Court File and Parties

COURT FILE NO.: CV-16-553048 DATE: 20211116 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CINDY LOU STRATHDEE, MARIO NUNZIATO, MATTHEW STRATHDEE, SHAEDA BEGUM FAROOQI-WILLISON, GERALD DOUGLAS WILLISON, THÉRÈSE BERNIER, deceased by her Estate Representative, MARILYNE BERNIER, JANET HEATON and BARRY HEATON Plaintiffs

• and –

JOHNSON & JOHNSON INC., JOHNSON & JOHNSON, AND JOHNSON & JOHNSON COMSUMER COMPANIES INC. Defendants

Proceeding under the Class Proceedings Act, 1992

FILE DIRECTION/REASONS FOR DECISION

Perell, J.

Counsel: Joel Rochon, Victoria Yang, Paul Miller, Golnaz Nayerahmadi and Annelis Thorsen-Cavers for the Plaintiffs Gordon McKee and Jessica Lam for the Defendants

Reasons for Decision

[1] This is a file direction to determine the sequencing of motions in this proposed class action. More precisely, the Defendants request that before the certification motion is argued, they be allowed to bring a motion to have the Plaintiffs’ action dismissed or stayed as an abuse of process or for delay.

[2] At the outset, it should be noted that the Defendants’ request is not made pursuant to s. 4.1 of the amended Class Proceedings Act.[^1] Section 4.1 applies to cases commenced after October 2020. That said, the notion of a possibly dispositive motion being heard in advance of the certification motion is and has been a relevant consideration in determining the sequencing of motions in class proceedings. Section 4.1 states:

Early resolution of issues

4.1 If, before the hearing of the motion for certification, a motion is made under the rules of court that may dispose of the proceeding in whole or in part, or narrow the issues to be determined or the evidence to be adduced in the proceeding, that motion shall be heard and disposed of before the motion for certification, unless the court orders that the two motions be heard together.

[3] On October 19, 2021, I made the following case management file direction:

[…] The Defendants have instructions to bring a motion to have the Plaintiffs’ action dismissed or stayed for delay or as an abuse of process. The Plaintiffs object to that motion proceeding before the certification motion. The Plaintiffs’ position is that the Defendants’ motion should be a cross-motion heard at the same time as the certification motion.

Having heard the parties’ submissions as to how this proposed class action should proceed, I decided that the appropriate way to proceed is to conditionally fix two timetables. The first timetable is for the Defendants’ Motion for a Stay or Dismissal. The second timetable is for the Certification Motion with a Cross-Motion by the Defendants to be heard at the seme time as the Certification Motion. Those timetables are set out below.

I direct the parties to exchange and to provide me with written submissions as to which timetable to adopt by Friday October 29, 2021. The parties may provide supplementary submissions by November 3, 2021. After reviewing the submissions, I anticipate being able to select the timetable for this action by the end of November 2021.

[Conditional] TIMETABLE FOR DEFENDANTS’ MOTION TO DISMISS/STAY

Defendants’ motion material By December 17, 2021

Plaintiffs’ responding material By January 14, 2022

Defendants’ reply material, if any, By January 31, 2022

Cross-examinations, if any, Completed by end of February 2022

Defendants’ factum By March 21, 2022

Plaintiffs’ factum By April 8, 2022

Defendants’ reply factum By April 18, 2022

Hearing date (virtual hearing) (1 day) May 2, 2022

[Conditional] PLAINTIFFS’ CERTIFICATION MOTION DEFENDANTS’ CROSS MOTION

Plaintiffs’ Motion Material Already delivered

Respondents’ Cross Motion and Responding Motion Material By April 30, 2022

Plaintiffs’ Reply Material By June 30, 2022

Cross-examinations Completed by August 31, 2022

Plaintiff’s Certification Factum By September 15, 2022

Defendants’ Certification Factum and Stay Factum By October 15, 2022

Plaintiffs’ Reply Factum By November 7, 2022

Defendants’ Reply Factum to Stay Motion By November 21, 2022

Certification and Stay Motions (virtual hearing) (3 days) November 30- December 2, 2022

[4] The premise of the Defendants’ abuse of process motion is that it is an abuse of process that the Plaintiffs are suing the Defendants in a national class action in Ontario when the Defendants are already being sued for the very same alleged wrongdoing in a national class action in British Columbia and a regional class action in Québec and in another national class action in Alberta. The theory of the Defendants’ alternative motion to have the action dismissed for delay is that the Ontario action was commenced in May 2016, and it was not until September 2021, 65 months later, that the Plaintiffs served their certification motion or even contacted the Defendants about their languishing class proceeding.

