Court File and Parties

COURT FILE NO.: 99-CV-181819 CP MOTION HEARD: 2018-10-29 ENDORSEMENT RELEASED: 2018-10-30 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

KATHRYN ANNE TAYLOR Plaintiff

- and-

ATTORNEY GENERAL OF CANADA Defendant

BEFORE: MASTER M.P. McGRAW

COUNSEL: J. Legge and B. Moher E-mail: jlegge@leggeandlegge.com -for the Plaintiff and OHIP

S. Gaudet, J. Soldatich, R. Flaim and A. Law for the Defendant E-mail: sean.gaudet@justice.gc.ca -for the Defendants

ENDORSEMENT RELEASED: October 30, 2018

Endorsement

[1] This motion by the Plaintiff under Rule 60.12 in these class action proceedings proceeds pursuant to the Endorsement of Justice Firestone dated June 19, 2018 and my Endorsement dated June 28, 2018. The Plaintiff seeks to strike the Defendant’s Statement of Defence (the “Defence”) for the Defendant’s alleged failure to produce documents pursuant to court orders, specifically the Order of Master MacLeod (as he then was) dated October 17, 2003 (the “Production Order”).

[2] Pursuant to the Order of Firestone J. dated October 31, 2017, a 17-week trial is currently scheduled to commence on January 14, 2019. Counsel appeared before Firestone J. on October 26, 2018 and are scheduled to re-attend before him on November 5, 2018.

[3] Rule 60.12 provides that, where a party fails to comply with an interlocutory order, the court may, in addition to any other sanction provided by the Rules: i.) stay the party’s proceeding; ii.) dismiss the party’s proceeding or strike out the party’s defence; or iii.) make such order as is just. The Court of Appeal has most recently held that striking out a defence under Rule 60.12 should not generally be imposed as a remedy of first resort and the defaulting party should, at least, be provided with an opportunity to cure the default (Koohestani v. Mahmood, 2015 ONCA 54 at paras. 54-62). The factors which the court should consider when determining whether to strike a defence include the strength of the defence; the context of the default and whether the striking of the defence is proportional to the default and consistent with Rule 1.04; and whether the default is attributable to the conduct of the defendant’s counsel (Koohestani at paras. 57-62).

[4] Given the court’s discretion to grant an appropriate remedy under Rule 60.12 and the case law, I asked counsel at the outset of this motion if the parties had considered a remedy which would permit this action to continue to trial without dismissing the Defence. The Plaintiff advised that they had made a proposal on October 26, 2018 which the Defendant rejected.

[5] Plaintiff’s counsel proceeded with their submissions on the motion as originally framed. However, at the conclusion of their submissions (approximately 3 hours into the motion) Plaintiff’s counsel advised the Court that, rather than the dismissal of the Defence, the Plaintiff was now seeking an order requiring the Defendant to:

i.) make best efforts to locate and produce copies of all versions of the report prepared by Dr. Pierre Blais in 1981 entitled “Plastic Fluid Handling Systems and Implanted Devices: Rationale for regulatory amendments” (the “1981 Report”) together with audit trails and search parameters as evidence of such efforts. The Plaintiff submits that there are 3 “expanded” versions of the 1981 Report. The Defendant (which takes the position that it complied with all orders, including the Production Order) submits that the Plaintiff is already in possession of 1 of these expanded versions, that previous efforts by the Defendant to locate them have been unsuccessful and Dr. Blais continues to review his own files in this regard;

ii.) make best efforts to locate and produce electronic versions of all documents for which the Defendant disputes authenticity;

iii.) make best efforts to locate and produce publication and/or presentation approval sheets for all of the more than 150 papers prepared by Dr. Blais together with the underlying documents submitted in support of such approval requests. In support of this request, the Plaintiff handed up a copy of an approval form and paper by Dr. Blais entitled “Frangible, Degradable and Dispersible Implant Materials” which he presented at a critical care conference in Hamilton, Ontario on April 27-28, 1987 (the only approval form and paper currently in the Plaintiff’s possession) produced with the Plaintiff’s 8th Supplementary Affidavit of Documents sworn October 26, 2018. The Plaintiff also served and handed up a 7th Supplementary Affidavit of Documents sworn October 24, 2018. Both of these new Affidavits of Documents contain documents recently obtained from the federal and Ontario archives. The Plaintiff also handed up a Motion Record dated today for leave to adduce additional evidence on this motion. The Defendant opposes the late filing and service of the 7th and 8th Supplementary Affidavits of Documents and the additional Motion Record;

iv.) produce Dr. Blais’ personnel file;

v.) produce Dr. Freedland, a former Health Canada employee for examination which appears to be a separate motion by the Plaintiff to examine a non-party witness under Rule 39.03 which has been discussed and contemplated in previous attendances before McEwan J. and Firestone J. Alternatively, the Plaintiff requests that the Defendant produce another deponent or witness for examination who worked at Health Canada during the relevant time period and who has knowledge and information of the issues in this litigation (collectively, the “Proposed Order”);

