LOUISE JOY ALLISON v. DEBRA GILLIS, 2023 SKKB 283

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 283 Date: 20 23 12 22 Docket: QBG-RG-02361-2010 Judicial Centre: Regina BETWEEN: LOUISE JOY ALLISON AND DEBRA GILLIS PLAINTIFFS/RESPONDENTS - and - JANSSEN-ORTHO INC., JOHNSON & JOHNSON INC., JOHNSON & JOHNSON, JOHNSON & JOHNSON PHARMACEUTICAL RESEARCH & DEVELOPMENT, LLC, ORTHO-MCNEIL PHARMACEUTICALS INC., BAYER INC., BAYER CORPORATION, BAYER HEALTHCARE PHARMACEUTICALS, INC., BAYER HEALTHCARE, LLC., RANBAXY PHARMACEUTICALS CANADA INC., APOTEX, INC.

AND TEVA CANADA LIMITED DEFENDANTS/APPLICANTS CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendum released January 4, 2024. (A copy of the corrigendum is appended to this corrected judgment.) Counsel: E.F. Anthony Merchant, K.C. for the respondents and Anthony Tibbs Scott Maidment and Jennifer Dent for the applicant, Teva Canada Limited Rob Carson for the applicant, Apotex, Inc. Sean Sinclair and for the applicant, Jonathon McLean Ranbaxy Pharmaceuticals Canada Inc. Jason Mohrbutter, K.C. and for the applicants, W. Grant Worden Bayer Inc.

Corporation, Bayer Healthcare Pharmaceuticals Inc, Bayer Healthcare LLC Amanda Quayle, K.C. and for the applicants, Gordon McKee Janssen-Ortho Inc., Johnson & Johnson Inc., Johnson & Johnson, Johnson & Johnson Pharmaceutical Research & Development, LLC JUDGMENT KLATT J. December 22, 202 3

Overview [ 1 ] The statement of claim, issued in December 2010, was commenced on behalf of persons who purchased, used, or acquired fluoroquinolone antibiotics. Each of the defendants manufactured and/or sold fluoroquinolone antibiotics under different product names.

The proposed plaintiffs [plaintiffs] claim that the antibiotics caused adverse side effects including tendon ruptures, disorders or injuries. [ 2 ] The claim is grounded in negligence, breach of competition, consumer protection and trade practices legislation, and breach of warranty. [ 3 ] Very little of substance transpired over the years. [ 4 ] In 2020, during several management teleconferences, counsel for the defendants indicated they would likely proceed with applications to strike for delay. In the circumstances, the delay has been inordinate and the plaintiffs’ claim should be struck.

Background [ 5 ] The statement of claim was issued on December 23, 2010 in the name of the proposed plaintiffs, Louise Joy Allison and Debra Gillis.

The initial defendants were Bayer Inc., Bayer Corporation, Bayer Healthcare Pharmaceuticals Inc., and Bayer Healthcare LLC, collectively referred to as [Bayer], Janssen-Ortho Inc., Johnson & Johnson Inc., Johnson & Johnson, Johnson & Johnson Pharmaceutical Research & Development, LLC, and Ortho-McNeil Pharmaceuticals, Inc., collectively referred to as [Janssen]. [ 6 ] Seven of the nine defendants were served within six months; Janssen-Ortho Inc. was served outside the six months.

The Bayer defendants were not served at all. [ 7 ] The statement of claim was amended on November 2, 2011, adding additional defendants, Ranbaxy Pharmaceuticals Canada Inc. [Ranbaxy], Apotex, Inc. [Apotex], and Teva Canada Limited [Teva] . The amended statement of claim was served on all defendants on various dates in February 2012. [ 8 ] On April 10, 2013, the plaintiffs applied ex parte for an order appointing a judge to hear the certification application pursuant to ss. 4(2) (

a) of The Class Actions Act , SS 2001, c C-12.01 [ CAA ] and Rule 79 of the former Queen’s Bench Rules . Popescul C.J. dismissed the application because there had been improper service of the statement of claim on all defendants. [ 9 ] Then, on August 15, 2013, the plaintiffs applied ex parte for an order extending the time for service nunc pro tunc to the date of the last service.

Dawson J. extended the time for service to December 23, 2013 but declined to order it nunc pro tunc . [ 10 ] On March 3, 2014, the plaintiffs again applied ex parte for an order appointing a judge to hear the certification application . On May 6, 2014, Popescul C.J. dismissed the application again because of imperfect compliance with The Queen’s Bench Rules (since amended) respecting proof of service on three of the defendants. [ 11 ] On June 17, 2014, an articling student with the plaintiffs’ law firm emailed Bayer’s counsel asking if he was representing Bayer and, if so, to sign the acknowledgment of service.