[5] The background that gives rise to the Defendants’ request to schedule a motion to dismiss/stay the proposed class action before the certification motion is as follows:

a. The Plaintiffs’ Statement of Claim was issued in May 2016. The Plaintiffs sue on behalf of a class of Canadian citizens that purchased or used the Defendants’ well-known baby powder. The Plaintiffs allege that the baby powder contained talc, a carcinogen that when used in the perineal region can cause ovarian cancer. Class Counsel are the consortium of Rochon Genova LLP and Howie, Sacks & Henry LLP.

b. In the United States, there is multi-district litigation against some of the Defendants, with respect to the alleged harm caused by the Defendants’ baby powder product. It shall become pertinent to note that Dr. Daniel L. Clarke-Pearson (a gynecological oncologist), Dr. Jack Siemiatycki (an epidemiologist), and Dr. Laura Plunkett (a pharmacologist, toxicologist, and regulatory specialist), provided expert advice and testimony in the American proceedings.

c. Around the same time as the action was commenced in Ontario, in an action commenced in British Columbia in which the Merchant Law Group is the Class Counsel, Linda Williamson sued the Defendants on behalf of a class of Canadian citizens that purchased or used the Defendants’ baby powder. The Plaintiffs in the British Columbia action allege that the baby powder contained talc, a carcinogen that when used in the perineal region can cause ovarian cancer.

d. Around the same time as the action was commenced in Ontario, in an action commenced in Québec in which the Merchant Law Group is the Class Counsel, Rosemary Kramer sued the Defendants on behalf of a class of Québec citizens and their family members that purchased or used the Defendants’ baby powder. The Québec plaintiffs allege that the Defendants’ baby powder contained talc, a carcinogen that when used in the perineal region can cause ovarian cancer. The Québec action was authorized in 2018.[^2]

e. More recently, in an action commenced in Alberta, in which the Guardian Law Group is the Class Counsel, Diane DiSanto sued the Defendants on behalf of a class of Canadian citizens who purchased or used the Defendants’ baby powder.[^3] The Plaintiffs allege that the baby powder contained talc, a carcinogen that when used in the perineal region can cause ovarian cancer.

f. After the Ontario action was commenced in May 2016, it languished until the fall of 2021. The Plaintiffs did nothing to move it along in Ontario and they did not communicate with the Defendants. Why the action was dormant in Ontario is something that I shall learn more about in the context of the Defendants’ motion to dismiss or stay the Ontario action for delay.

g. Likewise, however, it may be noted that the Defendants did nothing to move the Ontario action forward for the past 65 months. Perhaps, the Defendants were preoccupied by the actions in British Columbia, Alberta, and Québec. Perhaps, the Defendants were content to let the sleeping Ontario dog lie, which is to say, perhaps, the Defendants ignored the problem of the Ontario action because trying to deal with it might cause an even more difficult situation. Perhaps, the Defendants thought that Class Counsel in the Ontario action were no longer interested in pursuing the national claim in light of what was happening elsewhere in Canada.

h. Once again, why the action in Ontario was languishing without any push for a stay or dismissal by the Defendants is something that I shall learn more about in the context of the Defendants’ motion to dismiss or stay the Ontario action.

i. Meanwhile, while all quiet on the Eastern front, on November 17, 2020, in the British Columbia proposed national class action, Justice Armstrong adjourned the plaintiff’s application for certification. In adjourning the certification motion, Justice Armstrong granted the plaintiff leave to cure the evidentiary gaps and deficiencies in the record and to return for a rehearing of the certification motion.[^4] In this regard, the plaintiff had failed to adduce evidence to support: (a) a methodology for proving general causation of injury from talc; and (b) a duty to warn claim against a co-defendant.

j. On September 23, 2021, back in Ontario, the Defendants advised the Plaintiffs that they intended to bring a motion to stay the action on the basis of abuse of process or to dismiss it for delay.

k. In bringing a motion to stay/dismiss the Ontario action, the Defendants intend to comply with the CBA Protocol and to provide a copy of their notice of motion for a stay/dismissal to the judges and counsel in the British Columbia, Alberta, and Québec actions.

l. On September 30, 2021, the Plaintiffs delivered their certification motion record, comprised of: (a) affidavits of the representative plaintiffs; and (b) reports from Drs. Clarke-Pearson, Siemiatycki, and Plunkett.

m. On October 19, 2021, there was a case management conference in the Ontario action, and I made the endorsement set out above.

