COURT FILE NO.: CV-21-804
DATE: 2022/10/17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Arianna Fernandez Leon and Bolelsaw Brzozowski
AND:
Dr. George A. Vilos and Bayer Inc.
BEFORE: Justice A. K. Mitchell
COUNSEL: J. Drennan, for the responding parties/plaintiffs
A. Puchta and W. McNamara, for the moving party/defendant, Bayer Inc.
HEARD: September 7, 2022 via video conference
ENDORSEMENT
Overview of the Motion
[1] The defendant, Bayer Inc. (“Bayer”), brings this motion seeking an order striking the statement of claim without leave to amend. Alternatively, Bayer asks that paragraph 41 of the statement of claim be struck with leave to amend and if necessary for an order extending the time for service and filing of its statement of defence until at least 30 days after the later of the decision on this motion, or the delivery of a further amended statement of claim.
[2] The plaintiffs take the position that the claim, as pleaded, discloses a sufficient cause of action and that material facts have been pleaded and the motion should, therefore, be dismissed. Alternatively, the plaintiffs seek an order granting them leave to amend their statement of claim.
Background
[3] The plaintiffs allege that the plaintiff, Arianna Fernandez Leon (“Ms. Fernandez Leon”), suffered complications following surgery to insert a permanent contraceptive device (the “device”). She commenced this claim against Dr. George A. Vilos ( “Dr. Vilos”) alleging he implanted the device without her consent, and against Bayer alleging product liability for the manufacture, design and distribution of the device.
[4] The claim against Dr. Vilos was abandoned with only the product liability claims against Bayer remaining.
[5] The plaintiffs allege that Ms. Fernandez Leon is entitled to general damages, special damages and future lost earnings totaling $1.4 million as a result of Bayer’s conduct. The plaintiffs also allege that the plaintiff, Bolelsaw Brzozowski, is entitled to damages against Bayer under the Family Law Act.
[6] The plaintiff’s claim against Bayer is set out in a single paragraph in the statement of claim as follows:
- As to the negligence of Bayer Inc.:
(a) The design of the Essure device was defective;
(b) The manufacture of the Essure device was defective;
(c) They failed to maintain adequate quality control of the subject product;
(d) They failed to recall, or otherwise correct the defects;
(e) They knowingly designed, manufactured, distributed, marketed and sold a product that they knew, or ought to have known was defective;
(f) Such further and other negligence which is within the knowledge of Bayer Inc.;
(g) They hired incompetent servants, agents or employees.
[7] The single factual allegation relating to Bayer contained in the claim reads as follows:
- The defendant, Bayer Inc. is a corporation, incorporated pursuant to the laws of Ontario and at all material times was the manufacturer of the birth control, Essure micro inserts … implanted in the Plaintiff Arianna.
[8] Bayer has not delivered a statement of defence.
Positions of the Parties
[9] Bayer submits that paragraph 41 consists solely of bare allegations and conclusory statements. Bayer argues that the allegations and statements contained in paragraph 41 relate to purported defects without identifying them, and simply list and conflate various causes of action without pleading their constituent elements, or providing the most basic material facts to support them.
[10] Bayer submits that the claim against Bayer violates the rules of proper pleading under the Rules of Civil Procedure in that it fails to delineate the case which Bayer has to meet leaving Bayer “in the dark” as to what specific claims are being made against it and what material facts underpin those claims.
[11] In response, the plaintiffs submit that Bayer as manufacturer of the device owed a duty of care for product liability. The plaintiffs argue that courts may infer a breach of the standard of care where a defect exists and causes subsequent damage to a plaintiff. The plaintiffs argue that proof of the presence of a defect and that the defect resulted in injury to the plaintiffs permits the trial judge to draw an inference of negligence.
Analysis
[12] The purpose of a pleading is to define the issues, enable the parties to prepare for trial, and facilitate the just and efficient conduct of the litigation.[^1] It is a fundamental principle of law that a defendant is entitled to know the case it must meet.[^2]
[13] As a matter of first principles, rule 25.06(1) requires that a statement of claim contain a concise statement of the material facts on which the party relies for the claim, but not the evidence by which those facts are to be proved.
[14] Subrule 21.01(1)(b) provides that a defendant may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action. Similarly, rule 25.11 permits the court to strike out or expunge all or part of the pleading, with or without leave to amend, on the ground, among others, that the pleading is an abuse of the process of the court.
