to get into that kind of thing. It is internal to the consortium. 13. 380-386 BY MR. McNAMARA: 380. Q. The decision to proceed in Ontario was made in August of 2015? MR. McPHADDEN: Right. THE DEPONENT: Yes. BY MR. McNAMARA: 381. Q. The two major indicators of lack of progress in Alberta were the lack of an agreement as to timetable and the failure to get a consolidation order? MR. McPHADDEN: You condition that on the two visible, did you say? Your question... 382 MR. McNAMARA: The two that you have mentioned so far. THE DEPONENT: Two visible criteria...those were certainly two visible criteria. BY MR. McNAMARA: 383. Q. Were there any other criteria? MR. McPHADDEN: Well, there might be other but they would be internal to the consortium. But certainly the fact that there was not a timetable established. 384. MR. McNAMARA: Okay. MR. McPHADDEN: Was significant to us. 385. MR. McNAMARA: Sorry, the last part? MR. McPHADDEN: Was significant to us. 386. MR. McNAMARA: And you are not going to tell me...you are standing on your refusal to tell me what steps, if any, you took to clear up the logjam and keep things moving expeditiously? MR. McPHADDEN: Yes, as a general rule, and hopefully we have adhered to it. I have certainly intended to... not to disclose internal consortium dealings.

C. DISCUSSION AND ANALYSIS

[25] In Ontario v. Rothmans Inc., 2011 ONSC 2504, which was an appeal from a Master’s decision on a refusals motion, I examined at some considerable length the law about the scope of cross-examinations of deponents for applications and motions. For present purposes, the discussion at paragraphs 142-144, and 148 is pertinent; that is:

142. Case law has determined what are proper questions for a cross-examination on an affidavit. Once again, relevancy is a key determinant of a proper question, and relevancy is determined by reference to the matters in issue in the motion in respect of which the affidavit has been filed and by the matters put in issue by the deponent’s statements in the affidavit. The scope of the cross-examination for an application or motion only coincidentally will be commensurate with the scope of an examination for discovery.

143. The case law has developed the following principles about the scope of the cross-examination of a deponent for an application or motion:

• The scope of a cross-examination of a deponent for an application or motion is narrower than an examination for discovery: BOT Construction (Ontario) Ltd. v. Dumoulin, [2007] O.J. No. 4435 (S.C.J.) at para. 6.

• The examining party may not ask questions on issues that go beyond the scope of the cross-examination for the application or motion: Thomson v. Thomson, [1948] O.W.N. 137 (H.C.J.); Toronto Board of Education Staff Credit Union Ltd. v. Skinner, [1984] O.J. No. 478 (H.C.J.) at para. 12; Westminer Canada Holdings Ltd. v. Coughlan, [1989] O.J. No. 3038 (H.C.J.).

• 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: Superior Discount Limited v. N. Perlmutter & Company; Superior Finance Company v. N. Perlmutter & Company, [1951] O.W.N. 897 (Master) at p. 898; Re Lubotta and Lubotta, [1959] O.W.N. 322 (Master); Wojick v. Wojick, [1971] 2 O.R. 687 (H.C.J.); Toronto Board of Education Staff Credit Union Ltd. v. Skinner, [1984] O.J. No. 478 (H.C.J.) at para. 11; BASF Canada Inc. v. Max Auto Supply (1986) Inc., [1998] O.J. No. 3676 (Master) at paras. 6, 10-11; Caputo v. Imperial Tobacco Ltd., [2002] O.J. No. 3767 (Master) at paras. 14-15; BOT Construction (Ontario) Ltd. v. Dumoulin, [2007] O.J. No. 4435 (S.C.J.) at para. 4; Shannon v. BGC Partners LP, 2011 ONSC 1415 (Master) at para. 8.

• 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: Wojick v. Wojick and Donger, [1971] 2 O.R. 687 (H.C.J.), at p. 688; Ferring Inc. v. Richmond Pharmaceuticals Inc., [1996] O.J. No. 621 (Div. Ct.) at paras. 14 and 15; Logan v. Canada (Minister of Health), [2001] O.J. No. 6289 (Master); Guestlogix Inc. v. Hayter, 2010 ONSC 5570 at para. 16.

