COURT FILE NO.: CV-20-00648584-00CP
DATE: 20210812
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NEERAJ CHOPRA Plaintiff
- and -
TEVA CANADA LIMITED, SANDOZ CANADA INCORPORATED, PRO DOC LIMITEE, SANIS HEALTH INC., SIVEM PHARMACEUTICALS ULC and MYLAN PHARMACEUTICALS ULC Defendants
Glyn Hotz for the Plaintiff Scott Maidment and Jennifer Dent for the Defendant Mylan Pharmaceuticals ULC Laura Fric and Robert Carson for the Defendants Teva Canada Limited Peter Pliszka and Zohaib Maladwala for the Defendants Sandoz Canada Inc., Pro Doc Limitee, Sanis Health Inc, and Sivem Pharmaceuticals ULC
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
REASONS FOR DECISION
PERELL, J.
[1] On July 9, 2018, Health Canada issued a recall of the drug Valsartan. The reason for the recall was contamination with NDMA, a probable carcinogen. The recall stipulated five companies as distributors of the medication; namely: Teva Canada Limited, Sandoz Canada Inc., Pro Doc Limitee, Sanis Health Inc., and Sivem Pharmaceuticals ULC.
[2] On September 13, 2018, Health Canada published a notice advising that a second contaminant and probable carcinogen NDEA had also been detected, and on November 28, 2018, Health Canada issued a recall notice that added Mylan Pharmaceuticals ULC.
[3] The August 18, 2018 Health Canada notice stated that the contaminant NDMA was introduced as a result of a change in manufacturing processes at Zhejiang Huahai Pharmaceuticals in 2012.
[4] On September 30, 2020, pursuant to the Class Proceedings Act, 1992,[^1] the Plaintiff, Neeraj Chopra, commenced this proposed class action, and on October 30, 2020, he filed his Statement of Claim against Teva Canada Limited, Sandoz Canada Inc., Pro Doc Limitee, Sanis Health Inc., Sivem Pharmaceuticals ULC, and Mylan Pharmaceuticals ULC.
[5] At the time of issuance of the Chopra Action, counsel for Mr. Chopra was aware of another action having been issued in Ontario (the “Palmer Action”). However, the pleading in the Palmer Action made no mention of NDEA, the second contaminant, and it did not name Mylan Pharmaceuticals ULC as a defendant.
[6] After discussions on carriage, counsel on the Chopra Action and counsel on the Palmer Action decided that the Palmer Action would continue as constituted, and that the Chopra Action could continue just against Mylan.
[7] On June 3, 2021, counsel for Mylan confirmed to counsel for Chopra that: (a) Mylan does not manufacture the active pharmaceutical ingredient (“API”) in MYLAN-VALSARTAN; and (b) Mylan would consent to an order dismissing the Chopra Action against Mylan with prejudice and without costs. As it was determined that Mylan does not manufacture the API in MYLAN-VALSARTAN, Mr. Chopra agreed to dismiss the action against Mylan with prejudice and without costs. That agreement was confirmed with counsel for Mylan on June 3, 2021.
[8] In light of the carriage decision and in light of significant litigation risks, Mr. Chopra gave his counsel instructions to discontinue or have dismissed his action against the other defendants. In particular, Mr. Chopra has used medication distributed by three manufacturers and he would have difficulty attributing any damages to a specific product.
[9] Counsel to all of the defendants have consented to a dismissal of the action without costs.
[10] As there are other proposed class actions issued in Canada, including in Ontario, British Columbia, Alberta and Saskatchewan, there is no prejudice to putative Class Members.
[11] 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
(c) a description of any plan for distributing settlement funds.
[12] 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]
[13] No purpose would be served in the immediate case by refusing consent to the dismissal of Mr. Chopra’s proposed class action and it is an appropriate case to grant consent.
[14] Order accordingly. I have signed the Order.
Perell, J.
Released: August 12, 2021
COURT FILE NO.: CV-20-00648584-00CP
DATE: 20210812
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NEERAJ CHOPRA Plaintiff
- and -
TEVA CANADA LIMITED, SANDOZ CANADA INCORPORATED, PRO DOC LIMITEE, SANIS HEALTH INC., SIVEM PHARMACEUTICALS ULC and MYLAN PHARMACEUTICALS ULC Defendants
REASONS FOR DECISION
PERELL J.
Released: August 12, 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 ONCA 184, 71 O.R. (3d) 451 (C.A.).