[6] The Defendants advance five reasons why their stay/dismissal motion should precede the certification motion:

a. First, the stay/dismissal motion may be dispositive and this would save the parties the far more expensive certification motion in a very serious products liability/pharmaceutical class action in which there will be extensive and expensive gynecological, oncological, epidemiological, pharmacological, toxicological, and regulatory specialist expert evidence.

b. Second, and related to the first reason, in contrast to the complex and scientific evidence-heavy certification motion, the stay/dismissal motion is narrow and focused on just: (a) the procedural history of the national claim in Ontario; (b) the contrasting procedural history of the British Columbia action; (c) whether the Ontario action is duplicative of the actions in Québec and British Columbia; and (d) whether allowing the Ontario action to continue would serve a legitimate purpose.

c. Third, and related to the first and second reasons, having the stay/dismissal motion precede the certification motion, will spare the Defendants the expense of responding to the merits of the three extensive expert reports of Drs. Clarke-Pearson, Siemiatycki, and Plunkett with responding expert evidence and cross-examinations of all the experts.

d. Fourth, allowing the Defendants’ motion to be heard first will allow the plaintiffs in British Columbia, Alberta, and Québec, to consider whether and how to participate in the Ontario action and to take any necessary steps to do so.

e. Fifth, having regard to the laggardly pace of the Ontario action, the Ontario Plaintiffs cannot credibly argue that there will be any prejudice or undue delay if the Defendants’ stay/dismissal motion precedes the certification motion.

f. Sixth, deferring the Defendants’ motion to dismiss/stay would be unfair and prejudicial to the Defendants because the premise of the motion is that no step should be permitted in an action that is an abuse of process or that has been unduly delayed to the prejudice of the defendant. Delaying the stay/dismissal motion is therefore prejudicial and would render the defendants’ abuse of process and undue delay arguments moot.

[7] The court may - in appropriate cases - dismiss/stay a proposed class action before a certification motion or it may hear the motion to stay or dismiss contemporaneously with the certification motion.[^5]

[8] In Cannon v. Funds for Canada Foundation,[^6] Justice Strathy, as he then was, set out some of the factors a court might consider in deciding how to sequence the motions in a proposed class action; namely: (a) whether the motion will dispose of the entire proceeding or will substantially narrow the issues to be determined; (b) the likelihood of delays and costs associated with the motion; (c) whether the outcome of the motion will promote settlement; (d) whether the motion could give rise to interlocutory appeals and delays that would affect certification; (e) the interests of economy and judicial efficiency; and (f) whether scheduling the motion in advance of certification would promote the “fair and efficient determination” of the proceeding.

[9] Having regard to the non-exhaustive list of factors set out by Justice Strathy, I am not convinced by the Defendants’ arguments that this is an appropriate case to have the stay/dismissal motion precede the certification motion.

[10] Although there are six legs to it, the Defendants’ essential argument is that they should be spared the expense of the some-basis-in-fact aspects of a certification motion that would require the Defendants to take on the Plaintiffs’ experts in a case that has been languishing for five years and may be an abuse of process because it overlaps with the similar class actions in British Columbia, Alberta, and Québec.

[11] For present purposes, I cannot prejudge the merits of the abuse of process motion or the dismissal for delay argument, but if the Defendants’ motion is heard along with the certification motion and assuming that the Defendants are ultimately successful with their arguments, then the Defendants will recover these wasted legal expenses from the Plaintiffs. Conversely, if the Defendants are unsuccessful on their stay/dismissal motion but were successful in resisting certification, then, once again, they will recover these expenses and the Divisional Court will have a complete record for the likely inevitable appeal from a refusal to certify the action based on the stay/dismissal motion or on the certification motion. Judicial economy suggests that having the motions heard together is preferable.

