COURT FILE NO.: 99-CV-181819 CP

MOTIONS HEARD: 20181127

REASONS RELEASED: 20181203

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. Gorham and R. Flaim
E-mail: sean.gaudet@justice.gc.ca -for the Defendant, Attorney General of Canada (the “AGC”)

REASONS RELEASED: December 3, 2018

Reasons For Endorsement

I. Introduction

[1] Pursuant to the Endorsement of Justice Firestone dated November 5, 2018 (the “November 5 Endorsement”) and my Endorsement dated November 8, 2018, ten (10) motions proceeded before this Court in these class proceedings:

i.) the Plaintiff’s motion to compel the AGC to locate and produce copies of all versions of the report prepared on May 28, 1981 by Dr. Pierre Blais, the Plaintiff’s key witness and a former research scientist in Health Canada’s (“HC”) Medical Devices Bureau from 1976 until 1989, 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 “1981 Report Motion”);

ii.) the Plaintiff’s motion to compel the AGC to locate and produce electronic versions of all documents for which the AGC disputes authenticity (the “E-Discovery Motion”);

iii.) the Plaintiff’s motion to compel the AGC to locate and produce publication and/or presentation approval sheets for all papers prepared by Dr. Blais together with the underlying documents submitted in support of such approval requests (the “Papers Motion”);

iv.) the Plaintiff’s motion to compel the AGC to produce Dr. Blais’ personnel file (the “Personnel File”)(the “Personnel File Motion”, together with the 1981 Report Motion, the E-Discovery Motion and the Papers Motion, the “Production Motions”);

v.) the AGC’s motion to compel the production of Dr. Blais’ original documents for forensic examination (the “Inspection Motion”);

vi.) the AGC’s motion to compel answers to undertakings and refusals arising from the examination of Dr. Blais on September 26, 2018 (the “Refusals Motion”);

vii.) the Plaintiff’s motion for the continued examination for discovery of Dr. William Freedland on refusals from his discovery and questions properly arising therefrom, or, in the alternative, an order that Dr. Freedland be examined pursuant to Rule 31.10 (the “Freedland Examination Motion”);

viii.) the Plaintiff’s motion to take the evidence of Dr. Napke, Dr. Neville, Dr. Blais and Kathryn Taylor before trial pursuant to Rule 36.01 (the “Plaintiff Witness Motion”);

ix.) the AGC’s motion for the examination of Dr. Blais pursuant to Rule 31.10 (the “Blais Examination Motion”);

x.) the AGC’s motion to take the evidence of Francine Jacques and Dr. Noel Rose prior to trial pursuant to Rule 36.01 (the “AGC Witness Motion”, together with the Plaintiff’s Witness Motion, the “Witness Motions”).

[2] As set out in my Endorsement dated October 30, 2018 (Taylor v. Attorney General of Canada, 2018 ONSC 6808)(the “Rule 60.12 Endorsement”), the Plaintiff’s motion pursuant to Rule 60.12 to strike the AGC’s Defence for its alleged failure to produce documents proceeded before me on October 29, 2018 (the “Rule 60.12 Motion”). As further set out in the Rule 60.12 Endorsement, approximately 3 hours into their submissions, Plaintiff’s counsel advised the Court that the Plaintiff was no longer seeking to strike the AGC’s Defence. Instead, the Plaintiff requested the relief it now seeks on the Production Motions and the Freedland Examination Motion.

[3] In light of the substantial productions sought by the Plaintiff, I concluded that the likely effect of granting even some of the relief sought would be to cause the adjournment of the fixed 17-week trial scheduled to commence on January 14, 2019. There was also the potential for additional motions (which are now before me). Therefore, I adjourned the motion and directed the parties to speak to these issues at an upcoming attendance before Justice Firestone on November 5, 2018.

[4] In the November 5 Endorsement, Justice Firestone ordered that, among other things:

i.) the trial date of January 8, 2019 be vacated and a new trial date of April 1, 2019 be fixed for 85 days, peremptory to all parties with no further adjournments as a result of any appeals from any orders or for any other reasons;

ii.) these 10 motions proceed before me on November 27 and 29, 2018 with no further motions to be brought at any time prior to trial without prejudice to the parties’ rights to bring any motions before the trial Judge to be heard and determined at the trial Judge’s sole discretion;

iii.) any orders made by this Court on these motions and any steps flowing therefrom are not to jeopardize the peremptory trial date of April 1, 2019;

iv.) the Plaintiff will bring a motion to strike the Defence at trial.