[15] Guidance on the use of these remedies to address a deficient pleading was provided in Norman v. Thunder Bay Regional Health Sciences Centre[^3] where the court writes at paras. 44 and 45:
44 The extent to which material facts must be pleaded, and the consequences of a failure to plead those material facts, are set out by Cameron J. in Balanyk v. University of Toronto, 1999 CanLII 14918 (ON SC), [1999] O. J. No. 2162 (Ont. S.C.J.) at para. 29:
The plaintiff must plead all the material facts on which it relies and all of the facts which it must prove to establish a cause of action. If any fact material to the establishment of a cause of action is omitted, the statement of claim is bad and the remedy is a motion to strike the pleadings, not a motion for particulars.
45 If at the time of pleading, a party does not have knowledge of the facts that support a cause of action, then it is inappropriate to make those allegations. It is not sufficient for a party to allege that the material facts are peculiarly within the knowledge of the opposing party or that it will determine facts as a result of examinations for discovery or in some other way that will support the allegations (Region Plaza Inc. v. Hamilton–Wentworth (Regional Municipality), 1990 CanLII 6761 (ON SC), 1990 O.J. No. 589 (Ont. H.C.) Rosenberg J. at para. 7.)
[16] A statement of claim may also be defective because it fails to allege the necessary elements of the claim that, if properly pleaded, would constitute a reasonable cause of action.[^4]
[17] The claim against Bayer is based in product liability which is a claim based in negligence. The elements of a negligence claim consist of:
(i) the existence of a duty of care owed by the defendant to the plaintiff to take reasonable care in the circumstances;
(ii) the defendant’s conduct breached the applicable standard of care; and
(iii) the plaintiff sustained compensable loss or damage as a result of the defendant’s breach.
[18] Here, the plaintiffs have failed to plead that a duty of care was owed by Bayer, or that Bayer breached the duty owed. In their factum responding to this motion the plaintiffs argue it may be inferred that, as the manufacturer of the device, Bayer owed the plaintiff a duty of care. However, this allegation does not appear in the statement of claim. Moreover, the statement of claim contains no material facts in support of the allegation that Bayer breached its duty as manufacturer of the device which was implanted in Ms. Fernandez Leon.
[19] A distinct body of case law has developed with respect to motions to strike in the context of product liability claims. I will consider the adequacy of the allegations against Bayer within the context of this jurisprudence.
[20] Paragraph 41 of the statement of claim contains a number of conclusory allegations without any material facts pleaded to support such conclusions. Specifically, the plaintiffs allege:
(i) the design of the device was defective. This is a conclusion. No material facts are pleaded identifying Bayer as the designer of the device[^5] and, if Bayer is the designer, explaining what aspects of the design rendered the device defective.[^6]
(ii) the manufacture of the device was defective. This is a conclusion. No material facts have been pleaded explaining what aspect of Bayer’s manufacturing process rendered the device defective.[^7]
(iii) Bayer failed to maintain adequate quality control of the device. This is a conclusion. No material facts have been pleaded describing what aspects of Bayer’s quality control systems/processes were inadequate and fell below the standard of care.
(iv) Bayer failed to recall or otherwise correct the defects. This allegation presumes the device is defective which gives rise to a duty to recall and a duty to correct the defect. Again, no material facts have been pleaded describing the manner in which the device is defective which in turn would give rise to a duty to recall or remedy such defect.
(v) Bayer knowingly designed, manufactured, distributed, marketed and sold a product that they knew, or ought to have known, was defective. Without pleading material facts describing the nature of the design and manufacturing defects, knowledge of such defects cannot be implied.[^8]
(vi) Bayer hired incompetent servants, agents or employees. Without material facts pleaded to support the allegations of negligent design and/or manufacture, this allegation, on its own, cannot support a claim in negligence against Bayer.
[21] As already noted in these reasons, a plaintiff cannot base their claim on speculation and conjecture and hope that the discovery process will yield the evidence needed to support their claim.[^9]
[22] As an aside, if one compares the detailed manner in which the professional negligence claim against Dr. Vilos was pleaded with the general and vague manner in which the product liability claim against Bayer was pleaded, one is left to wonder why the claim was discontinued against Dr. Vilos and not Bayer.
[23] I find that the statement of claim, as pleaded, fails to put Bayer on notice of the case it must meet and denies Bayer the ability to defend this claim and, therefore, should be struck.
[24] Having found the claim should be struck, I must now consider whether leave to amend should be granted.
[25] The statement of claim in this action was issued on May 3, 2021. A notice of discontinuance of action against Dr. Vilos was issued on September 24, 2021. No further steps in the action were taken by the plaintiffs until they responded to this motion originally returnable August 5, 2022. Having been put on notice of the deficiencies in their claim, the plaintiffs did not move to amend their claim nor did they include a draft amended statement of claim in their responding materials to this motion.