• 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: Blum v. Sweet Ripe Drink Inc. (1991), 47 C.P.C. (2d) 263 (Ont. Master); Moyle v. Palmerston Police Services Board (1995), 25 O.R. (3d) 127 (Div. Ct.).

• A question asked on a cross-examination for an application or motion must be a fair question: Superior Discount Ltd. v. N. Perlmutter & Co., [1951] O.W.N. 897 (Master) at p. 898; Canadian Bank of Commerce (CIBC) v. Molony, [1983] O.J. No. 221 (H.C.J.) at para. 3; Seaway Trust Co. v. Markle, [1988] O.J. No. 164 (Master); BASF Canada Inc. v. Max Auto Supply (1986) Inc., [1998] O.J. No. 3676 (Master) at para. 6. …

• The test for relevancy is whether the question has a semblance of relevancy: Re Lubotta and Lubotta, [1959] O.W.N. 322 (Master); Rodriques v. Madill, [1985] O.J. No. 1666 (Master).

• The scope of cross-examination in respect to credibility does not extend to a cross-examination to impeach the character of the deponent: Moyle v. Palmerston Police Services Board (1995), 25 O.R. (3d) 127 (Div. Ct.).

144. There are some subtle points about these principles that are worth noting. First, although the case law establishes that a cross-examination question must be “fair,” the nature of fairness is not explained in the case law. This principle would appear to be the source of the court’s jurisdiction to stop abusive questioning and questioning designed to discomfort a witness but having little probative value. In my opinion, the fairness principle would also provide the court with the jurisdiction to stop a party from using a cross-examination in a way that disturbed the fairness of the procedure or the fairness of the adversary system under which justice is administered in Ontario.

145. It is also worth emphasizing that one of the more important principles to be applied for a refusals motion is the principle that the scope of the cross-examination will vary depending upon the nature of the motion or application. Thus, questions about the merits of the action or application may not be within the scope of a particular motion. For example, in Seaway Trust Co. v. Markle, [1988] O.J. No. 164 (Master), on a refusals motion, Master Sandler held that questions about the merits were not proper for a motion to amend the statement of claim to add new parties.

[26] There are a variety of grounds upon which it is proper for a deponent to refuse to answer a question at a cross-examination. In several cases, I have identified and categorized eight grounds or reasons for properly refusing to answer a question in a class proceeding. See: CIBC v. Deloitte & Touche, 2013 ONSC 917; 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., 2012 ONSC 6549; Axiom Plastics Inc. v. E.O. Dupont Canada, 2011 ONSC 4510. The categorization scheme is also pertinent to deciding the refusals motion now before the court. Thus, the categorical justifications for refusals in a class action are:

(1) unanswerable - the question is not capable of being answered, which is to say that the question is vague, unclear, inconsistent, unintelligible, redundant, superfluous, repetitious, overreaching, beyond the scope of the examination, speculative, unfair, oppressive, or a matter of rhetoric or argument;

(2) immaterial - the question is not material, which is to say that the question falls outside the parameters of the action and does not address a fact in issue;

(3) irrelevant - the question is not relevant, which is to say that the question does not have probative value; it does not adequately contribute to determining the truth or falsity of a material fact;

(4) untimely - the question is not relevant to the class period because it concerns events or matters outside of the class period, or more generally, it concerns events temporally unconnected to a cause of action or defence;

(5) idiosyncratic or uncommon - the question is not relevant to the common issues because it concerns an individual inquiry that was not certified for the common issues trial;

(6) answered – the question or the documents relevant to the question have already been provided by the party being examined;

(7) disproportionate - the question is disproportionate, which is to say that the question may be relevant but providing an answer offends the proportionality principle; and

(8) privileged – the answer to the question is subject to a privilege, including lawyer and client privilege, litigation privilege, or the privilege for communications in furtherance of settlement.

