In a rare and dramatic oral ruling from the bench, the Ontario
Divisional Court yesterday upheld the May 7, 2012
decision of Horkins J. in Martin v. AstraZeneca Pharmaceuticals
Plc, 2012 ONSC 2744 to deny certification of a
proposed national class action relating to the anti-psychotic
medicine, Seroquel®. The Divisional Court's judgment marks
the first time that an Ontario appellate court has denied
certification of a pharmaceutical or medical device class action
against a private defendant, and only the second time that a
Canadian appellate court has done so in a common law province.
As discussed in a
previous bulletin, the AstraZeneca class action
alleged that the three defendant companies were liable for
negligently designing, manufacturing and marketing Seroquel®,
negligently failing to warn patients that it can cause serious
health risks such as weight gain and diabetes, conspiring to
conceal those health risks from Health Canada and promoting the
medicine for off-label, unapproved uses. Horkins J. delivered a
78-page judgment denying certification on the basis that the
plaintiffs failed to meet any of the criteria under s. 5(1) of the
Ontario Class Proceedings Act, 1992 (CPA).
The Divisional Court heard oral arguments from February 19-20,
2013 and delivered its judgment dismissing the appeal in open court
on February 21. The Divisional Court panel, consisting of Aston,
Lederer and Herman JJ., found that the plaintiffs failed to
establish a single error in Horkins J.'s carefully reasoned
decision. In doing so, the Court agreed not only with Horkins
J.'s conclusion that the plaintiffs failed to disclose a cause
of action under s. 5(1)(a) of the CPA, but also with her
ground-breaking reasons for this. Further, the Court declined to
grant the plaintiffs leave to amend their statement of claim given
their failure to request this relief before Horkins J., and the
lack of evidence to support the common issues.
The Divisional Court also rejected the plaintiffs' argument
that Horkins J. engaged in an impermissible weighing of evidence in
finding that they failed to meet the remaining certification
criteria in ss. 5(1)(b)-(e). Aston J., who read the Court's
judgment, observed that Horkins J. was entitled to scrutinize the
plaintiffs' evidence in order to discharge her gatekeeping
role, including the cross-examinations of their experts.
Finally, the Divisional Court affirmed the costs decision of Horkins J., in which she
awarded the defendants costs of approximately $725,000. Of note,
the Court held that Horkins J. did not err in taking into account
the fact that plaintiffs' counsel agreed to indemnify the
plaintiffs for a costs order. In its view, Horkins J. did not
use the existence of the indemnity agreement to award the
defendants a higher level of costs, but rather to find that the
plaintiffs' argument that this award would have a chilling
effect on a disadvantaged group of people lacked merit. The Court
also held that the fact Horkins J.'s order set a new
"high-water mark" for costs awarded to defendants was not
itself a reason to interfere with it.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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