2011 QCCA 1133, 2011 QCCA 1133

Schmidt c. Depuy International Ltd. 2011 QCCA 1133 COURT OF APPEAL CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-09-021619-119 ( 500-06-000539-102 ) MINUTES OF THE HEARING DATE: June 14, 2011 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER ATTORNEYS LORNE SCHMIDT Mtre David Assor Mtre Owen Falquero MERCHANT LAW GROUP RESPONDENTS ATTORNEYS DEPUY INTERNATIONAL LTD. DEPUY ORTHOPAEDICS INC. JOHNSON & JOHNSON CORP. JOHNSON & JOHNSON INC. Mtre Gregory Brian Bordan Mtre Josée Noiseux NORTON ROSE MIS EN CAUSE ATTORNEYS ALAN DICK Mtre Robert Kugler Mtre Olivera Pajani KUGLER KANDESTIN

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON MARCH 23, 2011, BY THE HON. JEAN- FRANÇOIS De GRANDPRÉ OF THE SUPERIOR COURT DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: RC.18 HEARING 9:32 Commencement of the hearing. 9:33 Submission by Mtre Assor. 9:34 Exchange between the judge and counsels. 9:35 Continuation of Mtre Assor’s submission. 9:58 Submission by Mtre Kugler. 10:21 Submission by Mtre Bordan. 10:22 Reply by Mtre Assor. 10:26 Suspension. 10:39 Resumption of the hearing. 10:40 BY THE JUDGE. Judgment – See page 3.

Annick Nguyen Clerk JUDGMENT [ 1 ] This is an application for leave to appeal from a judgment of the Superior Court, District of Montreal, (the Honourable Jean- François de Grandpré) rendered on March 23, 2011 and ordering a suspension of proceedings in a motion for authorization to institute a class action. The stay was ordered until final judgment on a similar motion to authorize a class action in the case of Dick v. Johnson & Johnson (500-06-000550-109) which had been filed after the present proceedings in the Superior Court. [ 2 ] Having heard the parties, including counsel for Mr.

Dick, I am of the view that the matters raised in this case are among the

exceptional circumstances that invite the Court to grant leave from a judgment rendered at this early stage in connection with a motion to authorize a class action. [1] Without limiting in any way the scope of deliberations on the merits of the appeal, I am of the view that these exceptional circumstances include the relationship between the so-called first-to-file rule and the discretionary powers of the judge charged with the case management of the class action proceedings.

Furthermore, I am of the view that the criteria for leave to appeal set forth in articles 29 and 511 C.C.P., applied here by analogy, are satisfied in the circumstances, in particular that the pursuit of justice requires that leave be granted. [ 3 ] FOR THESE REASONS , the undersigned: [ 4 ] GRANTS the motion for leave to appeal; [ 5 ] ORDERS the suspension of the present proceedings as well as the proceedings in Dick v.

Johnston & Johnston (500-06- 000550-109) in the Superior Court until such time as final judgment is rendered on this appeal; [ 6 ] ORDERS the appellant, after having served a copy upon the respondents, to file in the office of the Court, no later than August 5, 2011 , four copies of a written argument not exceeding 20 pages , of the documents that would normally have made up schedules I, II and III of his factum and of his authorities; [ 7 ] ORDERS the respondents, after having served a copy upon the appellant, to file in the office of the Court, no later than September 9, 2011 , for copies of a written argument not exceeding 20 pages , of their supplementary documents, and of their authorities; [ 8 ] ORDERS the mis en cause, after having served a copy upon the appellant and respondents, to file in the office of the Court, no later than September 9, 2011 , for copies of a written argument not exceeding 20 pages , of his supplementary documents, and of his authorities; [ 9 ] ORDERS the parties to present their written arguments on 21.5 cm X 28 cm (8 ½ X 11 in.) paper, with line spacing of at least 1.5 lines (except in the case of quotations, which must be single-spaced and indented), and the computer-prepared text shall be in 12-point type, with no more than 12 characters per 2.5 cm; [ 10 ] ORDERS that the documents filed by the parties carry a continuous pagination or tabs, a front cover and a general table of contents; [ 11 ] DEFERS the file to the Master of the rolls to determine the date of a 135 minutes hearing; [ 12 ] COSTS to follow suit.

NICHOLAS KASIRER, J.A.