Bayer’s then counsel, Robert W. Leurer, Q.C. (as he then was), responded in the affirmative, subject to reserving the right to contest jurisdiction of the Saskatchewan court. Mr. Leurer also asked what the intentions of the plaintiffs were in moving the matter forward. Mr. Leurer received a response that the plaintiffs “ wished to proceed to certification ”. That same day, Mr. Leurer signed the acknowledgment of service and returned it to the student by email. He asked again what the plaintiffs’ intentions were with respect to the matter.

The plaintiffs’ counsel did not respond at all ( Affidavit of Lianne Werner, filed October 15, 2020, paras. 9-10; Emails, Exhibit C to the Werner affidavit). [ 12 ] On July 14, 2014, Popescul C.J. designated Dawson J. to consider the certification application. [ 13 ] Nothing happened for almost five years until May 14, 2019 when the plaintiffs applied for an order validating service on the Bayer defendants. The order was granted, though it was unnecessary because Bayer’s counsel acknowledged service almost five years earlier.

The plaintiffs were ordered to pay costs to Bayer. [ 14 ] Nothing happened on the file until February 5, 2020 when the plaintiffs filed five additional affidavits. Nothing else was filed and there was no application before the court. [ 15 ] On May 11, 2020, I was appointed the case management judge after Dawson J. elected supernumerary status.

I scheduled a management teleconference for June 19, 2020. [ 16 ] On June 17, 2020, the plaintiffs filed an amended statement of claim adding a claim that fluoroquinolone antibiotics cause peripheral neuropathy. [ 17 ] During the first management teleconference on June 19, 2020, the defendants all indicated that they would likely bring applications to strike the claim for delay. [ 18 ] On July 13, 2020, the plaintiffs filed an affidavit of Aftab Akhter that had been sworn the same day. [ 19 ] The applications to strike for delay were filed between August and October 2020. [ 20 ] On October 22, 2020, the plaintiffs filed a notice of application for certification.

Issue

[ 21 ] The sole issue is whether the plaintiffs’ claim should be struck for delay. Analysis [ 22 ] The defendants apply to have the claim struck for delay pursuant to Rule 4-44 of The King’s Bench Rules . Rule 4-44(

a) provides that on application, the court may “dismiss all or any part of a claim if the Court is satisfied that the delay is inordinate and inexcusable and that it is not in the interests of justice that the claim proceed". [ 23 ] The framework to be applied in considering applications to strike claims for delay was established in the leading case of International Capital Corporation v Robinson Twigg & Ketilson , 2010 SKCA 48 , 319 DLR (4 th ) 155 [ ICC ] and subsequently endorsed in Morsky Construction Ltd. v Nickle Lake (Regional Park Authority) , 2016 SKCA 110 , 485 Sask R 32; Schening v Steel , 2020 SKCA 137 , 51 RFL (8 th ) 1; Taylor v Moose Jaw Downtown and Soccer/Field House Facilities Inc . (Mosaic Place), 2021 SKCA 123 . [ 24 ] Recently, the Court of Appeal has re-affirmed the applicability of the ICC framework for striking applications in the context of proposed class actions, so long as “proper attention is paid to the procedural course it is destined to take”: Huard v The Winning Combination Inc. , 2022 SKCA 130 at para 50 [ Huard ]. [ 25 ] I begin with a re-statement of the framework as set out in ICC : [43] The first step ... is an inquiry about whether the defendant has established that the delay in moving a case ahead has been inordinate.

This will involve considering the time the plaintiff has taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to what might typically be expected in a case of similar complexity. This is necessarily a matter of informed judgment grounded in the overall experience of the court and the particulars of the file in question. [44] The second step in the analysis ... is an examination of the reasons for the delay aimed at determining whether it is excusable.

This inquiry will entail consideration of the nature of the claim, the diligence with which the claim has been pressed by the plaintiff, and the specific reasons offered as to why the matter has not moved more quickly . A wide variety of factors might be expected to factor into this assessment. [45] The third step ... is this. If the court finds delay to have been both inordinate and inexcusable, it should not consider the issue of "serious prejudice" as a discreet question.

Rather, it should move directly to the issue of whether it is in the interests of justice that the case proceed to trial notwithstanding the delay and should consider the issue of prejudice in that context. … [ 26 ] In ICC at para 45 , Richards J.A. (as he then was) identified non-exhaustive factors that inform the third and final step in the analysis: (

a) The prejudice the defendant will suffer in mounting its case if the matter proceeds; (

b) The length of the inexcusable delay; (

c) The stage of the litigation; (

d) The impact of the inexcusable delay on the defendant; (

e) The context in which the delay occurred; (

f) The reasons offered for the delay; (

g) The role of counsel in causing the delay; (

h) The public interest. 1. Has the delay been inordinate? [ 27 ] In determining whether delay has been inordinate, I have reviewed the chronology of the steps taken in this case. The statement of claim was filed in December 2010 and the amended statement of claim was filed in November 2011. Nothing happened until 2013 when the plaintiffs applied for an ex parte order appointing a judge to hear the certification application. The application was denied because service on the defendants was improper. Almost another year elapsed when the plaintiffs renewed their ex parte application for the appointment of a judge.

