Court File and Parties

COURT FILE NO.: CV-21-00668785-00CP DATE: 2023-02-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBIN DUNHAM, Plaintiff – and – SYNGENTA AG, SYNGENTA CROP PROTECTION LLC, SYNGENTA CANADA INC., and SYNGENTA CROP PROTECTION AG, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Tyler Planeta, Daniel Bach, and Katherine Shapiro, for the Plaintiff Stephanie Sugar, Eric Block, and Kate Martini, for the Defendants

HEARD: February 3, 2023

MOTION TO DISCONTINUE

[1] This is one of three proposed class actions across the country containing claims in respect of illnesses allegedly caused by the chemical, paraquat, which is the active ingredient in the herbicide Gramoxone. The other two actions are: Gionet v. Syngenta, Court File No. VLC-S-S-217598 (Supreme Court of British Columbia) and Lebeau v. Syngenta, Court File No. 750-06-000007-218 (Superior Court of Québec).

[2] The Québec action was authorized to proceed as a class action on July 27, 2022. The present action in Ontario has not yet been the subject of a certification motion.

[3] The British Columbia action likewise has not yet been the subject of a certification motion. Plaintiff’s counsel in British Columbia has, however, recently amended its claim to include in the proposed class “any individual in Canada (excluding Québec) who has been diagnosed with Parkinson’s disease after using and/or being exposed to Gramoxone at any time during the Relevant Period.” For their part, Defendants have brought a motion in the B.C. court seeking to stay the proceedings in that province on the grounds that Ontario, not British Columbia, is the appropriate jurisdiction for a class action across all of the common law provinces.

[4] In the present motion, the Plaintiff wishes to discontinue the Ontario action. Although the Plaintiff himself has not sworn an affidavit, counsel advise that he is a resident of British Columbia who suffers from health problems, and that he would now personally prefer to be a class member in the British Columbia action rather than be the representative Plaintiff in Ontario. As a result, they further advise that he is unwilling to continue as representative Plaintiff.

[5] As this is a proposed class action, section 29(1) of the Class Proceeding Act, 1992, SO 1992, c. 6 (“CPA”), requires court approval for a discontinuance. Although there is a need for fairness at all stages, the case law in respect of the CPA is mostly focused on post-certification discontinuances. At that stage, there is a particular need to ensure that in discontinuing the putative class members are not prejudiced or that any prejudice is mitigated: Winter v. C.R. Bard, 2020 ONSC 3532, at para 20.

[6] In other words, although the motion is served on the Defendant, the concern addressed by section 29(1) of the CPA is not aimed at the Defendant. Rather, “[t]he requirement for approval is intended for the protection of the interests of the absent class members”: Sollen v. Boehringer Ingelheim (Canada) Ltd., 2018 ONCA 803, at para 3.

[7] Plaintiff’s counsel submits that, “discontinuing the proposed class proceeding against the Defendants is appropriate in the circumstances and will not prejudice the interests of the class in this proposed action, since their claims can all be addressed in the Gionet Action. Discontinuing this proceeding will eliminate one parallel proceeding, preventing duplication of efforts and avoiding the potential for inconsistent results across multiple forums.” Plaintiff’s counsel also contends that it will enhance judicial economy to focus the common law action on one jurisdiction nationwide.

[8] It is not uncommon for Defendants to object to a Plaintiff’s unilateral discontinuance of an action, not because they wish to continue being sued but because they have already incurred costs in defending the action. The remedy for Defendants in this situation is found in Rule 23.05 of the Rules of Civil Procedure – they can move for compensation for costs upon the Plaintiff’s discontinuance.

[9] Here, Defendants’ counsel takes the unusual position that I should disallow the discontinuance altogether. Counsel submits that the Plaintiff has engineered matters in a way that deprives the Defendant of rights it would have if it litigated the matter in Ontario, guaranteeing that the action will now be litigated in what the Defendants view as the less favourable jurisdiction of British Columbia. Defendants’ counsel indicated in argument that her clients had brought the jurisdictional motion in B.C. in order to preserve the very rights that the Plaintiff seeks to undermine by this proposed discontinuance.

[10] I must admit to being intrigued, but also perplexed, by the Defendants’ point. In my to-and-fro with Defendants’ counsel, I indicated that it is not expected that a Defendant will seek an order effectively continuing a lawsuit against it that the claimant wishes to drop. I then inquired as to what the Defendants’ position will be if they were to be successful in their argument that British Columbia should not take jurisdiction over this matter – i.e. will they still be saying that they want to litigate in Ontario, or will they then be happy for the Plaintiff to have discontinued?

[11] The question was more rhetorical than anything, since the answer is self-evident that a rational Defendant accused of causing injury will prefer not to face any Plaintiff at all. I can only assume that the Defendants are in this respect economically rational actors.