[12] Further, without prejudging the merits of the abuse of process motion or the dismissal for delay argument, but assuming that the Defendants are ultimately unsuccessful on these arguments, and the certification motion is not simultaneously heard, then there would be the delay of an appeal of the dismissal of the stay/dismissal motion and subject to the outcome of the appeal, then the hearing of the certification motion will be delayed.

[13] The potential of being spared the expense of the some-basis-in-fact aspects of a certification motion for expert witnesses is not worth the reality of the efficiencies of having one decision and a complete record to run the gauntlet of the appeals from the stay/dismissal motion and the certification motion.

[14] There is little merit to the Defendants’ circular tautological argument that their motion to have the action dismissed as an abuse of process will become moot or will be prejudiced by having it heard at the same time as the certification motion. Without prejudging that motion, I can say now, that if the stay/dismissal motion succeeds, then the action will be dismissed as an abuse of process. There is nothing moot about the motion in allowing it to proceed simultaneously with the certification motion.

[15] From the court’s perspective, I perceive that it is unlikely that the Defendants will be able to keep the scope of their stay/dismissal motion as narrow as they envision. I note that the Defendants intend to comply with the CBA Protocol and to provide a copy of their notice of motion for a stay/dismissal to the judges and counsel in the British Columbia, Québec, and Alberta actions. If the Plaintiffs and Class Counsel of these actions do become involved in the Ontario action, it is desirable that this be done at the certification motion, in the context of the preferable procedure analysis which may resonate with issues connected with the Defendants’ abuse of process argument. The contours of multiple national class actions and the avoidance of a multiplicity of actions is not a simple matter given the sovereignty of each province.

[16] I am not prejudging the Defendants’ abuse of process or dismissal for delay motions, but they are certainly not slam dunks or breakaway on an empty-net motions, and as I have noted above, both sides have some legal warts to contend with in explaining why the Ontario action has languished for so long. In this regard, I have already noted that although the Plaintiffs may have languished in advancing the Ontario class action, the Defendants have languished in advancing their argument that the Ontario action is an abuse of process because of its duplication with the British Columbia action.

[17] The parties referred me to sequencing decisions in Ontario[^7] and in British Columbia,[^8] but for present purposes, it is necessary to discuss only Justice Belobaba’s decision in DALI 675 Pension Fund v. SNC Lavalin.[^9]

[18] DALI 675 Pension Fund v. SNC Lavalin is not a sequencing case; rather, it is a case about abuse of process motions, i.e. it is a case about the type of motion that the Defendants in the immediate case seek to have heard before the certification motion.

[19] In DALI 675 Pension Fund v. SNC Lavalin, the Defendant SNC Lavalin was sued in national securities misrepresentation class actions in Québec and in Ontario. The Plaintiffs and the Class Counsel were different, and Class Counsel were not operating co-operatively. The Québec Plaintiffs moved to stay the Ontario action as an abuse of process. SNC Lavalin also moved to stay the Ontario action. The argument of both moving parties was that the Ontario action was abusive because it was duplicative of the Québec action and was brought in Ontario for no legitimate purpose. The Québec Plaintiffs argued that the Canadian Class Members would be protected in the Québec action. SNC Lavalin added that parallel and overlapping class actions in two separate provinces will result in a waste of time, effort and resources, and would be prejudicial to SNC Lavalin, the individual defendants, and SNC Lavalin’s continuing shareholders.

[20] Justice Belobaba dismissed the stay motion. Referring to the Manitoba Court of Appeal decision in Hafichuk-Walkin v. BCE Inc.,[^10] Justice Belobaba reasoned that parallel rival class actions could be but are not per se an abuse of process. A rival parallel national class action could be an abuse of process where it was duplicative AND where it served no legitimate purpose. At paragraph 36, Justice Belobaba summarized his reasoning as follows:

36. To summarize my reasons thus far. If two proposed national class actions are filed by different law firms in different jurisdictions, the two class counsel firms should ideally join forces and advance a single national proceeding. If this is not feasible, a motion to stay one of the proceedings as an abuse of process is certainly possible, provided there is compelling evidence that one of the proceedings was duplicative when filed and was filed for no legitimate purpose. However, if there is no abuse of process, and the defendant chooses not to bring a forum non conveniens motion, the two proceedings will continue in parallel. This is not a troubling outcome. As already noted, parallel proceedings are a common feature of modern class action litigation. At some point, however, a court may have to decide which of the two actions should be preferred.

