Medtronic of Canada Ltd. et al. , 2019 ONSC 3687

Court File and Parties

COURT FILE NO.: 14-61316 DATE: 2019/06/14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christine Landry by her Litigation Guardian, Huguette Landry, Huguette Landry, Philippe Landry and The Estate of Roger Landry Plaintiffs

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Medtronic of Canada Ltd./Medtronic du Canada Ltee, Medtronic Minimed, Inc., a Delaware corporation; Medtronic, Inc., a Minnesota corporation; Unomedical Devices SA de CV, a Mexican Corporation; Unomedical A/S, a Danish corporation and Dr. Marie France Levac Defendants

BEFORE: Madam Justice S. Corthorn

COUNSEL: Anisha Visvanatha, counsel for the Medtronic defendants and as agent for all other parties

HEARD: May 31, 2019

Endorsement

Introduction

[1] The motion by the defendants, Medtronic of Canada Ltd., Medtronic Minimed, Inc. and Medtronic, Inc. (collectively, “Medtronic”) is for an order “to provide for the interim protection and maintenance of confidentiality in respect of certain documents and information produced or disclosed by the parties”. The notice of motion is addressed to the plaintiffs and to Medtronic’s co-defendants.

Service of the Motion Record

[2] The affidavit of service included with the motion record is evidence of service of the motion record on the plaintiffs. There is no evidence that the motion record was served on any of Medtronic’s co-defendants.

[3] Ms. Visvanatha (“Counsel”) informed the court that she was appearing as agent for counsel for all parties. It is unclear how it was possible for Counsel to do so in the absence of evidence of service of the motion record on Medtronic’s co-defendants.

[4] The motion record includes a draft order in the form that Medtronic was seeking when the motion record was served. Medtronic is no longer seeking an order in that form. On the return of the motion, Medtronic requested an order that differed in a number of ways from the draft order included with the motion record.

[5] On the return of the motion, Counsel also provided the court with a consent, executed by counsel for Medtronic on behalf of their clients and as agent for counsel for all other parties. By “all other parties”, I mean the co-defendants with respect to whom there is no evidence of service of the motion record. The consent was for an order in the form of the draft order requested on the return of the motion.

[6] Either Medtronic is in a position to file an affidavit of service with respect to service of the motion record on the co-defendants or it requires relief in the form of an order dispensing with the requirement for service of the motion record on the co-defendants.

Terms of the Proposed Order

[7] Subsequent to the return of the motion, Counsel filed a letter with the court. With that letter Counsel included a consent signed on behalf of all parties and a revised order (“the Proposed Order”). The Proposed Order differs slightly from both the order included in the motion record and the draft order filed with the court on the return of the motion.

[8] The Proposed Order is based on an order made by Perrell J. in Robinson v. Medtronic Inc., 2011 ONSC 3663.

[9] I recognize that the parties have done a significant amount of work to reach a consent with respect to the terms of the Proposed Order. I do not wish to derail the progress made by the parties in that regard. There is, however, a difference between the present action and the matter before Perrell J. in Robinson. The latter was a class action; the present action is not.

[10] Without further submissions from counsel for the parties, it is unclear to me whether that difference is material to the terms of the Proposed Order.

[11] In Robinson, Perrell J. identifies that the defendants’ motion for a confidentiality order “raised the question of the adequacy of the deemed undertaking in the context of a class action” (para. 2). Perrell J. highlights that the terms of his order build upon the deemed undertaking (para. 5) and address the exigencies of the class action (para. 43).

a) Perrell J.’s ‘Third Modification’

[12] My first concern about the terms of the Proposed Order arises from the parties’ apparent and collective reliance on what Perrell J. describes as his “third modification” to the deemed undertaking rule. At paras. 47-49 of his decision, Perrell J. recognizes the problems that might arise if class members have the same rights as do the representative plaintiffs to reports and information disclosed to their counsel in the proceedings.

[13] In summary, Perrell J. recognizes that it is not practical to impose the deemed undertaking on class members. He also recognizes that to permit unfettered disclosure of information and documents to class members undermines the goals of the deemed undertaking. Therefore, Perrell J. includes the following paragraphs in the order:

(2) The deemed undertaking set out in this Order applies to: (a) all parties and their lawyers of record; (b) provincial health authorities with claims for compensation in this action; (c) professional and non-professional staff of the lawyers of record; (d) experts and consultants retained by the parties for the purposes of this action; (e) witnesses, including any Class Members, who are called by the parties to give evidence for the purposes of this action[.]

(3) The persons subject to the deemed undertaking set out in this Order are deemed to undertake not to use evidence or information to which this Order applies for any purpose other than those of this action.