[12] At the same time, I am concerned about Defendants’ counsel’s point that the Plaintiff may have manipulated the various jurisdictions to obtain a tactical advantage of some kind. Defendants’ counsel point out that an Ontario timetable has already been set and that the Defendants have spent the time and resources it takes to work on the Ontario action and make it their preferred jurisdiction for defending the claim. I therefore directed some questions to Plaintiff’s counsel aimed at assessing whether the Plaintiff was genuine in his desire not to litigate in Ontario.

[13] In particular, I asked whether Plaintiff’s counsel would object to a ruling that the discontinuance be ordered with prejudice to the Plaintiff, in effect prohibiting him from re-starting the Ontario case if the B.C. court should rule that it has no jurisdiction. Plaintiff’s counsel assured me that their client has no intention of re-starting the case down the road, and that they have no instructions to do so. That, however, does not provide a complete answer in a proposed class action, since other putative class members will not be bound by an Order directed to the Plaintiff where the case has not been certified.

[14] I was also curious about the grounds for excluding B.C. jurisdiction, so I asked Defendants’ counsel to briefly explain them to me. It was hard for me to imagine a B.C. court holding that a Defendant who sells a product widely to consumers in that province, even if manufactured elsewhere by a company headquartered elsewhere, cannot be sued in B.C. Defendants’ counsel’s response made it clear that what the Defendants are calling a jurisdictional motion is, in fact, a forum non conveniens motion. The grounds for removing the matter from B.C. to Ontario are that the witnesses and documents necessary for the case are all located in Ontario, not in B.C.

[15] It is not my task to pre-judge what the British Columbia court will do with that motion. But if the Ontario claim has vanished because the Ontario Plaintiff wishes to withdraw, there is nothing for the B.C. court to compare itself to in terms of convenience. Furthermore, as has been said elsewhere, at a time when hearings, discoveries, and client meetings are on Zoom, and documents are exchanged by the parties and filed with courts in digital form, the old forum non conveniens factors are greatly diminished in relevance: Kore Meals LLC v. Freshii Development LLC, 2021 ONSC 2896, at para 32. Vancouver is neither more nor less convenient than Toronto if we all meet and do business in cyber space.

[16] My guess is that if the Ontario action disappears, the British Columbia motion will vanish along with it. As provided in the Rules, the recourse for the Defendants against these multijurisdictional moves, and the price for the Plaintiff in creating all of this complexity, is found in the argument for costs.

[17] I will not compel an unwilling Plaintiff to continue to litigate in Ontario, where the rest of the putative class appears to me to have ready access to justice in British Columbia. As already indicated, my concern under section 29(1) of the CPA is to ensure that there is no prejudice, or minimal prejudice, to the putative class members. Justice for the Defendants is also important, of course, but under these circumstances it is addressed bv Rule 23.05.

[18] Costs are always discretionary under section 131 of the Courts of Justice Act, RSO 1990, c. C.43. Plaintiff’s counsel asserts that a round figure of $25,000, all inclusive, would seem to be a fair amount for the costs thrown away on the Ontario action now being discontinued. Defendants’ counsel has submitted a Bill of Costs and a law clerk’s supporting affidavit detailing the costs invested in the Ontario action since inception. On a partial indemnity scale these costs come to $71,807.32, while on a substantial indemnity scale they come to $107,710.98. Both figures are inclusive of HST.

[19] I have no reason to doubt that Defendants’ counsel’s Bill of Costs has separated out the Ontario costs from the related Quebec and B.C. actions. The law clerk’s affidavit is explicit in this regard. It also describes that Defendants’ counsel’s firm has taken into account Ontario work that can be repurposed for the B.C. action if it proceeds. Generally, the Bill of Costs is itemized coherently into the different tasks and stages of the action, including work on pleadings, preparation of and attendance at case conferences, and work done on the jurisdictional issue.

[20] I am not inclined to second guess the quantum of costs set out in Defendants’ Bill. That said, I am also not inclined to award costs on a substantial indemnity basis. Plaintiff’s counsel filed class actions in two common law jurisdictions because the product in issue was sold nationally. That is not an unusual occurrence in Canada, and I see nothing untoward in doing so. The Plaintiff has now decided that one jurisdiction is enough and he seeks to withdraw from Ontario. That is also not uncommon and, indeed, is to be expected for national class actions.

[21] Generally speaking, it is the Plaintiff who decides where to sue when multiple jurisdictions within the country present themselves, and the Plaintiff has done so here. There is nothing improper in any of this that would prompt me to award costs on a substantial indemnity scale.

[22] The Plaintiff shall pay the Defendants costs in the all-inclusive amount of $71,807.32.

[23] The Ontario action is discontinued, with prejudice.

Date: February 6, 2023 Morgan J.