[5] These 10 motions proceed in less than ideal circumstances. This is a 19-year, procedurally and substantively complex class proceeding where the parties have been engaged in ongoing production disputes for over 15 years. The documents produced and sought are voluminous with many of them over 30 years old and some even over 40. Some documents may no longer exist, previous searches may not have located them and the potential places to search for documents is overwhelming. Combined with the fixed peremptory trial date of April 1, 2019, this strikes at the heart of proportionality and requires a balancing of the parties’ entitlement to know the case they must meet through the production of relevant documents and right to oral discovery prior to trial and the efforts and costs imposed on the other party. Quite simply, there is not enough time until trial to complete the additional, comprehensive procedural steps which the parties seek and which would be ideal for a case of this nature in the current circumstances.

II. The Class Proceedings

[6] This class action is brought on behalf of Canadians (excluding British Columbia and Quebec) who were surgically implanted with temporomandibular joint (“TMJ”) prosthetic implants manufactured by Vitek, Inc. (the “Implants”), a corporation located in the United States. The TMJs are located on top of the jawbone. The Implant replaced the meniscus between the jaw and skull and was manufactured in the 1980s with a Teflon-plastic material sold under the trademark “Proplast”.

[7] The Implants were recalled due to significant adverse physical conditions experienced by recipients including degenerative bone loss, progressive bone changes and giant cell reactions with foreign body reactions progressing to lethal levels in a number of patients. Some plaintiffs have died from Implant related injuries and it is estimated that there are approximately 2500-2600 members of the Plaintiff Class some of whom continue to experience progressive deterioration of their skulls, jaws and cranial tissue.

[8] The Plaintiff alleges that HC owed her and the other class members a duty of care to protect them from unsafe medical devices like the Implants and was negligent in failing to perform this duty including in the discharge of its obligations under the Food and Drug Act (Canada). The primary factual issue in this action is what information HC possessed about the hazards of the Implants and when.

[9] This class action was certified in July 2007 then struck out in January 2010 for failure to disclose a reasonable cause of action. The Ontario Court of Appeal overturned this decision in July 2012 on the basis that it was not plain and obvious at the pleadings stage that the Plaintiff’s allegations could not support a finding that HC owed the Plaintiff a prima facie private law duty of care (Taylor v. Canada (Attorney General), 2012 ONCA 479). The Plaintiff delivered a Fresh As Amended Statement of Claim and pleadings closed in 2014.

III. The Law and Analysis

The Production Motions

Generally

[10] Documentary production in these proceedings has been characterized by both parties alleging that the other has engaged in improper conduct including document destruction, fabrication and failure to disclose. These allegations remain front and centre in the Production Motions.

[11] The Plaintiff alleges that HC has intentionally destroyed “inconvenient” documents and evidence and has operated within a “culture of spoliation” in which it has participated in “industrial scale general shredding”. The Plaintiff cites evidence such as a disputed memo written during related 1989 litigation in British Columbia and implicates the Department of Justice (“DOJ”) in the destruction of relevant documents.

[12] The Plaintiff further submits that the AGC remains in breach of production orders dating back to 2003, the basis for the Rule 60.12 Motion. Specifically, the Plaintiff asserts that the AGC has failed to comply with the Order and Endorsement of Master MacLeod (as he then was) dated October 17, 2003 in Logan v. Harper, 2003 CanLii 15592 (at paras. 42 and 65), one of the individual actions with respect to the Implants, in which he ordered the AGC to disclose any document destruction and to determine what relevant documents were previously in its possession which it was unable to locate (the “2003 Order”). The Plaintiff also cites the Endorsement of Master Haberman dated May 6, 2008 where, on a further production motion ultimately resolved on consent, she found that the AGC disregarded her previous order with respect to the disclosure of documents. The Plaintiff further claims that the AGC has not conducted any electronic searches and has not produced sufficient documentation related to an RCMP investigation conducted in 1990 with respect to implants.