[21] Returning to the immediate case, it appears that the British Columbia and the Ontario actions are duplicative; however, it remains to be determined whether one or the other was filed for no legitimate purpose, which brings me back to Justice Belobaba’s comments that suggest that the best time to resolve the abuse of process arguments would be at the certification motion as a part of the preferable procedure analysis and as a part of the provisions of the legislation that address multi-jurisdictional considerations. Thus, Justice Belobaba stated at paragraph 42 of his judgment:

42. More specifically, at the certification motion, this court could well have information about the results of the leave and certification motions in Québec and could fashion an outcome in Ontario that would truly be in the best interests of the national class. This could include staying the Ontario action altogether or allowing it to proceed further, possibly with a modified class definition or a revised list of common issues. Put simply, whether or not the Ontario action is destined to be certified, which of course remains to be seen, the best interests of the national class will be better determined at the certification stage where the court will have the benefit of more complete information.

[22] As already noted above, it seems likely that the Ontario court may hear from the Plaintiffs and the Class Counsel from the British Columbia, Alberta, and Québec actions and if so, their representations are best heard as a part of the certification motion.

[23] I appreciate that it might be possible in a given case to separate pure abuse of process arguments from preferable procedure arguments, but the immediate case does not appear to me to be one of those cases where this separation would be feasible, efficient, or desirable.

[24] I also appreciate the undesirability of litigation by installments, but class actions are inherently bifurcated proceedings because the certification motion is not a hearing on the merits and depending on the comprehensiveness of the certified common issues, there may be the bifurcation of the common issues trials from the individual issues trials of the Class Members. Thus, my decision in the immediate case that there be a simultaneous hearing of the Defendants’ and the Plaintiffs’ respective motions, is not driven by the Plaintiffs’ arguments that rely on focusing on the certification motion as the first major motion in a class proceeding. My decision should not be taken to be a categorical ruling that potentially dispositive motions should not precede the certification motion. Rather, it is a principled decision that the immediate case is one in which it is appropriate to have the potentially dispositive motion heard at the same time as the certification motion.

[25] For what it is worth, my decision would not have been different had the case at bar been governed by s. 4.1 of the amended Class Proceedings Act, 1992. It may be observed that all that section does is mandate that a dispositive motion be heard first, “unless the court orders otherwise.” Nothing much is likely to change in the future because of s. 4.1 other than the rhetorical temperature of the case management conference to schedule motions.

[26] For the above reasons, the timetable that shall govern is the timetable for the Plaintiffs’ certification motion and the Defendants’ cross-motion.

Released: November 16, 2021

[^1]: S.O. 1992, c. 6. [^2]: Kramar c. Johnson, 2018 QCCS 1846, aff’d Valeant Pharmaceuticals International Inc. c. Kramar, 2018 QCCA 1500. [^3]: DiSanto v Johnson & Johnson et. al., court file no. 1901-11748. [^4]: Williamson v Johnson & Johnson, 2020 BCSC 1746. [^5]: Fantov v. Canada Bread Company, Ltd., 2019 BCCA 447; DALI 675 Pension Fund v. SNC Lavalin, 2019 ONSC 6512; Soderstrom v Hoffman-La Roche Ltd., [2008] O.J. No. 140 (S.C.J.). [^6]: 2010 ONSC 146. [^7]: Lyons v. TD Bank, 2020 ONSC 7255; Gilani v. BMO Investments Inc., 2020 ONSC 6838; Singh v. RBC Insurance Agency Ltd., 2020 ONSC 182; Austin v. Bell Canada, 2018 ONSC 4018; Wood v. CTS of Canada Co., 2015 ONSC 6085; Cecile v. Retrofoam of Canada Inc., 2010 ONSC 3457; Fairview Donut Inc. v. TDL Group Corp., 2010 ONSC 2845; Soderstrom v Hoffman-La Roche Ltd., [2008] O.J. No. 140 (S.C.J.). [^8]: British Columbia v. The Jean Coutu Group (PJC) Inc., 2021 BCCA 219; Forster v. Monsanto Company, 2020 BCSC 1376; Fantov v. Canada Bread Company, Limited, 2019 BCCA 447. [^9]: 2019 ONSC 6512. [^10]: 2016 MBCA 32.