COURT FILE NO.: CV-20-00649597

DATE: 20210520

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LOBLAW COMPANIES LIMITED, SHOPPERS DRUG MART INC., and SANIS HEALTH INC.

AND:

ROYAL & SUN ALLIANCE INSURANCE COMPANY OF CANADA, et al.

BEFORE: Mr. Justice Chalmers

COUNSEL: (see attached counsel slip)

HEARD: May 20, 2021, by videoconference

ENDORSEMENT

[1] The Applicants bring this motion for a Norwich Order to compel Teva Canada Limited (Teva) to produce all relevant insurance policies which name any of the Applicants as additional insureds. The Applicants also seek an order compelling the general counsel for Teva to attend a Rule 39 examination to answer questions with respect to the insurance policies issued to Teva during the relevant time period. Teva brings a cross-motion for a protective order.

[2] At the beginning of the motion, counsel for the Applicants advised that there was an agreement with Teva with respect to its motion to produce the relevant insurance policies. Teva agrees to produce all relevant policies and will deliver a letter by May 21, 2021, which confirms that all policies which include any of the Applicants as additional insureds has been produced. On the basis of that agreement, the Applicants withdraw their motion without prejudice to renewing the motion at a later date if circumstances require.

[3] Counsel for the Applicants also advised that his clients consent to Teva’s motion for the protective order brought with respect to the responsive policies, however the Applicants do not consent to the protective order with respect to the wording of the contract fabrication agreement (the CFA”) and the QBE policy. Argument on Teva’s motion for a protective order was limited to the CFA and the QBE policy.

[4] Teva takes the position that the CFA and QBE policy contain highly sensitive confidential information and are subject to a confidentiality clause contained in the CFA. Teva argues that the disclosure of the information would be prejudicial and detrimental to not only Teva but to the wider pharmaceutical industry which depends on the protection of confidentiality in commercial arrangements.

[5] Teva proposes that it provide the unredacted version of the documents to counsel and the presiding judge but that the court record contain redacted documents. None of the parties were able to identify any prejudice with respect to this proposal. The parties will have the complete documents and will be able to make any arguments based on those arguments.

[6] The CFA includes a confidentiality provision which provides that each party receiving confidential information shall keep the information strictly confidential. I am satisfied that the QBE policy issued to Teva and the terms of the CFA fall within the definition of confidential information. I am also satisfied that none of the parties will be prejudiced if the court file includes redacted documents, but the unredacted documents are provided to the parties and the presiding judge.

[7] I grant the order sought by Teva. The documents filed with the court shall have the confidential material redacted. For the purposes of the order, “confidential information” means the terms of the CFA, the terms of the QBE insurance policies issues to Teva (the “QBE Policy”), the terms of the insurance policies disclosed to the Applicants by Teva (the “Canada Policies”), and any insurance policies that are disclosed by Teva to the Applicants following the date of this order (“Additional Teva Policies”). Finally, confidential information includes any document or thing that reveals the contents of the CFA, the QBE policy, the Canada Policies or the Additional Teva Policies.

[8] Up to the date of the hearing of the Application, I remain seized with respect to any matters arising from the confidentiality order. The maintenance of the confidentiality during the hearing of the Application shall be in the discretion of the presiding judge.

[9] Order to go in accordance with the draft order filed and signed by me.

DATE: MAY 20, 2021