[13] In support of her allegations, the Plaintiff points to relevant documents not produced by the AGC but included in a collection of approximately 250 bankers boxes amassed by Dr. Blais (the “Blais Documents”). Dr. Blais was terminated and subsequently reinstated by HC in 1989, and left HC that same year. In his affidavit sworn March 5, 2018, Dr. Blais states that he has more than 250 boxes in his possession consisting of medical device materials including two boxes containing original copies of papers and other documents written for “internal and external” use at HC. The Plaintiff submits that certain Blais Documents demonstrate that HC had actual knowledge of the hazards of various materials used in the Implants and elsewhere in the anatomy as far back as 1981 or earlier. From January 19, 2018 until November 16, 2018, the Plaintiff produced 7 Supplementary Affidavits of Documents consisting entirely of documents from the Blais Documents and others recently located in the National and Ontario archives but not produced by the AGC, including her 7th and 8th Supplementary Affidavits of Documents handed up on the return of the Rule 60.12 motion. The Plaintiff submits that the AGC has failed to address recent productions in its most recent list of documents dated June 15, 2018 produced on order of Justice Firestone dated May 15, 2018 or otherwise provide any explanation for their non-production over the last 15-plus years.

[14] The AGC submits that it has complied with all of its production obligations including the 2003 Order. The AGC has produced over 11,000 documents and its deponents have been examined for 16 days resulting in over 2,500 pages of transcripts. The AGC’s initial efforts to locate and produce relevant documents are set out in the Affidavit of Susan Padmos, Director General of HC’s Health Productions and Food Litigation Secretariat, sworn January 29, 2003. These include broad calls for documents requesting all government records regarding breast and TMJ implants sent in April and June 2000 to the Ministry of Health, DOJ and Ministry of Industry and Customs and Revenue; searches of record inventories by the Litigation Secretariat including lists from the Federal Records Centre, HC Storage Records and HC Automated Record Management Systems, and inspections conducted at various offices of the Health Products and Food Branch; a relevancy review and scanning of documents by approximately 30 law students hired by the Litigation Secretariat and supervised by the DOJ in June 2000; and a 10-day “document blitz” meeting in February-March 2001 conducted by a team of DOJ lawyers, paralegals and HC personnel with respect to 35 implant class actions (including this one) to review “hundreds” of boxes collected, followed by additional steps which ultimately led to the initial production of approximately 2,200 documents in these proceedings (the “Initial Searches”).

[15] The Plaintiff submits that the AGC has not conducted any electronic searches including for the Disputed Documents. However, the AGC states that it has conducted electronic searches of all relevant databases and searchable locations including HC’s DAFFY/MDS systems with respect to adverse medical device event monitoring, its HPB system and as set out in the affidavit of Philip Neufeld dated August 24, 2018 (the “Electronic Searches”).

[16] The AGC alleges that some of the Blais Documents have been altered and/or fabricated and disputes the authenticity of six (6) documents:

i.) a handwritten memo dated March 4, 1977 from Dr. Blais to B.N. Thivierge (the “1977 Memo”);

ii.) the 1981 Report;

iii.) a further version of the 1981 Report contained in a memorandum dated February 18, 1982 from Dr. Blais to Dr. Campbell (the “February 1982 Memo”);

iv.) a memorandum dated September 9, 1982 from Dr. Blais to Dr. M.T. Cooper in which Dr. Blais express concern that Proplast was being used in Canadian implant patients (the “September 1982 Memo”);

v.) a 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 “Critical Care Paper”) handed up on the Rule 60.12 Motion;

vi.) the approval sheet for the Critical Care Paper, handed up on the Rule 60.12 Motion (the “Approval Sheet”, collectively, the “Disputed Documents”).

[17] The AGC submits that the timing of the disclosure and production of the Disputed Documents in March 2018 and notable differences in numerous versions raises questions regarding their authenticity. The AGC highlights the fact that the Blais Documents have been in Dr. Blais’ possession for almost 30 years, he referred to some of the documents in affidavits as far back as 2000 and has been providing assistance to plaintiffs in these proceedings since their commencement and in related proceedings since 1997. The AGC also cites previous adverse findings by the B.C. Supreme Court in 1990 regarding Dr. Blais’ objectivity as a witness in litigation with respect to the Meme breast implant. The AGC cites the authenticity of the Disputed Documents as the basis for why the Disputed Documents have not been set out in the AGC’s lists of documents.

