COURT FILE NO.: CV-13-475701-00CP
DATE: 20211005
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALBERT C. BATTEN and THE ESTATE OF MARGARET JANE HAMILTON, on behalf of her Estate Representative Wendy Nelson, and
WENDY NELSON, personally
Plaintiffs
- and -
BOEHRINGER INGELHEIM (CANADA) LTD., BOEHRINGER INGELHEIM PHARMACEUTICALS, INC., BOEHRINGER INGELHEIM PHARMA GMBH & CO KG, and BOEHRINGER INGELHEIM INTERNATIONAL GMBH
Defendants
Bryan C. McPhadden, Charles M. Wright, Daniel E.H. Bach, and Jill S. McCartney for the Plaintiffs
Scott Maidment for the for the Defendants
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
[1] This is a motion made by the Plaintiffs, on consent, for an Order approving the discontinuance without costs of the within action and for an Order approving the discontinuance without costs of Court File No. 275/15CP, The Estate of Margaret Jane Hamilton, on her behalf of her Estate Representative Wendy Nelson, and Wendy Nelson, personally, v. Boehringer Ingelheim Pharmaceuticals, Inc. et al.
[2] Pursuant to the Class Proceedings Act, 1992,[^1] on March 7, 2013, Albert C. Batten commenced a proposed class action against: (a) Boehringer Ingelheim (Canada) Ltd. (“Boehringer-Canada”); (b) Boehringer Ingelheim Pharmaceuticals, Inc.; (c) Boehringer Ingelheim Pharma GmbH & Co. KG; and (d) Boehringer Ingelheim International GmbH. (collectively, “Boehringer”). McPhadden Samac Tuovi was lawyer of record.
[3] On December 17, 2015, an Amended Statement of Claim was issued with The Estate of Margaret Jane Hamilton, on behalf of her Estate Representative Wendy Nelson, and Wendy Nelson, personally, being added as Plaintiffs. Siskinds LLP joined McPhadden Samac Tuovi, as lawyers for the plaintiffs.
[4] Boehringer is a pharmaceutical company that manufactures and distributes in Canada, dabigatran, a drug marketed as Pradaxa® (formerly Pradax®). Pradaxa® is an anticoagulant. Its Product Monograph specifies that Pradaxa® is indicated for: hip and knee surgery; venous thromboembolism events (deep vein thrombosis or “DVT”); pulmonary embolism (“PE”); and atrial fibrillation (“AF”), which is a serious heart condition that causes strokes and heart attacks. The use of anticoagulants for the treatment of AF to prevent strokes and heart attacks is long established, and Pradaxa® has become the predominant choice of an anticoagulant for AF treatment.
[5] Up until April 2016, when Praxbind® (the drug idarucizumab) was approved for sale in Canada, Pradaxa® was sold without an antidote. Mr. Batten, the Hamilton Estate, and Ms. Nelson alleged that using Pradaxa® carried the risk of excessive bleeding and that Boehringer breached a duty to warn that there was no antidote for the drug.
[6] The Plaintiffs moved for certification, but on January 5, 2017, I dismissed the motion for certification.[^2] On November 3, 2017, The Divisional Court dismissed the Plaintiffs' appeal.[^3] On February 28, 2018, the Court of Appeal denied leave to appeal from the decision of the Divisional Court.
[7] The Plaintiffs have given instructions that the action, which might continue as an individual action, but which has been dormant since February 28, 2018, be discontinued.
[8] Boehringer consents to the discontinuance without costs.
[9] This action is now over eight years old. To date, proposed class counsel are aware of only a modest number of individuals who would have been class members in accordance with the proposed class definition. Those putative class members have been kept informed on the major steps in the action and they are aware of the failed attempt to certify the action. News of these decisions was also posted on proposed Class Counsel’s websites so that other putative class members, if any, would have been made aware of the refusal of certification.
[10] If the action is discontinued, proposed Class Counsel will update their websites and also advise the known putative class members about the discontinuance.
[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.[^4]
[13] In the immediate case, there is no reason to refuse the Plaintiffs’ request to discontinue the action and there is no need to impose terms on the discontinuance. It is an appropriate case to grant consent to the discontinuance.
[14] Order accordingly. I have signed the Order.
Perell, J.
Released: October 5, 2021
COURT FILE NO.: CV-13-475701-00CP
DATE: 20211005
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ALBERT C. BATTEN and THE ESTATE OF MARGARET JANE HAMILTON, on behalf of her Estate Representative Wendy Nelson, and WENDY NELSON, personally
Plaintiffs
- and -
BOEHRINGER INGELHEIM (CANADA) LTD., BOEHRINGER INGELHEIM PHARMACEUTICALS, INC., BOEHRINGER INGELHEIM PHARMA GMBH & CO KG, and BOEHRINGER INGELHEIM INTERNATIONAL GMBH
Defendants
REASONS FOR DECISION
PERELL J.
Released: October 5, 2021
[^1]: S.O. 1992, c. 6.
[^2]: Batten v. Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 53
[^3]: Batten v. Boehringer Ingelheim (Canada) Ltd. 2017 ONSC 6098 (Div. Ct.).
[^4]: 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.).