[27] In the immediate case, Ms. Babin’s counsel justified Mr. Tuovi’s refusal to answer Bayer’s questions on the grounds that: (1) the questions were irrelevant to Bayer’s motion to stay the Ontario action; and (2) the answers, which would respond to questions about the reasons for the Consortium’s decisions in prosecuting the class actions were privileged from disclosure because of litigation privilege. In the immediate case, Bayer disputed that Mr. Tuovi’s refusal to answer was justified. Its position was that: (1) the questions were relevant to the stay motion; (2) the questions were relevant to issues raised by Ms. Tuovi in his affidavit, even if those issues were irrelevant to the stay motion; and (3) if there was any litigation privilege associated with the answers, the privilege had been waived in the circumstances of the immediate case.

[28] In my opinion, Mr. Tuovi’s refusals can all be justified on the grounds of irrelevancy. While I shall not rely on the other grounds for justified refusals, it is arguable that some questions were unfair and in several instances, the questions were more or less answered (see refusals list numbered 1, 6, 8, and 9) and proportionality would arguably justify the refusal for any follow up answers. There is also an argument that the refusals were justified on the grounds of a litigation privilege that arguably was not waived in the circumstances. I shall, however, decide this refusals motion simply on the grounds of irrelevancy.

[29] Turning to the matter of relevancy, Bayer’s motion is to stay the Consortium’s Ontario class action because the Consortium already has an Albertan class action(s). This situation of a multiplicity of national class actions, “multi-jurisdictional class actions” across the country, is a very serious problem for class action litigation. (I recently discussed the nature of the problem of multiple multi-jurisdictional class actions in Kowalyshyn v. Valeant Pharmaceuticals International, Inc., 2016 ONSC 3819.) It is a difficult problem to solve because there is no constitutionally valid multi-jurisdictional procedural mechanism, as there is in the United States, to determine which of a multiplicity of proceedings should be selected. As I shall mention, below, there are, however, co-operative inter-jurisdictional mechanisms that could be, should be, and are beginning to be employed in Canada to resolve the problem of a multiplicity of class actions. The stay motion in the immediate case will be another example.

[30] Apart from the legal developments to be discussed below, the problem of a multiplicity of class actions can be solved in Canada by an informal arrangement amongst the parties to multiple class actions, in which they agree to pick one action to prosecute and to park the others. That is precisely how the problem was solved in the case at bar - up until recently.

[31] When an informal arrangement cannot be achieved, or if as happened in the case at bar, when the arrangement falls apart, then a motion must or should be brought to have one or more of the class actions stayed. As in the case at bar, these motions are typically brought by defendants sued about the same alleged wrongdoing in multiple jurisdictions, but motions to stay rival proceedings are sometimes brought by Class Counsel against rival Class Counsel who are suing the same defendants. The motions are or could be an extension of carriage fights in one jurisdiction into another. They are also sometimes brought by Class Counsel or defendants to temporarily stay individual actions to allow the class action to go first.

[32] In the case at bar, the informal arrangement that would have resolved the problem of three class actions in Alberta, Ontario, and Québec, respectively, has broken down, and in the snakes and ladders game of civil procedure, the parties are back at square one. Thus, Bayer has brought a motion to solve the multiplicity of class actions problem. Bayer seeks an order staying the Ontario action allowing the arguably slow-moving Alberta action(s) to advance.

[33] In the run up to the argument of Bayer’s motion to stay the Ontario action, Mr. Tuovi has refused to provide answers to detail the history of how the current state of affairs came about. Bayer wishes Mr. Tuovi to explain how the multiplicity of proceedings problem was solved in the first place by disclosing the details of the consortium agreement, which may or may not be in writing, and by disclosing why the plans of the Consortium to solve the problem of a multiplicity of proceedings went awry, and whether the current solution of Alberta being the flagship for the Consortium could or ought to be maintained.

[34] Bayer’s line of questioning appears to be designed to embarrass the lawyers of the Consortium, and while I confess that their questions add colour and have a prurient procedural interest, how the plan of proceeding with the action(s) in Alberta and parking the actions in Ontario and Québec came about and whom to blame for this plan’s alleged failure (which is a point that is seriously debatable given that the Albertan actions continue) strikes me as irrelevant to making a rational decision to solve the revived problem of a multiplicity of proceedings. And the questions and possible answers seem to be more a matter of argument than relevant evidence for determining whether or not a court should stay the Ontario class action.