[18] During cross-examination on his affidavit filed on the Rule 60.12 motion, Dr. Blais stated that he found the 1981 Report by “happenstance” when searching for documents unrelated to this action as it had been misclassified within the Blais Documents. Dr. Blais also stated that he searched for the 1981 Report in September 2002 but was unable to locate it. Dr. Blais further stated on cross-examination that he has had the Disputed Documents for at least 30 years but only searched for them and produced them to Plaintiff’s counsel in March 2018 because they were not relevant to what Plaintiff’s counsel had previously identified. The Plaintiff emphasizes that all of the relevant documents in dispute are HC documents, and that Dr. Blais is only in possession of copies of the original documents which he made at or around the time the documents were created. Further, it is difficult and onerous for Dr. Blais at age 78 to review the Blais Documents as the boxes are located in 3 different locations and difficult to access requiring the physical moving of hundreds of boxes.

[19] Relevance, the scope of discovery and proportionality are canvassed comprehensively by Perell J. in Ontario v. Rothmans Inc., 2011 ONSC 2504 and Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917. Discovery must be relevant to the issues as defined by the pleadings such that they must have probative value and adequately contribute to the determination of the truth or falsity of a material fact. Overbroad and speculative discovery and “fishing expeditions” are not permitted.

[20] Rule 1.04(1) which provides that the Rules of Civil Procedure shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits is a primary consideration on these motions. However, in my view, Rule 1.04(1.1) which requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding, is even more applicable given the circumstances in which these motions proceed. In particular, I refer to the volume of documents already produced and searches made over the last 15-plus years, the recent disclosure of additional documents from the archives and the Blais Documents, the seemingly infinite searches which could be conducted and the reality of a 17-week trial commencing in approximately 4 months.

[21] With the volume of available and searchable documents and a trial commencing in 4 months, it is not possible to reconcile all of the parties’ positions and allegations with respect to the Production Motions. They have not been resolved over the last 15-plus years and there is no time to resolve them now. Both parties must bear responsibility for the delayed, late and inadequate productions over the last two decades and no purpose would be served in determining who is more to blame at this time. This includes issues arising from the AGC’s alleged and/or apparent non-compliance with the 2003 Order and Master Haberman’s directions and the Plaintiff’s late delivery of documents in the possession of her key witness 19 years into the proceedings and 21 years after his involvement with related actions. It is also inevitable that the de-certification, appeal and related pleadings amendments have also contributed to the delays and complexity of these proceedings. In my view, any allegations regarding the sufficiency, timing and propriety or production are more appropriately issues for costs, either on these motions or at trial, together with whatever conclusions or inferences the trial Judge may draw generally. Allegations of spoliation are more appropriately an issue for the trial Judge in any event (Muskoka Fuels v. Hassan Steel Fabricators Ltd., [2009] O.J. No. 4782 (S.C.J.) at paras. 5-7).

[22] The Production Motions deal primarily with what additional efforts, inquiries and best efforts should be made at this time. Accordingly, this Court must focus its efforts on making reasonable production orders which provide for proportionate and targeted searches and inquires in a final attempt to locate and obtain relevant documents not already produced or originals of documents which have. As set out below, this task has been narrowed by concessions, accommodations and agreements made by the parties during the course of the motion. Further cooperation will be required in order to ensure that the orders made below are carried out in an efficient and timely manner so that the parties are able to make effective use of any new productions at trial.

The 1981 Report Motion

[23] It is undisputed that the 1981 Report is a key document which may be determinative of liability in these proceedings. Plaintiff’s counsel has characterized the 1981 Report as both determinative and dispositive of all issues in this action. The 1981 Report, prepared by Dr. Blais for the Minister of Health, sets out, among other things, the dangers of various medical devices including the Implants, stating that Proplast did not appear suitable for any human application; that properly educated physicians or surgeons “would have to suppress” their natural instinct and disregard education and experience to use Proplast on humans; adverse events with respect to Vitek Proplast in Louisiana dental clinics; and that “major problems are expected if and when” the Implants (being used on an investigational basis in the U.S.) were used in Canada. Dr. Blais states that at least 3 expanded and updated versions of the 1981 Report, including the February 1982 Memo, were provided to HC in paper and electronic format.

[24] The AGC submits that it has made the necessary searches and inquiries to locate the original of the 1981 Report, including the Initial Searches and the Electronic Searches. The AGC submits that there would be no purpose in conducting any additional electronic searches and that searching through all of the AGC’s physical documents would be disproportionate given the Initial Searches and the limited time before trial.