(4) For greater certainty, the deemed undertaking under this Order prohibits Class Counsel from disclosing evidence or information to a Class Member, unless: (a) a party to this action calls the Class Member as a witness to give evidence for the purposes of this action, including evidence at an individual issues trial; (b) the opposing party consents to the disclosure of the evidence or information to the Class Member; or, (c) the court orders that the evidence or information may be disclosed to the Class Member.

[14] The parties in the present action include in the Proposed Order, paragraphs 2, 3, and 4, as set out immediately above, with the following modifications:

• Paragraph 2(e) makes no reference to Class Members. As modified, it reads, “witnesses who are called by the parties to give evidence for the purpose of this class action.”
• Paragraph 4 also makes no reference to Class Members. As modified, it reads as follows (the modifications are in bold print):

For greater certainty, the deemed undertaking under this Order prohibits Class Counsel from disclosing evidence or information to a Class Member any person other than those persons identified in Section (2) above, unless: (a) a party to this action calls the person as a witness to give evidence for the purposes of this action, including evidence at an individual issues trial; (b) the opposing party consents to the disclosure of the evidence or information to the person; or, (c) the court orders that the evidence or information may be disclosed to the person.

[15] In crafting paragraph 2 for the purposes of the class action in Robinson, Perrell J. intended that paragraph to be a ‘codification’ of a convention or practice of lawyers bound by the deemed undertaking. That convention or practice is for the lawyers to make it clear to employees, agents, consultants, experts, and service providers that “they should comply with the deemed undertaking” (para. 45). Perrell J. comments that the transparency provided by paragraph 2 of his order “is a worthwhile clarification of the deemed undertaking.”

[16] Perrell J. is careful and detailed in his explanation as to how the order builds upon the deemed undertaking. Paragraph 4 of his order, intended to address the exigencies of a class action, is an example of the care and detail with which he approached crafting the order.

[17] Perrell J. did not include in his order a paragraph similar to paragraph 4 of the Proposed Order (i.e. dealing with anyone other than Class Members). He did, however, include two paragraphs that permit the parties to address disclosure beyond the extent permitted by the order.

[18] First, in paragraph 5, Perrell J. ordered that, “the deemed undertaking under this Order does not prohibit a use to which the person who disclosed the evidence or information consents.” The parties in the matter before me have included paragraph 5 (exactly as quoted above).

[19] Second, paragraph 9 of the order in Robinson provides that, “[on] the motion of a party or class member, the provisions of this Order may be varied by further order of this court.” Paragraph 9 of the Proposed Order includes the following, “[on] the motion of a party, the provisions of this Order may be varied by further order of this court.”

[20] I am concerned that by including paragraph 4 of the Proposed Order the parties:

• Overlook the specific purpose served by paragraph 4 of the order in Robinson;
• Fail to appreciate that the individuals covered by paragraph 4(a) of the Proposed Order (witnesses) are addressed in paragraph 2(e) of the Proposed Order;
• Fail to appreciate the relief available pursuant to either of paragraphs 5 and 9 of the Proposed Order. Both paragraphs potentially provide for the disclosure of documents and information to persons other than those listed in paragraph 2 of the Proposed Order; and
• Overlook the potential for paragraph 4 to give rise to unintended consequences that may serve to add to issues to be determined on interim motions and/or increase the costs of the action.

[21] Clarification of the purposes to be served by including paragraph 4 of the Proposed Order is required for consideration to be given to including that term in the order.

b) Potentially Superfluous Paragraphs

[22] In his order in Robinson, Perrell J. addressed the use that might be made, in other proceedings, of evidence obtained in that class action. To that end, paragraphs 7 and 11 of his order are:

(7) The deemed undertaking under this Order does not prohibit the use of evidence obtained in this action, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding.

(11) If a party to this action proposed to use documents and information that is subject to this Order for a motion in an action, the party may serve the motion material but the party shall not file the motion materials for 15 days to provide the opposing party an opportunity to bring a motion for a sealing order or publication ban with respect to the material to be filed.

[23] The Proposed Order includes a slightly modified version of the same paragraphs. In the Proposed Order, paragraphs 7 and 11 read as follows (the modifications are in bold print):

(7) The deemed undertaking under this Order does not prohibit the use of evidence obtained in this action, or information obtained from such evidence, to impeach the testimony of a witness in this another proceeding.

(11) If a party to this action proposed to use documents and information that is subject to this Order for a motion in this an action, the party may serve the motion material but the party shall not file the motion materials for 15 days to provide the opposing party an opportunity to bring a motion for a sealing order or publication ban with respect to the material to be filed.

