2024 ONSC 2395

Court File and Parties

Court File No.: CV-23-1581 Date: April 23, 2024

Superior Court of Justice – Ontario 7755 Hurontario Street, Brampton ON L6W 4T6

Re: LISA MAGUIRE, plaintiff AND: HIS MAJESTY THE KING IN RIGHT OF CANADA, JUSTIN TRUDEAU, THERESA TAM, JEAN-YVES DUCLOS, CAROLYN BENNETT, HIS MAJESTY THE KING IN RIGHT OF ONTARIO, DOUG FORD, SYLVIA JONES, MICHAEL TIBOLLO, BAYER INC, BAYER CANADIAN HOLDINGS INC. BAYER CROPSEINCE HILDINGS INC., MCNEIL CONSUMER HEALTHCARE, CITY OF HAMILTON, FRED EISENBERGER, JASON FARR, CANADIAN BROADCASTING CORPORATION, RANDY STEPHENSON, CHILDREN’S AID SOCIETY OF HALTON, CAROLYN OLIVER, DATIE DRYSDALE, NATASHA COSTELLO, CATHOLIC CHILDREN AID SOCIETY OF HAMILTON, ST. JOSEPH’S HEALTHCARE HAMILTON, SARAH BURTENSHAW, SARAH, HAMILTON HEALTH SCIENCES, MCMASTER CHILDREN’S HOSPITAL, CHILD ADVOCACY AND ASSESSMENT PROGRAM, HARRIET MACMILLAN, ANGELA MCHOLM, ANNE NIEC, JANINE AND DEBRA RIGGS

Before: Justice Fowler Byrne

Counsel: Self Represented, Lisa Maguire, plaintiff Mr. William McNamara, Ms. Morag McGreevey, for Bayer Linley Robin and Jessica Lam for Johnson & Johnson

Heard: February 15, 2024, by video conference

Endorsement

[1] There are two motions before me, both seeking that I amend or vary my order, pursuant to r. 59.06 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The first motion was brought by Johnson & Johnson Inc. and McNeil Healthcare (Canada), a division of Johnson & Johnson Inc. (“J&J Defendants”). The second motion was brought by Bayer Inc., Bayer Canadian Holdings Inc., Bayer CropScience Inc. and Bay CropScience Holdings Inc. (“Bayer Defendants”). Both seek a reconsideration of my endorsement in this matter dated October 4, 2023, following a request to dismiss or stay this action pursuant to r.2.1.

Background

[3] The background to this claim is set out in my original decision released on October 4, 2023 and need not be repeated here.

[4] The Statement of Claim in this action is close to 500 pages in length. It sets out a series of separate claims and allegations against each specific group of Defendants. For the purposes of this motion, only the claims against the Bayer Defendants and the J&J Defendants are relevant.

[5] With respect to the Bayer Defendants, the Plaintiff is claiming that these Defendants placed glyphosate-based herbicides into the stream of commerce and into the food supply, and that they failed to warn of the dangers of doing so. In an open letter that the Plaintiff wrote to Justice Trudeau, on page six she alleges:

An exhaustive review of the toxic effects of glyphosate, a known microbiome-altering agent, found that the herbicide contributes to obesity, depression, violent tendencies, ADHD, autism, Alzheimer's Disease, Parkinson's disease, Amyotrophic Lateral Sclerosis (Lou Gehrig's Disease), Multiple Sclerosis, inflammatory bowel disease (Crohn's disease & ulcerative colitis), cancer, heart disease, diabetes, cachexia (wasting of the body), infertility and developmental malformations.

[6] With respect to the J&J Defendants, she is claiming that these Defendants placed Tylenol into the stream of commerce and into the food supply, and that they failed to warn of the dangers of doing so. In paragraph 196 of the Plaintiff’s Notice of Motion to re-open, she alleges:

Moreover, acetaminophen, and therefore Tylenol®, when used as directed, is also now implicated as a causal factor in the global epidemics of paediatric asthma and chronic paediatric neurological dysfunctions, such as autism and ADHD, due to its proclivity to deplete glutathione (the "Adverse Event"), which renders children unable to detoxify the massive amount of harmful environmental agents they are exposed to in these times, the majority of which originate in foods contaminated with artificial chemically-based ingredients, other environmental toxins such as heavy metals, and glyphosate.

[7] The Bayer Defendants and the J&J Defendants now request that I reconsider my order pursuant to r.59.06(1) and that I dismiss the Plaintiff’s claims against them under r.2.1. The Plaintiff opposes this relief.