[25] However, given the importance of the 1981 Report to the disposition of these proceedings, I conclude that it is reasonable and necessary in the circumstances, and consistent with proportionality, particularly given the specific documents sought which appear to have existed in original format, for the AGC to conduct further searches. In particular, the AGC shall conduct targeted searches of its physical, non-electronic documents for the 1981 Report and any versions of the 1981 Report, including the February 1982 Memo. This Court is not in a position to order where the AGC should search and cannot provide much in the way of specific directions. I agree that it would be disproportionate, impractical and unnecessary for the AGC to search all of its physical documents. However, the AGC should make all best efforts and reasonable, relevant and appropriate inquiries, including searching physical files where the 1981 Report may have been filed based on counsel’s and HC’s knowledge of the classification and organization of the AGC’s documents.

[26] With respect to electronic searches, the AGC shall conduct searches similar to those conducted for the Critical Care Paper and the Approval Sheet after the October 29, 2018 attendance, which, as set out below, the AGC has advised are feasible. The AGC shall provide the Plaintiff with a description and explanation of the electronic searches, including where it searched and the search terms used.

[27] The AGC shall complete all searches, produce any relevant documents located and provide a description of its best efforts including where it searched and search terms used, as applicable, to the Plaintiff within 45 days.

The E-Discovery Motion

[28] After the October 29, 2018 attendance, the AGC conducted specific electronic searches for the Critical Care Paper and the Approval Sheet. These searches did not locate these documents but turned up Dr. Blais’ CV which lists what appears to be the Critical Paper but under a different name.

[29] The AGC submits that if this Court is inclined to make production orders, although redundant, it would be feasible for the AGC to conduct electronic searches for the balance of the Disputed Documents similar to those conducted after the attendance on October 29, 2018. Having considered the serious allegations made by the AGC regarding Dr. Blais and the Blais Documents, the importance of the documents, the limited and specific documents sought, and the present time restrictions, I am satisfied that it is reasonable, appropriate and proportionate for the AGC to conduct similar electronic searches for those Disputed Documents for which it has not already searched since the October 29, 2018 attendance.

[30] The AGC has already searched for the Critical Care Paper and the Approval Sheet, and will search for the 1981 Report and the February 1982 Memo as part of the relief arising from the 1981 Report Motion. Therefore, the AGC shall conduct electronic searches for the 1977 Memo and the September 1982 Memo, provide the Plaintiff with a description and explanation of the electronic searches and best efforts conducted, including where it searched and search terms used for these and the Critical Care Paper and Approval Sheet previously searched, all within 45 days.

The Papers Motion

[31] During the Rule 60.12 Motion, the Plaintiff, based on the RCMP report, estimated that Dr. Blais authored approximately 150 publications. Upon the return of this motion, the Plaintiff advises that there are approximately 369 papers, including internal and external publications. A list of all of Dr. Blais’ papers are set out at pages 100-132 of Dr. Blais’ CV located during the AGC’s recent search. Whatever the number, not all of Dr. Blais’ papers are relevant to matters at issue in these proceedings.

[32] I agree with the AGC that the most reasonable, efficient, appropriate and proportionate resolution of the Papers Motion is for the Plaintiff to identify the relevant papers from Dr. Blais’ CV which it wishes the AGC to search for and the AGC will do so. Accordingly, the Plaintiff shall advise the AGC within 3 days by identifying any relevant papers listed in Dr. Blais’ CV that it wishes the AGC to search for. The AGC shall search for the papers identified by the Plaintiff electronically as it did for the Critical Care Paper and the Approval Sheet. However, I further conclude that given the importance of Dr. Blais’ papers and all of the relevant circumstances, the AGC shall also conduct a targeted, specific search of its physical documents, similar to that which I have ordered above for the 1981 Report. The AGC shall produce any papers and any corresponding approval sheets and underlying documents located together with a description of best efforts made including search terms used and places searched to the Plaintiff within 45 days of receiving the Plaintiff’s list. The underlying documents for any papers need only be produced if they are located in the process of searching for the papers and do not need to be searched on their own.

The Personnel File Motion

[33] The AGC has agreed to produce the Personnel File and advises that some of the documents from the Personnel File have already been produced in these proceedings. The AGC shall produce the Personnel File to the Plaintiff within 45 days together with a summary of what, if any, documents have been removed. If there are any documents in the Personnel File which give rise to privacy, privilege or confidentiality issues, counsel shall first attempt to resolve any such issues, barring which, the parties may seek further directions from me.