[35] The lawyer and client communications about retainers and the lawyer to lawyer communications of the of the lawyers about the Consortium would seem to be privileged as litigation privilege, but more to the point of the pending stay motion, in my opinion, these communications are irrelevant to determining which among the several class actions should proceed. A factual account of what has occurred in Alberta is relevant, but editorial comments about whether the proceedings have been fast enough for the taste of one of the members of the Consortium is not relevant evidence to determine what the court should do.

[36] In determining relevancy for stay motions, the case law to address the problem of multiple multi-jurisdictional class actions is still in its nascent stage, but there have been some statutory developments that have been employed in some provinces that have adopted the recommendations of the Uniform Law Conference of Canada about amendments to its Class Proceedings Act.

[37] The Uniform Law Conference has recommended a procedure to respond to the circumstance of multiple multi-jurisdictional class actions by requiring notice to be given to counsel in the rival proceedings and by requiring the court hearing the certification motion to consider whether it would be preferable for some or all of the claims of the proposed class members to be resolved in the rival proceeding. Significantly, for present purposes, the Uniform Law Conference’s recommendations include criteria to determine what would be the preferable choice between the multiple actions and jurisdictional provisions to enforce that choice; for example, the court hearing the certification motion is, among other things, empowered to refuse to certify if the court determines that the class action should proceed in another jurisdiction.

[38] The recommendations of the Uniform Law Conference along with their commentary are set out in Schedule “A” to this decision, but for immediate purposes, the following provisions are most pertinent because they demonstrate what might be relevant matters to consider on a motion to stay a multi-jurisdictional class action:

4(2) If a multi-jurisdictional class proceeding or a proposed multi-jurisdictional class proceeding has been commenced elsewhere in Canada that involves the same or similar subject matter to that of the proceeding being considered for certification, the court must determine whether it would be preferable for some or all of the claims of the proposed class members to be resolved in that proceeding.

4(3) When making a determination under subsection (2), the court must

(a) be guided by the following objectives:

(i) ensuring that the interests of all parties in each of the relevant jurisdictions are given due consideration,

(ii) ensuring that the ends of justice are served,

(iii) where possible, avoiding irreconcilable judgments,

(iv) promoting judicial economy; and

(b) consider all relevant factors, including the following:

(i) the alleged basis of liability, including the applicable laws,

(ii) the stage each of the proceedings has reached,

(iii) the plan for the proposed multi-jurisdictional class proceeding, including the viability of the plan and the capacity and resources for advancing the proceeding on behalf of the proposed class;

(iv) the location of class members and class representatives in the various proceedings, including the ability of class representatives to participate in the proceedings and to represent the interests of class members,

(v) the location of evidence and witnesses.

Comment: In an effort to reduce the problems caused by overlapping multi-jurisdictional class actions, section 4(3) is added to the Act. This provision assists both the certifying court and a subsequent court in determining whether a related class action in another jurisdiction may be the most suitable forum. It sets out the overarching objective – to consider which jurisdiction would be the most suitable forum based on the interests of all the parties and the ends of justice, including the risk of irreconcilable judgments and judicial economy. It then outlines criteria that a court is to consider in making this determination.

[39] With this review of relevant factors for a stay motion, I conclude that Bayer’s questions are not relevant to the determination of the pending stay motion and, therefore, Mr. Tuovi’s refusals can all be justified on the grounds of irrelevancy.

[40] However, as noted above, Bayer submits that relevancy is not the end of the matter of the refusals. Relying on the principle, set out above, that when a matter is put in issue by the deponent, the opposite party is entitled to cross-examine even if the matter is irrelevant, Bayer submits that Mr. Tuovi should answer the questions.

[41] I disagree. Bayer was certainly entitled to cross-examine Mr. Tuovi on these matters, but that begs the question of whether the court should order answers to questions that will have little to no probative value to the motion. Subject to the issues of privilege and waiver of privilege, although I have the jurisdiction to order Mr. Tuovi to answer questions about irrelevant matters that he raised in his affidavit, I also retain the discretion not to order him to answer irrelevant questions.