Again, because of service defects, the application was dismissed. [ 28 ] Then, nothing happened for almost five years until the plaintiffs filed an application validating service of the amended statement of claim on Bayer. [ 29 ] As it was, the application for certification was not even filed until October 2020, after all but one of the defendants’ applications to strike the claim for delay were filed. [ 30 ] I have considered the cases referred to me by the defendants in other non-class action cases where claims have been struck for shorter periods of delay, for example: McLeod v Fyson , 2014 SKQB 87 , 440 Sask R 286 (delay of three years, five months); Anderson v Wascana Wood Components Ltd. , 2010 SKQB 357 , 361 Sask R 219 (delay of three years); Saskatchewan Government Insurance v Bear , 2017 SKQB 276 , 14 CPC (8th) 171 (delay of five years); McDiarmid Lumber Ltd. v Ochapowace First Nation , 2010 SKQB 402 , 6 CPC (7th) 376 (delay of five years).

However, relatively uncomplicated cases are not the most helpful comparators to a case like this. [ 31 ] Perhaps a better analogy to this case can be illustrated in University of Saskatchewan v Cana Construction Co.

Ltd ., 2011 SKQB 55 , 368 Sask R 288. Currie J. dismissed the plaintiff’s claim against some of the defendants after finding the six-year delay in prosecuting the claim was inordinate. The claim centered around a complex construction dispute with numerous defendants. [ 32 ] The plaintiffs rely on Knight v Imperial Tobacco Canada Limited , 2017 BCSC 1487 , 10 CPC (8th) 372 for the proposition that proposed class action litigation should be treated differently than non-class action lawsuits.

While it is true that whether a delay is inordinate will depend on the nature of the litigation, the fact this is a proposed class action is not a reason alone to excuse long periods of little or no activity. [ 33 ] Additionally, under s. 4 of the CAA , a certification application must be made within 90 days of the statement of defence being delivered or the deadline for which the statement of defence should have been delivered.

Certainly, this timeline is ambitious and while s. 4 is honoured more often in the breach than in its observance, the obvious intent of the Saskatchewan legislators in enacting it was to ensure that proposed class actions do not languish.

The same sentiment was expressed by Tholl J. (as he then was) when he dismissed a proposed class action claim after a four-year delay in McKinnon v Red Lily Energy Corp ., (31 July 2014) Saskatoon, QBG-SA-01251-2010 (Sask QB), appended at Tab 6 of Bayer’s Book of Authorities. [ 34 ] The ten or so years that have passed since the claim was filed have produced only shallow breaths of activity. I conclude that the delay has been inordinate. 2.

Is the delay excusable? [ 35 ] The question as to whether the delay is excusable involves a consideration of several factors including the nature of the claim, the diligence with which the claim has been prosecuted by the plaintiff, and the specific reasons offered for the delay. [ 36 ] The only reason that the plaintiffs have offered for the delay is that they were waiting for the science to settle. The plaintiffs refer to studies that were completed in 2014, then again in 2019, arguing that they had to wait until the research was complete.

Thus, they say (at paras. 22-36 of their brief) that there has been an ongoing evolution in the scientific evidence. [ 37 ] I can accept, as a general proposition, that in any case involving claims such as product liability or negligence, the related science is often evolving. There is no evidence before me, however, that the science in relation to fluoroquinolone was in a state of flux. There is nothing in Dr.

Mahyar Etminan’s report (appended as Tab B to his affidavit filed on behalf of the plaintiffs on October 22, 2020) that supports their assertion that the science relating to this particular drug was so unsettled that they needed to wait until more testing or research was done. [ 38 ] Dr. Etminan, at page 12 of his report, offered this general proposition: The science of causation formally known as causal inference is a complex discipline that is continually evolving. It is virtually impossible to demonstrate with 100% certainty that drug A causes condition B .

However, it is possible to infer from the best available scientific evidence the likelihood that a drug can cause a certain disease or condition. [Emphasis in original] Dr. Etminan proceeded to apply a well-known set of criteria to assess individual causation for conditions such as tendinopathy in patients using fluoroquinolone antibiotics. [ 39 ] However, as I read Dr. Etminan’s report, it is apparent that there were earlier studies, as far back as 2010, showing a relationship or connection between the use of fluoroquinolone antibiotics and tendinopathy. There is nothing in Dr.

