Court File and Parties

COURT FILE NO.: CV-11-437880-00CP

DATE: 20221124

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Barbara Adkin et al.

AND:

Janssen-Ortho Inc., et al.

BEFORE: J.T. Akbarali J.

COUNSEL: Jane Ann Summers and Evatt F.A. Merchant, for the plaintiffs

S. Gordon McKee, Jessica Lam and Alysha Li, for the defendants Janssen-Ortho Inc. and Johnson & Johnson Inc.

William McNamara, Grant Worden and Morag McGreevey, for the defendants Bayer Inc., Bayer Corporation, Bayer Healthcare Pharmaceuticals Inc., and Bayer Healthcare LLC

Jonathan S. McLean, for the defendant Ranbaxy Pharmaceuticals Canada Inc.

HEARD: In writing

ENDORSEMENT

[1] The defendants move, on consent, for an order dismissing this putative class action for delay under s. 29.1 of the Class Proceedings Act, 1992, S.O. 1992, c. 6.

[2] The action was commenced on October 24, 2011. Not all parties were served. The parties who were served all filed Notices of Intent to Defend, with the last of these being filed on May 4, 2012.

[3] The action has been dormant since that time. The plaintiffs have never served or filed a complete motion record for certification. No timetable for the certification motion or any other step has been proposed by the plaintiffs, agreed to, filed with, or ordered by the court. The plaintiffs have not even asked the court to establish a timetable for completion of one or more other steps required to advance the proceeding.

[4] The defendants rely on s. 29.1 of the CPA. It provides for mandatory dismissal of class actions commenced by plaintiffs for delay under certain circumstances:

29.1 (1) The court shall, on motion, dismiss for delay a proceeding commenced under section 2 unless, by the first anniversary of the day on which the proceeding was commenced,

(a) the representative plaintiff has filed a final and complete motion record in the motion for certification;

(b) the parties have agreed in writing to a timetable for service of the representative plaintiff’s motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding, and have filed the timetable with the court;

(c) the court has established a timetable for service of the representative plaintiff’s motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding; or

(d) any other steps, occurrences or circumstances specified by the regulations have taken place.

[5] Section 29.1 of the CPA was considered by Belobaba J. in Bourque v. Insight Productions, 2022 ONSC 174. In that decision, Belobaba J. noted that the statute is clear about the requirements that must be met by the plaintiff to avoid mandatory dismissal under s. 29.1: at para.7.

[6] Justice Belobaba found that, while the CPA is remedial legislation and should be given a generous, broad, liberal and purposive interpretation, the explicit purpose of s. 29.1 is “the timely advance of class action litigation (for the benefit of not just the defendants but also the putative class)”: at para. 16. Justice Belobaba also found that s. 12 of the CPA, which confers on the court “wide-ranging case management powers respecting the conduct of a class proceeding ‘to ensure its fair and expeditious determination’” did not assist the plaintiff in that case. Section 12 cannot override the mandatory provisions in the CPA, such as s. 29.1: para. 17.

[7] I adopted Belobaba J.’s analysis of s. 29.1 in LeBlanc et al. v. The Attorney General of Canada et al., 2022 ONSC 3257, at paras. 13-15.

[8] Pursuant to s. 39(2) of the CPA, class proceedings that were commenced before s. 29.1 came into force, as this one was, are deemed to have been commenced on the day the new provisions came into force. That day was October 1, 2020; the one-year deadline for this action passed on October 1, 2021. Thus, unless one of the steps outlined in s. 29.1(1) has occurred by October 1, 2021, a class proceeding commenced before October 1, 2020 shall be dismissed for delay. As there are no regulations prescribing any “steps, occurrences or circumstances” for the purpose of s. 29.1(1)(d), the focus on this motion is whether any of the steps set out in paras. (a)-(c) were taken by October 1, 2021.

[9] As I have already noted above, the evidence indicates that no such steps have been taken. I am thus required, by s. 29.1, to dismiss this action for delay.

[10] When an action is dismissed for delay under s. 29.1(1), the solicitor for the representative plaintiff is required, by virtue of s. 29.1(2) to give notice of the dismissal by:

a. Publishing the notice and a copy of the order on the website of the solicitor or of the law firm or other entity through which the solicitor practices law;

b. Sending the notice and a copy of the order to every class member who has contacted the solicitor to express an interest in the proceed; and

c. Taking any other steps to give notice that the court may specify.

[11] This proceeding has not received any significant media attention of which the moving parties are aware. It has been dormant for over a decade. The record supports a conclusion that the notice requirements set out in s. 29.1(2)(a) and (b) are sufficient.

[12] Pursuant to s. 29.1(4), the solicitor for the representative plaintiff shall bear the costs of giving notice under subsection (2) and shall not attempt to recoup any portion of the costs from the class or any class member, or from the defendant. Accordingly, the costs of the notice required to be given in this case shall be borne by plaintiffs’ counsel.

[13] No costs of this motion are sought, and none are ordered.

[14] Order to go in accordance with the draft I have signed.

J.T. Akbarali J.

Date: November 24, 2022