[6] The Plaintiff further proposes that this motion be adjourned sine die without prejudice to the Plaintiff’s right to bring it back before the court pending production of the above documents and/or completion of the above steps.

[7] The Defendant submits that given the Plaintiff’s mid-motion change in position on the relief sought, namely, requesting the terms of the Proposed Order instead of dismissal of the Defence, it is unable to properly respond substantively or discuss a potential resolution. Given the opportunity to do so even earlier last week, the Defendant would have been in a better position to discuss a potential resolution to this motion including the remedy now sought by the Plaintiff. While ordering remedies such as further productions and examinations is open to the Court under Rule 60.12, given the Plaintiff’s aggressive and exclusive pursuit of dismissal the Defence, in my view, it is reasonable that the Defendant focused its efforts on responding to this motion as initially framed. Further, the Defendant did not receive the 7th and 8th Supplementary Affidavits of Documents until 3 and 1 business days respectively before the motion.

[8] While the Plaintiff’s Proposed Order is a reasonable and proportionate step towards a potential resolution of certain interlocutory matters, the timing of the Plaintiff’s change of course has placed this Court in a difficult position. Even if I were to order the terms of the Proposed Order, on consent and/or by directions, I conclude that there is a substantial risk that the efforts required by the Defendant to comply with the terms of the Proposed Order, or even some parts of it, would jeopardize the fixed trial date of January 14, 2019. Given the age and volume of the documents sought, some of them over 30 years old and others which may no longer exist or are in dated electronic format that must be located and searched, I am not satisfied that all steps contemplated by the Proposed Order can even be completed in time for trial, let alone in time for any documents produced or examination transcripts to be used as evidence at trial. Further, if the Defendant wishes to oppose certain terms of the Proposed Order, it is entitled to additional time to properly respond to the Plaintiff’s change of position and the late filed materials. All of this must be balanced with the Plaintiff’s entitlement to relevant documents prior to trial, particularly in a procedurally and substantively complex matter such as this. Further, there is still the possibility that the Defendant will be bringing a motion to examine Dr. Blais (the “Examination Motion”).

[9] Pursuant to Rule 37.02(2)(b), a Master cannot vary or amend the terms of a Judge’s order, which includes an order fixing a trial date. In my view, this prohibition extends to granting orders where the likely effect would be the adjournment of a fixed trial date. It would not be appropriate or consistent with Rule 1.04 for this court to consider and order relief requested mid-motion which both risks a fixed trial date and does not provide the Defendant with an opportunity to properly respond and engage in discussions which may resolve the relief sought. The consequences are more pronounced in a 19-year old class action with ongoing, complex production issues with a 17-week trial scheduled to commence in under 3 months.

[10] Accordingly, I conclude that in the circumstances this Court has no choice, and that it is reasonable, appropriate and consistent with Rule 1.04 to adjourn this motion sine die and direct the parties to attend before Firestone J. for directions with respect to the fixed trial date, this motion and the relief now sought by the Plaintiff. The parties are already scheduled to attend before Firestone J. on November 5, 2018, however, I encourage counsel to seek directions sooner if possible.

[11] If the parties obtain directions from Firestone J. or otherwise resolve the material issues on their own, I am prepared to make myself available on short notice to accommodate the parties to resume this motion or provide case management. I am continuing to hold both November 27 and 29 for the Examination Motion or for whatever purpose the parties may require. I will also make myself available sooner if necessary to accommodate the parties in any way possible, particularly if it assists in permitting the trial to proceed as scheduled on January 14, 2019.

[12] The parties may contact me at any time to schedule a telephone case conference for case management or to speak to further scheduling and timetabling.

[13] The costs of this motion and today’s attendance are reserved to a future attendance.

Released: October 30, 2018 Master M.P. McGraw