The Inspection Motion

[34] The parties have agreed on the following terms for the inspection of the Disputed Documents:

i.) the Disputed Documents shall be reviewed by forensic document examiners chosen by the AGC at the facilities of the Canada Border Services Agency in Ottawa on a date and time to be agreed upon by counsel (the “Inspection”);

ii.) counsel for the AGC and the Plaintiff and Dr. Blais may attend at the Inspection;

iii.) the Disputed Documents shall not be altered in any manner as a result of the Inspection;

iv.) Plaintiff’s counsel shall retain possession of the Disputed Documents prior to and after the Inspection;

v.) the costs related to the Inspection shall be reserved to the trial Judge.

[35] I am satisfied that these terms are a reasonable, appropriate and proportionate resolution of the Inspection Motion and direct that the Inspection shall take place within 45 days. Any production of the results or conclusions of the Inspection will be dependent on what use, if any, the AGC intends to make of the Inspection at trial and if it continues to take the position that the Disputed Documents are not authentic, and if any response from the Plaintiff is necessary.

The Refusals Motion and the Blais Examination Motion

[36] The AGC submits that if the Plaintiff agrees to produce Dr. Blais for examination for discovery, then the AGC does not require answers to the refusals which are the subject of the Refusals Motion. The parties have agreed that Dr. Blais will attend on an examination for discovery in Toronto after the delivery of any productions arising from the Productions Motion and the completion of the Inspection. However, the parties cannot agree on the duration of Dr. Blais’ examination.

[37] The Plaintiff submits that 2 hours is sufficient for Dr. Blais’ examination and that any additional questions may be asked by written interrogatories. The Plaintiff points out that Dr. Blais is 78 years old and was cross-examined for 9 hours on his affidavit filed in support of the Rule 60.12 Motion. The AGC submits that Dr. Blais should attend for one day (with appropriate accommodations including regular breaks) in order to answer questions regarding the substance of his involvement in the preparation of documents such as the 1981 Report and other substantive matters at issue in these proceedings.

[38] It is undisputed that Dr. Blais is a key witness in these proceedings. He has been involved in these proceedings and/or related litigation for over 20 years and is the author of the 1981 Report which the Plaintiff submits is determinative of liability. While Dr. Blais was cross-examined extensively for the Rule 60.12 Motion, that motion was with respect to Dr. Blais’ involvement in the production of documents, not the substance of the documents and his involvement in the authorship of documents and matters which are clearly central and probative of issues in these proceedings. In my view, 2 hours is insufficient for this purpose when considering Dr. Blais’ central role in the material issues and documents in these proceedings and the credibility issues raised by the AGC with respect to Dr. Blais generally and specifically regarding the 1981 Report and the other Disputed Documents.

[39] Having considered all of the relevant circumstances, I conclude that it is reasonable, appropriate and proportionate for Dr. Blais to attend on examination for discovery in Toronto for 1 day after the production of documents arising from the Production Motions and the completion of the Inspection and no later than February 15, 2019 with any follow-up questions to be answered by way of written interrogatories no later than February 28, 2019.

The Freedland Examination Motion

[40] The parties have agreed to resolve the Plaintiff’s request for the continued examination of Dr. Freedland by way of written interrogatories. The Plaintiff shall submit questions in writing and the AGC shall, as appropriate, have the questions answered by Dr. Freedland, Dr. David Taylor or Ms. Blaney, the AGC’s primary deponent.

[41] I am satisfied that these terms are a reasonable, appropriate and proportionate resolution to the Freedland Examination Motion. While counsel will discuss and agree upon more specific terms, all questions shall be delivered and answers provided such that the written examination is completed within 60 days.

The Witness Motions

[42] The Plaintiff is not pursuing the Plaintiff Witness Motions. Plaintiff’s counsel advises that there is no longer any medical necessity to take the evidence of these 4 witnesses before trial.

[43] The AGC no longer seeks the same relief on the AGC Witness Motion with respect to Dr. Rose. The AGC only seeks to take the evidence of Francine Jacques prior to trial on the basis that there is the possibility that she will be unavailable to testify at trial pursuant to Rule 36.01(3)(b). Ms. Jacques was an inspector in HC’s Quebec Regional Office from 1973-2008.

