Court File and Parties
COURT FILE NO.: CV-19-00620048-00CP DATE: 20210820
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DARRYL GEBIEN Plaintiff
– and –
APOTEX INC., APOTEX PHARMACEUTICAL HOLDINGS, INC., BRISTOL-MYERS SQUIBB CANADA, BRISTOL-MYERS SQUIBB COMPANY, PALADIN LABS, ENDO PHARMACEUTICALS INC., ENDO INTERNATIONAL PLC, JANSSEN INC., JOHNSON & JOHNSON, PHARMASCIENCE INC., JODDES LIMITED, PRO DOC LIMITEE, THE JEAN COUTU GROUP (PJC) INC., MYLAN PHARMACEUTICALS ULC, MYLAN N.V., PURDUE PHARMA INC., PURDUE PHARMA L.P., THE PURDUE FREDERICK COMPANY INC., PURDUE FREDERICK INC., RANBAXY PHARMACEUTICALS CANADA INC., SUN PHARMACEUTICAL INDUSTRIES LTD., HIKMA LABS INC., HIKMA PHARMACEUTICALS PLC, WEST-WARD COLUMBUS INC., SANIS HEALTH INC., SANDOZ CANADA INC., SANDOZ INTERNATIONAL GMBH, TEVA CANADA LIMITED, TEVA PHARMACEUTICALS USA, INC., TEVA PHARMACEUTICAL INDUSTRIES LTD., ACTAVIS PHARMA COMPANY, VALEANT CANADA LP/ VALEANT CANADA S.E.C, BAUSCH HEALTH COMPANIES INC., AMERISOURCEBERGEN CANADA CORPORATION, KOHL + FRISCH DISTRIBUTION INC., NU-QUEST DISTRIBUTION INC., ABBOTT LABORATORIES INC., LIMITED; and PROCURITY INC. Defendants
Counsel: Kirk M. Baert for the Plaintiff
HEARD: In writing
REASONS FOR DECISION
PERELL, J.
[1] This is a proposed class action under the Class Proceedings Act, 1992, S.O. 1992 with respect to opiod drug products. As one will gather from the style of cause, a large number of domestic and foreign defendants have been joined as parties to the action, including Sandoz International GMBH, a foreign defendant.
[2] In correspondence from counsel for the plaintiff written with the consent of Sandoz International GMBH, which correspondence was supported by affidavits from two representatives of Sandoz International GMBH, I have been informed of the following facts:
a. Sandoz International GMBH is incorporated pursuant to the laws of Germany and is domiciled in Germany.
b. Sandoz International GMBH does not have and has never had, an office or any other physical premises in Canada.
c. Sandoz International GMBH does not own any shares of Sandoz Canada Inc., directly or indirectly.
d. Sandoz International GMBH does not, and did not, manufacture, market, export, distribute or sell anywhere in Canada any of the opioid drug products which are the subject of this action.
e. Sandoz International GMBH does not, and did not, conduct any research and development work relating to any of the opioid drug products which are the subject of this action.
f. Sandoz International GMBH did not draft the warnings relating to any of the opioid drug products, which are the subject of this action.
g. Sandoz International GMBH did not prepare any product literature or informational materials related to the opioid drug products which are the subject of this action.
[3] Based on this evidence, counsel is satisfied that Sandoz International GMBH is not a necessary or proper party for this legal proceeding and it would appear that the Court may not have jurisdiction over Sandoz International GMBH in this action.
[4] The Plaintiff, therefore, on consent of Sandoz International GMBH seeks an order dismissing this action as against Sandoz International GMBH.
[5] 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.
[6] 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.[^1]
[7] I am satisfied that leave should be granted dismissing the action as against Sandoz International GMBH.
[8] Order accordingly. I have signed the Order.
Perell, J.
Released: August 20, 2021
COURT FILE NO.: CV-19-00620048-00CP DATE: 20210820
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DARRYL GEBIEN Plaintiff
- and -
APOTEX INC., APOTEX PHARMACEUTICAL HOLDINGS, INC., BRISTOL-MYERS SQUIBB CANADA, BRISTOL-MYERS SQUIBB COMPANY, PALADIN LABS, ENDO PHARMACEUTICALS INC., ENDO INTERNATIONAL PLC, JANSSEN INC., JOHNSON & JOHNSON, PHARMASCIENCE INC., JODDES LIMITED, PRO DOC LIMITEE, THE JEAN COUTU GROUP (PJC) INC., MYLAN PHARMACEUTICALS ULC, MYLAN N.V., PURDUE PHARMA INC., PURDUE PHARMA L.P., THE PURDUE FREDERICK COMPANY INC., PURDUE FREDERICK INC., RANBAXY PHARMACEUTICALS CANADA INC., SUN PHARMACEUTICAL INDUSTRIES LTD., HIKMA LABS INC., HIKMA PHARMACEUTICALS PLC, WEST-WARD COLUMBUS INC., SANIS HEALTH INC., SANDOZ CANADA INC., SANDOZ INTERNATIONAL GMBH, TEVA CANADA LIMITED, TEVA PHARMACEUTICALS USA, INC., TEVA PHARMACEUTICAL INDUSTRIES LTD., ACTAVIS PHARMA COMPANY, VALEANT CANADA LP/ VALEANT CANADA S.E.C, BAUSCH HEALTH COMPANIES INC., AMERISOURCEBERGEN CANADA ORPORATION, KOHL + FRISCH DISTRIBUTION INC., NU-QUEST DISTRIBUTION INC., ABBOTT LABORATORIES INC. ,LIMITED; and PROCURITY INC. Defendants
REASONS FOR DECISION
PERELL J.
Released: August 20, 2021
[^1]: 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.).