REASONS FOR DECISION

[1] Pursuant to the Class Proceedings Act, 1992,[^1] over twelve years ago, on November 3, 2008, Gerald M. Bardoul, Patricia Hill, Gertruda Metzger and Tim Metzger commenced a proposed class action against Novartis Pharmaceuticals Canada Inc.

[2] The Plaintiffs advanced a claim in negligence. The plaintiffs alleged that Zelnorm, a prescription medication manufactured by Novartis, caused increased rates of ischemic cardiovascular harm and that Novartis failed to warn of this risk.

[3] On November 25, 2008, Novartis delivered a Notice of Intent to Defend.

[4] Very little has happened after Novartis revealed that it intended to defend the action and resist certification.

[5] The Plaintiffs did not actively advance their proposed class proceeding. It seems that there were difficulties in their efforts to establish some basis in fact for general causation. For other reasons not disclosed to me, no progress was made toward a certification motion.

[6] In May 2019, Novartis served a motion to dismiss the action for delay and to seek its costs.

[7] The Plaintiffs did not wish to continue with the proposed class action, and Novartis agreed that if the action was discontinued, it would not claim costs.

[8] Class Counsel advised that very few putative class members have shown any interest in the action and those that inquired were advised that the action was not going to move forward.

[9] On consent the parties seek the following order:

[style of cause]

ORDER

THIS MOTION made by the Plaintiffs, for an Order approving the discontinuance of the within action, without costs, and with prejudice, on consent of the Defendant, was heard this day at Osgoode Hall, 130 Queen Street West, Toronto, Ontario.

ON READING the materials filed, including the consent of the Parties:

THIS COURT ORDERS that the within action be and is hereby discontinued without costs to the Parties.
THIS COURT ORDERS that the discontinuance of this action is a defence to a subsequent action by the Plaintiffs against the Defendant arising from the subject matter of the within action.
THIS COURT ORDERS that the Notice of Discontinuance, substantially in the form attached hereto as Schedule “A”, is hereby approved;
THIS COURT ORDERS that Plaintiffs’ Counsel shall provide notice of the discontinuance of this action by:

(a) sending a copy of the Notice of Discontinuance by mail or email the last known address of all putative Class Members who contacted Plaintiffs’ Counsel with respect to this action; and

(b) posting a copy of this Order and the Notice of Discontinuance on Plaintiffs’ Counsel’s websites.

SCHEDULE “A”

NOTICE OF DISCONTINUANCE OF ZELNORM CLASS ACTION

Please Read This Notice Carefully. It May Affect Your Legal Rights.

By Order of the Ontario Superior Court of Justice, all persons resident in Canada who purchased and/or ingested the prescription medication Zelnorm are advised that:

In November, 2008, a proposed class proceeding was commenced in Ontario against Novartis Pharmaceuticals Canada Inc. (“Novartis”), alleging that Zelnorm was negligently designed, manufactured, and distributed, and that inadequate warnings were given with respect to an alleged increased risk of ischemic cardiovascular events.

Novartis denies the allegations. The Plaintiffs have decided that they no longer wish to proceed with the proposed class action and filed motion materials with the Ontario Superior Court of Justice to obtain approval to discontinue the lawsuit. By Order dated DATE, 2021, the Court granted the Plaintiffs’ motion and approved the discontinuance of the proposed class proceeding.

YOU SHOULD TAKE NOTICE THAT the limitation period for bringing a claim, if there is any time left within it, recommenced on the date of the Order approving the discontinuance. On the expiry of the limitation period a right to sue may be extinguished.

Plaintiffs’ Counsel will answer questions about the discontinuance, the recommencement of the running of any limitation periods, or about pursuing a claim against Novartis at no charge. Please contact Plaintiffs’ Counsel at:

ROCHON GENOVA LLP Barristers • Avocats 121 Richmond Street West, Suite 900 Toronto, ON, M5H 2K1 Joel P. Rochon (416) 363-1867 jsloan@rochongenova.com

HIMELFARB PROSZANSKI LLP Barristers & Solicitors 480 University Avenue, Suite 1401 Toronto, ON M5G 1V2 David B. Himelfarb 416 (820-1210) dhimelfarb@himprolaw.com

[10] Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, dismissal or settlement of a class action. Section 29 states:

Discontinuance, abandonment and settlement

(1) A proceeding commenced under this Act and a proceeding certified as a class proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.

Settlement without court approval not binding

(2) A settlement of a class proceeding is not binding unless approved by the court.

Effect of settlement

(3) A settlement of a class proceeding that is approved by the court binds all class members.

Notice: dismissal, discontinuance, abandonment or settlement

(4) In dismissing a proceeding for delay or in approving a discontinuance, abandonment or settlement, the court shall consider whether notice should be given under section 19 and whether any notice should include,

(a) an account of the conduct of the proceeding;

(b) a statement of the result of the proceeding; and

[11] A motion for discontinuance or abandonment should be carefully scrutinized, and the court should consider, among other things: whether the proceeding was commenced for an improper purpose; whether, if necessary, there is a viable replacement party so that putative class members are not prejudiced; or whether the defendant will be prejudiced.[^2]

[12] No purpose would be served by refusing permission to the Plaintiffs to discontinue this almost thirteen-year old moribund proposed class action.

[13] While the action shows potential for dismissal for delay, it shows no potential to ever be certified as a class action.

[14] The action was initiated for a proper purpose, but that purpose no longer exists or cannot be achieved. The notice is appropriate in the circumstances of the immediate case.

[15] I, therefore, grant the relief requested.

Perell, J.

Released: March 25, 2021

COURT FILE NO.: CV-08-365460CP

DATE: 20210325

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GERARDA M. BARDOUL, PATRICIA HILL, GERTRUDA METZGER and TIM METZGER

Plaintiffs

and -

NOVARTIS PHARMACEUTICALS CANADA INC.

Defendants

REASONS FOR DECISION

PERELL J.

Released: March 25, 2021

[^1]: S.O. 1992, c. 6.

[^2]: Logan v. Canada (Minister of Health), [2003] O.J. No. 418 (S.C.J.), aff’d (2004), 2004 CanLII 184 (ON CA), 71 O.R. (3d) 451 (C.A.).

Bardoul v. Novartis Pharmaceuticals Canada Inc. 2021 ONSC 2261

Case Summary

REASONS FOR DECISION

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