Law

[8] Rule 59.06(1) states that if an order contains an error arising from an accidental slip or omission, or if it requires amendment in any particular on which the court did not adjudicate, a party may bring a motion to amend the order accordingly.

[9] I have the jurisdiction to reconsider my decision as no order has been taken out and entered: Meridian Credit Union Limited v. Baig, 2016 ONCA 942, at para. 7.

[10] The principles applicable to motions brought under r.59.06(1) are well summarized by Perell J. in Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., 2013 ONSC 1502, at paras. 30-31:

a. This rule is designed to amend judgments containing a slip or errors which are clerical or mathematical in nature, or due to misadventure (ie. an accident or mishap) or oversight;

b. This rule is designed to amend a judgment containing a slip, not to set aside judgments resulting from a slip in reasoning;

c. It is not designed to be a disguised means to review errors in the making of the Reasons for Decision; rather, it is designed to correct errors in memorializing the Reasons into a formal order or judgment;

d. It is only operative in exceptional circumstances given the public interest in the principle of finality to the litigation process.

Analysis

[11] These Defendants have alleged two errors or oversights:

a. The Baxter Defendants filed with their submissions a Statement of Claim commenced by the Plaintiff in the Federal Court in 2021; this pleading was never forwarded to me for my consideration; and

b. Due to an accident, slip or oversight, I failed to identify those paragraphs in the Statement of Claim that were clearly relevant to the limitation period at play.

Federal Court Decision

[12] When a request was first submitted jointly on behalf of a large number of Defendants, an endorsement was forwarded to Ms. Maguire asking for her written submissions in response. Those were delivered to the court in August 2023. The Defendants were then entitled to make written submissions in response. In those written submissions, they highlighted that an almost identical claim was commenced in the Federal Court in 2021 and that it was struck in its entirety. No Statement of Claim from the Federal Court was provided for my review. This is clear from my endorsement of October 4, 2023 at para. 3, wherein I stated that I did not have the Federal Court Statement of Claim for review.

[13] I have reviewed the evidence filed by the Bayer Defendants and am satisfied that while filed, the Statement of Claim from the Federal Court was not forwarded to me with their written submissions. While evidence is not permitted on r. 2.1 matters, I am able to review reasons and pleadings from other proceedings to determine whether a case I abusive: Khan v. Law Society of Ontario, 2020 ONCA 320, 446 D.L.R. (4th) 575, at para. 9; Mukwa v. Farm Credit of Canada, 2022 ONCA 320, at para. 13.

[14] That being said, this omission in these circumstances did not give rise to relief under r. 59.06(1). In paragraph 50 of my original decision, I accepted that the issues raised in the Federal Court were similar to those raised in this claim and were an attempt to relitigate those issues in the correct forum. That was one of the factors that I considered when determining that the claims against the other Defendants were frivolous, vexatious and an abuse of process. My inability to read the Federal Court claim though, did not result in a clerical error or mistake, nor did it result in a slip in reasoning with respect to the Baxter Defendants or the J&J Defendants. The Federal Court claim was dismissed primarily for want of jurisdiction.

Limitation Period

[15] In paragraph 58 of my original decision, I stated that the claims against the Baxter Defendants and the J&J Defendants were not statute barred on their face. In paragraph 59, I stated that there was no limitation period, as pleaded. The Baxter Defendants and the J&J Defendants argue that this finding is detrimental to their defence, not supported by the pleadings, and respectively, incorrect in law.

[16] Whether or not correct, r.59.06 is not the appropriate rule with which to rectify those alleged errors. Whether cloaked as an “oversight” or an “accidental slip”, it is the treatment of the limitation period in my reasons to which these Defendants object. As indicated above, r. 59.06(1) is not designed to be a disguised means to review errors in the making of the Reasons for Decision. Rather, it is designed to correct errors in memorializing the Reasons into a formal order or judgment. There is no inconsistency between my reasons and my order.

[17] I also disagree that my comments on the limitation period are final and binding on the Defendants. As I indicted, there is a lack of a limitation period issue “on its face”. This is not a final determination. The Defendants are free to plead a limitation period defence when and if this matter proceeds, and can fully explore that issue in discoveries and argue it at trial. If proceeding under another rule, they can adduce evidence that would support their defence of a limitation period prior to trial. My reasons do not tie their hands.

Conclusion

[18] Accordingly, for the foregoing reasons, the two motions seeking an amendment of my order of October 4, 2023 pursuant to r. 59.06(1), are dismissed.

Fowler Byrne J.