[42] Since I have the discretion about whether proper but irrelevant questions should be answered, in the exercise of that discretion, I will weigh such matters as: (a) whether the examining party is properly seeking answers to discredit the credibility of the witness or, in the case of an expert witness, his or her impartiality; (b) whether the questions and answers would provide useful factual context as opposed to just trivial details; (c) whether the deponent is using his or her affidavit to make arguments but fairness demands that the examining party have an opportunity to make argumentative questions in response; (d) whether the questions are designed to serve some collateral and improper purpose; (e) whether the examining party is opportunistically attempting to discover information that is relevant to the action but outside the boundaries of the motion or application before the court; and (f) whether ordering the questions to be answered is in the interest of justice, including the interest that justice not only be done but appear to be done.

[43] In the immediate case, having regard to these factors, which are not meant to be exhaustive, while Mr. Tuovi opened himself to be cross-examined on some matters associated with the formation of the Consortium and about the decisions of the Consortium, in my opinion, the cross-examination should not be permitted to go beyond the external work of the Consortium to penetrate the internal workings and communications of the Consortium. This limitation is especially important given the intrusion this examination would make into the territory of privileged communications.

[44] In the end result, I conclude that Mr. Tuovi was justified in refusing to answer the questions about the Consortium’s internal workings and communications.

D. CONCLUSION

[45] For the above reasons, Bayer’s motion is dismissed.

[46] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Babin’s submissions within 20 days of the release of these Reasons for Decision followed by Bayer’s submissions within a further 20 days.

Perell, J.

Released: August 9, 2016

Schedule “A”

UNIFORM CLASS PROCEEDINGS ACT (AMENDMENT) 2006

1. Section 1 is amended by adding the following definition:

   “multi-jurisdictional class proceeding” means a proceeding that

   (a) is brought on behalf of a class of persons that includes persons who do not reside in [enacting jurisdiction] ; and

   (b) is certified as a class proceeding under Part 2.

   Comment: ‘Multi-jurisdictional class proceeding’ refers to class actions that involve class members who do not reside in the certifying jurisdiction. With the broad availability of class actions in Canada it is possible that overlapping multi-jurisdictional class actions concerning the same or similar subject matter could be commenced in several different Canadian jurisdictions. As a result, potential class members may find themselves presumptively included in more than one class action in more than one jurisdiction and consequently subject to conflicting determinations. Further, defendants and class counsel may be faced with uncertainty as to the size and composition of the class. In addition, there may be difficulty in determining with certainty which class members will be bound by which decisions. The amendments to the Act modify the existing class action process to resolve the problem of multiplicity in multi-jurisdictional class proceedings.

2. Subsections 2(1) and (2) are replaced with the following:

   Plaintiff’s class proceeding

   2(1) A resident of [enacting jurisdiction] who is a member of a class of persons may commence a proceeding in the court on behalf of the members of that class.

   2(2) The member who commences a proceeding under subsection (1) must

   (a) apply to the court for an order

   (i) certifying the proceeding as a class proceeding, and

   (ii) subject to subsection (4), appointing the member as the representative plaintiff for the class proceeding; and

   (b) give notice of the application for certification to

   (i) the representative plaintiff in any multi-jurisdictional class proceeding, and

   (ii) the representative plaintiff in any proposed multi-jurisdictional class proceeding,

   commenced elsewhere in Canada that involves the same or similar subject matter.

   Comment: To facilitate the provision of notice in section 2(2)(b), a Canadian Class Proceedings Registry is to be established as a searchable electronic database of class proceedings. The Registry would include all class action filings and annotation of any subsequent material events. It would be operated by an appropriate national body. Counsel applying for certification of an action would be responsible for providing the relevant information at the time the statement of claim is filed and for updating the information at certification, and/or when material events occur.

3. The following is added after section 3:

   Plaintiff in other proceeding may appear

   3.1 A person who receives notice of an application for certification under clause 2(2)(b) may make submissions at the certification hearing.

   Comment: A plaintiff in a class proceeding who receives notice under section 2(2)(b) may then apply to the make submissions to the court considering certification of the other class proceeding.