[26] I am not persuaded that the substantive foundational deficiencies in the plaintiffs’ claim may be cured by simply amending the claim. Relying on the reasoning in Barber v. Goertz,[^10] “[i]t is reasonable to assume that if material facts existed that would support” a cause of action against Bayer “those facts would have been specifically pleaded”. In these circumstances, there is no benefit in permitting the plaintiffs to try and find some tenable basis in fact for a claim against Bayer when none has been found by them to date.[^11]
[27] I am unable to accede the plaintiffs’ request that they be permitted to amend their claim and allow the action to proceed to discovery with the caveat that should their claim remain deficient, Bayer may then move for summary judgment to dismiss their claim. Proceeding in such a fashion would only serve to significantly increase the cost of these proceedings to all parties, including the plaintiffs, in circumstances where I fear the outcome will remain the same.
[28] The plaintiffs argue that if the motion is granted, they will be denied justice. However, this may very well be a case of discoverability in which case the plaintiffs will be merely delayed justice. Should the plaintiffs discover the material facts necessary to support a claim against Bayer in negligence, it is open to them to commence a fresh action properly pleaded.
Disposition
[29] Motion granted. The statement of claim is struck, in its entirety, without leave to amend.
Costs of the Motion
[30] Bayer was successful on the motion and, therefore, is entitled to its costs. The parties filed cost submissions/costs outlines.
[31] Bayer seeks its partial indemnity fees (exclusive of HST) in the reduced amount of $20,000[^12] and its disbursements inclusive of HST in the amount of $1,393.60. The total amount claimed by Bayer inclusive of disbursements and HST is $23,993.60. Counsel for Bayer spent a total of 74.4 hours preparing and attending on the motion. Ms. Puchta was lead counsel for Bayer with four years’ experience. Her partial indemnity hourly rate is $474.
[32] By comparison, plaintiffs’ counsel filed a costs outline wherein they claimed, in the event of success, fees of $9,650 and HST on fees of $1254.50 for a total of $10,904.50. A total of 24.5 hours was spent by counsel responding to the motion. Ms. Drennan was lead counsel on the motion and spent 14 hours. Ms. Drennan has 30 years’ experience and charges $600 per hour.
[33] I have considered the factors in rule 57.01. I note that the motion involved issues of significant importance for both parties. However, the positive impact on Bayer of its success on the motion pales in comparison to the negative impact on the plaintiffs of their corresponding lack of success.
[34] Notwithstanding the disparity in experience and the hourly rates of lead counsel, I find that the time spent by Bayer’s counsel was excessive. The motion was argued over two hours. The materials on the motion consisted of the pleadings (i.e., the statement of claim and notice of discontinuance). Quite appropriately, no evidence was filed. Disposition of the motion required only a legal analysis. There were no factual issues.
[35] Any cost award must be fair and reasonable in the circumstances. I find that Bayer is entitled to their costs of the motion fixed in the amount of $12,500 inclusive of disbursements and HST.
“Justice A.K. Mitchell”
Justice A.K. Mitchell
Released: October 17, 2022
[^1]: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (“Imperial Tobacco”) at paras. 19-20. [^2]: Crestohl v. B’Nai B’Rith Canada, [2009] O.J. No. 3163 (ONSC) at para. 13; Cequeira v. Ontario, 2010 ONSC 3954 at para. 14; Farrell v. Salvation Army, 2011 ONSC 317 at para. 7. [^3]: 2015 ONSC 3252 (“Thunder Bay”). [^4]: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), 1998 CarswellOnt 3202 (C.A.) at para. 10. [^5]: See Martin v. AstraZeneca Pharmaceuticals PLC, 2012 ONSC 2744 (“Martin”) and Hughes v. Sunbeam Corp. (Canada), 2000 CanLII 22685 (ONSC), var’d on other grounds, 2002 CanLII 45051 (ONCA) where the claims were struck based on a similar deficiency. [^6]: See Kuiper v. Cook (Canada) Inc., 2018 ONSC 6487 at paras. 125–132, rev’d on other grounds 2020 ONSC 128 (Div. Ct.) where Perrell J. found no reasonable cause of action existed in relation to the defective design allegation because the plaintiffs failed to identify the alleged design defect. [^7]: See Martin, supra, where the claim was struck on the basis of these same deficiencies. [^8]: The failure to plead that Bayer was involved in the distribution, marketing and sale of the device and the failure to plead material facts to the effect that the propensity of the device to injure outweighed the value of its use, are fatal to an allegation of negligent distribution, marketing and sale: see Martin, supra, at para. 111 and Harrington v. Dow Corning Corp., 2000 BCCA 605 at paras. 42–43, 45, leave to appeal ref’d, [2001] S.C.C.A. No. 21. [^9]: Thunder Bay, supra, at para. 44. [^10]: 2021 ONSC 3698 (“Barber”) at paras. 36–39. [^11]: Barber, ibid., at para. 40. [^12]: Total partial indemnity costs = $26,073.