Court File and Parties

COURT FILE NO.: CV-09-390846-00CP DATE: 2019-12-16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARIA MICEVIC, Plaintiff – AND – JOHNSON & JOHNSON, ORTHO-McNEIL-JANSSEN PHARMACEUTICALS INC., JOHNSON & JOHNSON INC., JANSSEN-ORTHO INC., COLBAR LIFESCIENCE LTD., and CANDERM PHARMA INC., Defendants

BEFORE: EM Morgan J.

COUNSEL: Brian McPhadden, for the Plaintiff (Ontario) Eric Stanger, for the Plaintiff (British Columbia) Mirilyn Sharp, for the Defendant, Canderm Pharma Inc. Barbara Chute, in person Manuel Miranda, in person for the Administrator, iDMed-Solutions Inc.

HEARD: December 13, 2019

CASE CONFERENCE ENDORSEMENT

[1] On January 28, 2019, I issued my reasons for approving the settlement of this class action. Subsequently, on March 5, 2019, I issued an endorsement settling the terms of the Order Approving Settlement. On that date certain amendments were made to the Distribution Protocol accompanying the Settlement.

[2] Class counsel has retained iDMed-Solutions Inc. as the Administrator for the settlement. A representative of the Administrator participated in this case conference and advised that the settlement funds have now been fully distributed in accordance with the approved Settlement Distribution Protocol.

[3] This case conference was initially convened at the request of Barbara Chute, a class member who previously appeared in person at the settlement approval hearing, as is her right. Ms. Chute was recently put on inquiry about the payout of settlement funds when she noticed that the representative Plaintiff appeared to have been paid twice for her approved honorarium. A request for a case conference was also communicated by counsel for Canderm. She was concerned that there appeared to be a discrepancy between the approved fees, as adjusted in my March 5, 2019 Order, and the requested fees submitted at the settlement approval hearing in January 2019.

[4] Ms. Chute’s original concern at the settlement hearing was that the proposed settlement distribution undercompensated class members like her who had lost income as a result of the product at issue in the litigation. That intervention resulted in an adjustment increasing the funds available for class members who could establish income loss.

[5] I gather that since that time Ms. Chute has had some difficult communication issues with the Administrator, but that her claim has now been paid out to her. When I asked Ms. Chute if she had received what she was expecting to receive, she advised me that while she would appreciate receiving as much compensation as possible she is satisfied that she has been paid for the losses that she can establish. Consequently, she is not specifically seeking any more money in this case conference.

[6] Ms. Chute’s difficulties with the settlement led to some understandable alarm on her part when she saw what looked like a double payment going to the representative Plaintiff. It turns out that this double payment was a clerical error on the Administrator’s part that had to be reversed. The Administrator assured me during the case conference that the matter has been resolved and that, in fact, the representative Plaintiff has been paid what was coming to her under the Settlement and nothing more.

[7] Counsel for Canderm explained at the case conference that when she was notified of Ms. Chute’s concerns she was prompted to take a closer look herself at the distribution of settlement proceeds. When she did so, she was surprised to see that class counsel was paid more than her records showed they had claimed. Apparently, class counsel’s original documentation showed fees in the total amount of $87,500, which then would have been reduced by $20,000 with the March 5, 2019 adjustment of the Distribution Protocol. As it turns out, however, they have received payment of $78,875 from the settlement funds. This discrepancy led Canderm’s counsel to wonder whether too much settlement money has gone to class counsel and there should be that much more available to the class.

[8] It turns out that while counsel for Canderm is correct about the original amount of fees claimed by class counsel, the amount was increased by $11,375 in the documentation that was actually put before me at the settlement approval hearing last January. As Ontario class counsel explains it, the difference reflects the 13% HST, which had been inadvertently left out of the original documentation but was included in the documentation submitted to the court.

[9] This difference between what Canderm’s counsel thought was approved and adjusted and what has been been paid understandably caught Canderm’s counsel by surprise. However, the higher amount is in fact the approved amount. I was not aware of the last-minute adjustment when I considered the fee request at the settlement approval hearing, but I was satisfied that the amount of fees presented to me, including HST, was fair under the circumstances. In fact, it is typical for fees to be approved together with HST, and it would be the unusual case in which a court would be compelled to order fees paid without including HST.

[10] In speaking at the case conference Ms. Chute was apologetic for having prompted another session in which this settlement had to be reviewed once again. As I told her, there was no need to apologize for exercising her rights and for alerting all parties to what appeared to be accounting or distribution issues that needed to be addressed. I am pleased that the accounting has worked out and that the settlement has been implemented properly by all parties, but there is nothing wrong with being vigilant.

[11] In the result, I am satisfied that the settlement funds have been distributed correctly. There are no adjustments or recalculations to be made. Since the Administrator advises that the funds have been disbursed in their entirely, there is nothing further to be done in terms of the settlement.

Morgan J.

Date: December 16, 2019