4. Section 4 is amended

   (a) by renumbering it as subsection 4(1);

   (b) by striking out “The court must certify” and substituting “Subject to subsections (2) and (3), the court must certify”; and

   (c) by adding the following as subsections 4(2) and 4(3):

   4(2) If a multi-jurisdictional class proceeding or a proposed multi-jurisdictional class proceeding has been commenced elsewhere in Canada that involves the same or similar subject matter to that of the proceeding being considered for certification, the court must determine whether it would be preferable for some or all of the claims of the proposed class members to be resolved in that proceeding.

   4(3) When making a determination under subsection (2), the court must

   (a) be guided by the following objectives:

   (i) ensuring that the interests of all parties in each of the relevant jurisdictions are given due consideration,

   (ii) ensuring that the ends of justice are served,

   (iii) where possible, avoiding irreconcilable judgments,

   (iv) promoting judicial economy; and

   (b) consider all relevant factors, including the following:

   (i) the alleged basis of liability, including the applicable laws,

   (ii) the stage each of the proceedings has reached,

   (iii) the plan for the proposed multi-jurisdictional class proceeding, including the viability of the plan and the capacity and resources for advancing the proceeding on behalf of the proposed class;

   (iv) the location of class members and class representatives in the various proceedings, including the ability of class representatives to participate in the proceedings and to represent the interests of class members,

   (v) the location of evidence and witnesses.

   Comment: In an effort to reduce the problems caused by overlapping multi-jurisdictional class actions, section 4(3) is added to the Act. This provision assists both the certifying court and a subsequent court in determining whether a related class action in another jurisdiction may be the most suitable forum. It sets out the overarching objective – to consider which jurisdiction would be the most suitable forum based on the interests of all the parties and the ends of justice, including the risk of irreconcilable judgments and judicial economy. It then outlines criteria that a court is to consider in making this determination.

5. The following is added after section 4:

   Orders in multi-jurisdictional certification

   4.1(1) The court may make any order it considers appropriate in an application to certify a multi-jurisdictional class proceeding, including an order

   (a) certifying the proceeding as a multi-jurisdictional class proceeding if

   (i) the criteria in subsection 4(1) have been satisfied, and

   (ii) having regard to subsections 4(2) and (3), the court determines that [enacting jurisdiction] is the appropriate venue for the multi-jurisdictional class proceeding;

   (b) refusing to certify the proceeding if the court determines that it should proceed as a multi-jurisdictional class proceeding in another jurisdiction; or

   (c) refusing to certify a portion of a proposed class if that portion of the class contains members who may be included within a proposed class proceeding in another jurisdiction.

   4.1(2) If the court certifies a multi-jurisdictional class proceeding, it may

   (a) divide the class into resident and non-resident subclasses;

   (b) appoint a separate representative plaintiff for each subclass; and

   (c) specify the manner in which and the time within which members of each subclass may opt out of the proceeding.

   Comment: The addition of section 4.1(1) provides that a court considering certification has the flexibility to consider a range of orders; not simply whether or not to certify a multijurisdictional class proceeding. It may also refuse to certify a portion of the proposed class who may be included within a pending or proposed class proceeding in another jurisdiction. Furthermore, depending on the nature of the claims, a court could determine that it is the most suitable forum for the resolution of all or part of the common issues, while assessment of other individual issues should be determined by other fora.

6. Subsection 6(2) is repealed.

7. Subsection 8(1) is amended by adding “ and ” at the end of clause (f) and repealing clause (g).

8. Section 16 is replaced with the following:

   Opting out

   16. A member of a class involved in a class proceeding may opt out of the proceeding in the manner and within the time specified in the certification order.

   Comment: The amendments to section 16 reflect the recommendation that an opt-out mechanism be adopted for a class that includes class members residing outside the jurisdiction. The reasons for this recommendation are as follows:

   (a) There are strong policy reasons in favour of an opt-out mechanism;

   (b) There is diminished risk that such a mechanism would be found to be unconstitutional; and,

   (c) There is no real reason for treating members of a multi-jurisdictional class differently from those of an intra-provincial class.

9. Clause 19(6)(c) is repealed.

COURT FILE NO.: CV-13-482667CP DATE: 20160809 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: KIMBERLEY BABIN Plaintiff – and – BAYER INC., BAYER PHARMA AG, and BAYER OY Defendants

REASONS FOR DECISION

PERELL J. Released: August 9, 2016