[44] Ms. Jacques was diagnosed with leukemia in 2008. She received chemotherapy and her leukemia went into remission. In 2015, she was advised that her leukemia would return in approximately 18 months and that she would not be considered a suitable candidate for further chemotherapy. Ms. Jacques’ advises that while her leukemia remains in remission, there is no guarantee how long it will remain so.

[45] The Plaintiff takes the position that, similar to the Plaintiff’s 4 witnesses, the AGC has not satisfied the requirement that it is medically necessary to take Ms. Jacques’ evidence prior to trial. However, the Plaintiff submits that she will agree to such an order if Ms. Jacques swears an affidavit which will serve as her examination in chief such that Plaintiff’s counsel would then cross-examine her on her affidavit. The Plaintiff provides no authority in support of this proposal other than an order from an unrelated proceeding where similar relief was granted. It is not known if this order was granted on consent or on an opposed motion. The AGC opposes these conditions.

[46] In my view, in light of the uncertainty of Ms. Jacques’ current diagnosis, it is reasonable, prudent and proportionate in the circumstances to take her evidence before trial in order to preserve it in the event that she is unable to testify at trial. While the 17-week trial begins on April 1, 2019, it is unknown when Ms. Jacques may be called to testify. I reject the Plaintiff’s request that Ms. Jacques swear an affidavit and be subject to cross-examination. The Plaintiff has provided no authority under Rule 36.01 or otherwise that such conditions are appropriate in these circumstances and I am satisfied that Ms. Jacques’ out of court examination should proceed in the ordinary manner.

[47] Ms. Jacques shall be examined out of court in Montreal, Quebec, in French, at a date and time to be agreed upon by counsel, no later than February 28, 2019.

IV. Disposition

[48] Order to go as follows:

i.) the AGC shall conduct targeted searches of its physical, non-electronic documents for the 1981 Report and any versions of the 1981 Report, including the February 1982 Memo, consistent with the directions in paragraph 25 above, and electronic searches for the 1981 Report and any versions of the 1981 Report including the February 1982 Memo, similar to those conducted for the Critical Care Paper and the Approval Sheet after the October 29, 2018 attendance and shall complete all searches, produce any relevant documents located and provide a description of its best efforts including where it searched and search terms used, as applicable, to the Plaintiff within 45 days;

ii.) the AGC shall conduct electronic searches for the 1977 Memo and the September 1982 Memo similar to those conducted for the Critical Care Paper and Approval Sheet, shall produce any relevant documents located and provide the Plaintiff with a description and explanation of the electronic searches and best efforts, including where it searched and search terms used for these documents and the previous electronic searches for the Critical Care Paper and the Approval Sheet within 45 days;

iii.) the Plaintiff shall advise the AGC within 3 days by identifying any relevant papers listed in Dr. Blais’ CV that it wishes the AGC to search for and the AGC shall conduct electronic searches for the papers identified as it did with the Critical Care Paper and the Approval Sheet and a targeted, specific search of its physical documents, consistent with that ordered for the 1981 Report in paragraph 48(i) above and the AGC shall produce any papers and any corresponding approval sheets and underlying documents located together with a description of best efforts made including search terms used and places searched, as applicable, to the Plaintiff within 45 days of receiving the Plaintiff’s list;

iv.) the AGC shall produce the Personnel File to the Plaintiff within 45 days together with a summary of what, if any, documents have been removed;

v.) the Inspection shall take place on the terms set out above in paragraph 34 within 45 days;

vi.) Dr. Blais shall attend on an examination for discovery in Toronto for 1 day (with appropriate accommodations for regular breaks) after the production of documents arising from the Production Motions and the completion of the Inspection and no later than February 15, 2019 with any follow-up questions to be answered by way of written interrogatories no later than February 28, 2019;

vii.) the Plaintiff shall submit written interrogatories and the AGC shall, as appropriate, have the questions answered by Dr. Freedland, Dr. David Taylor or Ms. Blaney with all questions delivered and answers provided within 60 days;

viii.) Ms. Jacques’ evidence shall be taken in advance of trial by examination to be conducted out of court in Montreal, Quebec, in French, at a date and time to be agreed upon by counsel, no later than February 28, 2019.

[49] If the parties cannot agree on the costs of these motions and the attendances before me, counsel shall discuss a process and timetable for the exchange and filing of written costs submissions. If the parties are unable to agree on a process and timetable, counsel may schedule a telephone case conference with me.

Released: December 3, 2018

Master M.P. McGraw