Currie v. Davol Inc., 2022 ONSC 6272

COURT FILE NO.: CV-17-577209-00CP

DATE: 20221104

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TAMMY CURRIE

Plaintiff

• and –

DAVOL, INC., C.R. BARD, INC., BARD CANADA INC., GENZYME CORPORATION, and SANOFI S.A.

Defendants

Jill McCarney for the Plaintiff

Michael A. Eizenga and Ashley Paterson for the Defendants Davol Inc., C.R. Bard Inc. and Bard Canada Inc.

Byron Shaw for the Defendants Genzyme Corporation and Sanofi S.A.

HEARD: In writing

PERELL, J.

REASONS FOR DECISION

1Pursuant to the Class Proceedings Act, 1992,¹ on June 15, 2017, Tamie Currie commenced a proposed class action against Davol Inc., C.R. Bard Inc. and Bard Canada Inc. (the “Bard Defendants”) and against Genzyme Corporation and Sanofi S.A. (the “Genzyme Defendants”). It is a medical device products liability action with respect to Sepramesh products, a surgical mesh product that was used in hernia repairs.

[2]

The Motion

Ms. Currie brings a motion for an Order that:

a. the action be discontinued on a without costs and without prejudice basis as against Sanofi S.A.;

b. notice of the dismissal order under section 19 of the Class Proceedings Act, is not required;

c. in the event that the Plaintiff brings a motion to rejoin Sanofi S.A., the plaintiff shall move on notice by serving a copy of the notice of motion on the lawyer of record of Genzyme Corporation;

d. in the event that the court grants the plaintiff leave to rejoin Sanofi S.A. as a defendant, the amended Statement of Claim may be served on the lawyer of record of Genzyme Corporation; and

e. there be no costs of the motion.

3Sanofi S.A. and Genzyme Corporation consent to this motion, and the Bard Defendants take no position.

4At the time when the Plaintiff commenced her action, her lawyers understood that Sanofi S.A. had acquired the shares of Genzyme Corporation, and she joined Sanofi S.A. as the parent corporation of Genzyme Corporation, which held the Canadian medical device licence in the Sepramesh product.

5The Plaintiff served her motion for certification, and a case management conference was held on September 19, 2022.

6By the time of the case management conference, the Plaintiff had learned from counsel for Sanofi S.A. and Genyzme Corporation that Sanofi S.A. had acquired the shares of Genyzme in 2011, which was after Genzyme Corporation had terminated its Canadian medical device licence for its Sepramesh product. Sanofi S.A. itself was never a holder of a Canadian medical device licence for a Sepramesh product. Sanofi S.A. is incorporated and headquartered in France and does not reside in or carry on business in Ontario nor did it enter into any contracts connected with the subject matter of the proposed class action.

7I was advised at the case management conference that in light of this new information, the Plaintiff’s counsel was of the view that it was appropriate to discontinue the action as against Sanofi S.A. without prejudice to it being rejoined. I granted the Plaintiff leave to bring this motion in writing.

8Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, dismissal or settlement of a proceeding commenced under the Act. Section 29 states:

Discontinuance, abandonment and settlement

29. (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.

9A 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

[10]

Analysis

The case at bar is an appropriate case to grant leave to discontinue as against Sanofi S.A. without prejudice to rejoinder. Sanofi S.A. was initially joined as a party to the action reasonably and in good faith, but as presently advised, it appears that the Plaintiff’s case against Sanofi S.A. is baseless and that the court may not have jurisdiction over this foreign party. The action will continue as against the other defendants, and it is a waste in costs and an exposure to costs to continue the action as against Sanofi S.A. The putative Class Members would appear not to be prejudiced in these circumstances.

11When an action is discontinued as against one defendant but continues as against the others, it may be appropriate not to require notice to be given to the putative Class Members.³ With the qualification that notice of discontinuance should be placed on putative Class Counsel’s webpage for this proposed class action an order to this effect is appropriate in the circumstances of the immediate case.

12The Plaintiffs’ motion is granted. Order accordingly.

Perell, J.

Footnotes

1. 1S.O. 1992, c. 6.
2. 2Copland v. Johnson & Johnson Inc., 2022 ONSC 4595; Green v. The Hospital for Sick Children, 2021 ONSC 8237; Batten v. Boehringer Ingelheim, 2021 ONSC 6606; Allott v. Panasonic Corp., 2021 ONSC 5148; Bardoul v. Novartis Pharmaceuticals Canada Inc. 2021 ONSC 2261; Winter v. C.R. Bard, 2020 ONSC 3532; Cullaton v. MDG Newmarket Inc., 2019 ONSC 6432; Parker v. Pfizer Canada Inc, 2017 ONSC 2418; Naylor v. Coloplast Canada Corporation, 2016 ONSC 1294; Hughes v Liquor Control Board of Ontario, 2016 ONSC 867; Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc, 2012 ONSC 5288; Frank v. Farlie, Turner & Co, LLC, 2011 ONSC 7137; Hudson v Austin, 2010 ONSC 2789; Sollen v. Pfizer, 2008 ONCA 803, [2008] O.J. No 4787 (C.A.), aff'g 2008 CanLII 8618 (ON SC), [2008] O.J. No. 866 (S.C.J.); 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.).
3. 3Allott v. Panasonic Corp., 2021 ONSC 5148 at para 26; Cullaton v. MDG Newmarket Inc., 2019 ONSC 6432 at para 11; Cavanaugh v. Grenville Christian College, 2012 ONSC 2398 at paras 9-10.