Court File and Parties

COURT FILE NO.: CV-19-00620507-00CP DATE: 20200420 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Takwihin Kibalian and Yeghia Kibalian, Plaintiffs – AND – Allergan PLC, Allergan Limited, Allergan, Inc., Allergan USA, Inc. and Allergan Inc., Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Vincent Genova, Annelis Thorsen-Cavers, and Kate Cahilli, for the Plaintiffs Anthony Leoni, for the Plaintiffs in Bunsko v Allergan Inc. (British Columbia Court File No. VA S196308) Peter Pliszka and Mitchell Stephenson, for the Defendants

HEARD: April 20, 2020

Initial Case Conference

[1] This proposed class action was commenced on May 23, 2019. It entails a claim by a putative class of persons who received allegedly defective breast implant products, as well as Family Law Act claimants related to those persons. It is one of five cases commenced nation-wide in respect of the same products and against the same Defendants (although I understand that the action in Quebec also names other defendants who manufacture or distribute similar products).

[2] Counsel for the Plaintiffs would like to set a schedule leading up to a fixed date for a certification motion. Counsel for the Defendants submit that setting a schedule for the Ontario action may be premature given the state of play of the cases in the other provinces.

[3] Counsel for one of the parallel actions in British Columbia participated in this case conference. He advises that a certification motion date in October 2020 has been set in the Alberta action and that a certification motion date in September 2021 has now been set in one of the British Columbia actions. He and Plaintiff’s counsel in Ontario have also advised that they have agreed to form a consortium and litigate their two actions together in Ontario and to stand down the B.C. claim, provided that some arrangement can be made to coordinate this the Merchant Law Group, who are plaintiffs’ counsel in both the Alberta action and the other action in B.C. Apparently, there have been some tentative discussions along those lines with the Merchant firm, but they are as yet inconclusive.

[4] Counsel for the Defendants proposes that we attempt to arrange a multi-jurisdictional case conference, either by telephone or videoconference, with all of the counsel and all of the judges managing the 5 cases in 4 provinces participating. They are hopeful that in that way the many coordination and procedural issues can be ironed out at once.

[5] While I do not dismiss the possibility of a multi-jurisdictional case conference, my inclination is that now is not the time. Each of the judges in each of the provinces is responsible for the action in their own jurisdiction and has no authority over the actions in the other provinces. Without agreement from the parties – in particular among the plaintiffs in each jurisdiction – there is not much the judges can do amongst themselves about overlapping claims. Any one judge could entertain a motion for a stay in their jurisdiction or could schedule their court’s case to proceed. But I certainly could not order the B.C. claim to wait until the Ontario claim catches up, or vice versa. The duplication of claims is sometimes something we just have to live with in a federal state.

[6] On the other hand, plaintiffs’ counsel in each of the jurisdictions could come to an arrangement among themselves to resolve the duplication. They could, for example, include each other in a consortium, or have some provincial actions stand down awaiting a result in one or more that are proceeding ahead, or fashion some creative mix of those possibilities. A meeting of the minds among plaintiffs’ counsel holds out a greater prospect for resolving the overlap among jurisdiction than does a meeting of all judges and counsel at this stage.

[7] In addition to the jurisdictional issues, I am advised that two of the Defendants have not yet been served with the Statement of Claim: Allergan PLC (located in Ireland) and Allergan USA, Inc. (located in the United States). The other Defendants are represented by counsel who participated in this case conference, but they do not have instructions to accept service on behalf of the Irish and American companies.

[8] Plaintiffs’ counsel advise that they been engaged in some discussions with the present Defendants’ counsel as to assurances they might offer in exchange for dropping the claim against the foreign parties, but so far those discussions have not produced any resolution. I would suggest that those exploratory discussions either continue as soon as possible or, failing that, Plaintiffs’ counsel make arrangements to have the foreign parties properly served. They are not located in jurisdictions where service of Canadian legal process is thought to present great difficulty. I would not want formal service to become an impediment to the case moving forward.

[9] In the meantime, the parties have agreed on the following schedule for this action:

• Plaintiffs’ certification motion record to be served by December 31, 2020;
• Defendants’ responding record to be served by June 1, 2021;
• Plaintiffs’ reply record to be served by July 15, 2021;
• Cross-examinations to take place after all records are served, to be scheduled by counsel;
• Certification motion to be heard December 1-3, 2021.

[10] The parties are to hold another case conference with me 30 days or so from now. That will give me an opportunity to be updated with respect to the issues in the other jurisdictions and to possibly re-visit the question of holding a multi-jurisdictional case conference. I would ask counsel to be in touch with my assistant to arrange a date that is convenient for all concerned.

Date: April 20, 2020 Morgan J.