[24] Paragraphs 7 and 11 of Perrell J.’s order in Robinson address the use that may be made of evidence, documents, or information from the subject action in ‘other’ proceedings. Paragraphs 7 and 11 of the Proposed Order do not do address the same thing. They address the use that may be made, in the subject action, of evidence, documents, or information from the subject action.

[25] Without an explanation of the purpose to be served by paragraphs 7 and 11 of the Proposed Order, I am concerned that they are redundant and, therefore, unnecessary.

[26] Paragraph 3 of the Proposed Order provides that, “persons subject to the deemed undertaking set out in this Order are deemed to undertake not to use evidence or information to which this Order applies for any purpose other than those of this action” (emphasis, added). I note that paragraph 3 does not make reference to “documents”. The parties may wish to consider whether the paragraph requires amendment in that regard so as to capture the totality of what is captured by paragraphs 7 and 11 of the order in Robinson.

[27] Does a “purpose … of this action” referred to in paragraph 3 include impeachment of witnesses called at trial (paragraph 7 of the Proposed Order) and a motion (paragraph 11 of the Proposed Order)? Are paragraphs 7 and 11 necessary?

[28] The order in Robinson did not provide the parties to the class action with the opportunity to bring a motion for a sealing order or a publication ban with respect to any motion pursued in the class action. Why do the parties to the present action require such a term in their order?

[29] Once again, a better explanation of the purpose to be served by paragraphs 7 and 11 of the Proposed Order is required.

c) Minor Revisions Required

[30] On a minor note, paragraph 4 of the Proposed Order needs to be revised such that the sub-paragraphs are lettered (a), (b), and (c) instead of (a), (a), and (b).

[31] In addition, paragraph 6 of the Proposed Order needs to be revised such that the sub-paragraphs are lettered (a) to (c) (rather than (b) to (d) in the current draft).

Summary

[32] In light of my concerns regarding the terms of the Proposed Order, I am not prepared to grant the relief requested. Medtronic shall make arrangements for the motion to be continued before me in open court and, at that time, address the concerns raised in this endorsement.

[33] Further written submissions (including in the form of a letter to the court or to me personally), with respect to the terms of the order requested on the motion, are not permitted. The matter is to be brought back before the court even if all of the parties consent to the terms of a further draft order.

[34] In the interim, Medtronic is in a position to address the lack of evidence of service of the February 14, 2019 motion record on the Unomedical defendants.

[35] In summary:

1. The defendants/moving parties Medtronic of Canada Ltd./Medtronic du Canada Ltee, Medtronic Minimed, Inc., a Delaware corporation, and Medtronic, Inc., a Minnesota corporation (“Medtronic”) shall take the steps necessary to bring the motion back before the court.
2. If the February 14, 2019 motion record was served on the defendants, Unomedical Devices SA de CV, a Mexican Corporation, Unomedical A/S, a Danish corporation, and Dr. Marie France Levac, Medtronic shall file an affidavit of service with respect to this service.
3. In the event the motion record was not served on the defendants named in paragraph 1, above, Medtronic shall: a) Take the steps necessary in support of a request for relief in the form of an ordering dispensing with the requirement for service on those defendants of the February 14, 2019 motion record and other documents, if any, upon which Medtronic intends to rely when the motion is brought back before the court; or b) Serve on those defendants the February 14, 2019 motion record and other documents, if any, upon which Medtronic intends to rely when the motion is brought back before the court.

[36] I remain seized of this matter with respect to additional relief related to service of the February 14, 2019 motion record and resolution of the terms of the order sought on the motion.

Madam Justice S. Corthorn Date: June 14, 2019

Medtronic of Canada Ltd. et al. , 2019 ONSC 3687

COURT FILE NO.: 14-61316 DATE: 2019/06/14 ONTARIO SUPERIOR COURT OF JUSTICE RE: Christine Landry by her Litigation Guardian, Huguette Landry, Huguette Landry, Philippe Landry and The Estate of Roger Landry Plaintiffs

• and - Medtronic of Canada Ltd./Medtronic du Canada Ltee, Medtronic Minimed, Inc., a Delaware corporation; Medtronic, Inc., a Minnesota corporation; Unomedical Devices SA de CV, a Mexican Corporation; Unomedical A/S, a Danish corporation and Dr. Marie France Levac Defendants BEFORE: Madam Justice Sylvia Corthorn COUNSEL: Anisha Visvanatha, counsel for the Medtronic defendants and as agent for all other parties ENDORSEMENT Madam Justice Sylvia Corthorn

Released: June 14, 2019