Etminan’s report, or in any other material filed, that supports the assertion that the science that existed in 2010 or even 2014 was not sound. [ 40 ] In my view, the fact that further and more recent research and studies tended to confirm earlier scientific findings does not excuse the delay. It is difficult for me to accept that in this case, waiting for the claim to improve constitutes a valid reason for failing to progress it. [ 41 ] In conclusion, the plaintiffs’ excuse that they were waiting for the science to settle is not borne out in the evidence.

Parenthetically, if that was indeed the reason, they did not communicate this to Bayer’s counsel when he asked what the plaintiffs’ intentions were and whether they were proceeding. The plaintiffs, through their counsel, did not communicate this to any of the defendants. [ 42 ] I conclude that the delay is inexcusable. 3. Is it in the interests of justice that the case proceed to trial notwithstanding the delay? [ 43 ] I have found that the delay in this case is inordinate and inexcusable.

However, the jurisprudence is clear that despite these findings, I must consider whether the interests of justice demand that the case proceed. Schwann J.A. in Saskatchewan Crop Insurance Corporation v McVeigh , 2018 SKCA 76 at para 92 , 428 DLR (4 th ) 122 put it this way: [92] As Richards J.A. (as he then was) said in ICC , the question at this stage of the analysis is whether it is in the interests of justice for the case to proceed to trial notwithstanding undue and inexcusable delay (para 45).

This requires the first-instance judge to step back and ask whether, in spite of the inexcusable delay, there is a compelling "interests of justice" reason for the case to proceed on its merits. In a word, Caldwell J.A in Harding v Harding , 2014 SKCA 74 , 442 Sask R 8 , described it as a "failsafe". [ 44 ] The non-exhaustive ICC factors that inform this particular analysis do not call for a mathematical exercise, pitting one factor against another.

Even if one factor so compellingly dwarfs all the others, they should all be weighed collectively “in a fashion which is sensitive to the on-the-ground realities of litigation and with the aim of achieving a result which is just”: ICC at para 47 . See also Bovier v Crary Company , 2023 SKKB 21 at para 58 .

[ 45 ] After considering the ICC factors and assessing them collectively in the context of this case, I conclude that it is not in the interests of justice to permit the claim to proceed. [ 46 ] Each of the defendants addressed the prejudice that would result if the claim were allowed to proceed. [ 47 ] For example, Janssen, a subsidiary of Johnson & Johnson, submits it would suffer actual prejudice because of the inordinate passage of time.

Elizabeth Carew, a litigation paralegal with Johnson & Johnson deposed in an affidavit sworn August 31, 2020, that Levaquin is a fluoroquinolone antibiotic that was no longer marketed in Canada as of 2009, a year before the claim was commenced, and was no longer being sold in Canada by Janssen after April 2015. Certain dosages of Levaquin were no longer sold in Canada as of August 4, 2006. The United States subsidiaries stopped shipping Levaquin in January 2018. [ 48 ] Ms. Carew deposed that since the statement of claim was served on Janssen in 2011, several key witnesses have left the company.

These witnesses would have had knowledge relating to the product history and the sales and marketing of Levaquin . Witnesses who were employed in the research and development subsidiary of Johnson & Johnson have also left. They would have had knowledge of the product regulatory history, something Janssen asserts is key given the issues raised in the claim. [ 49 ] Ms.

Carew deposed that while there have been other legal actions commenced in other jurisdictions in relation to Levaquin, many of those actions have been discontinued or are still wending their way through the legal system. [ 50 ] Ajay Vashisht was employed as the Chief Financial Officer of Ranbaxy from the time it commenced operations in Canada in 2005 until 2017 when he moved to the United States to take on the role of Director of Finance of Sun Pharmaceuticals Industries Inc. [Sun Pharma]. Mr.

Vashisht deposed in an affidavit filed on August 31, 2020, that Ranbaxy Canada became a subsidiary of Sun Pharma in March 2015 and changed its name to Sun Pharma Canada Inc. in 2018. [ 51 ] Mr. Vashisht deposed that Ranbaxy’s department of regulatory affairs was responsible for the development and preparation of the product monograph for ciprofloxacin, Ranbaxy’s fluoroquinolone antibiotic. Ran-ciprofloxacin was a generic drug marketed and sold by Ranbaxy in Canada starting in late 2005.

He was not certain who in Ranbaxy’s regulatory affairs department would have been responsible for preparing the product monograph but he identified a person who was no longer in the country and was believed to be in India. Mr. Vashisht deposed that none of the persons responsible for the approval process between Ranbaxy and Health Canada in the time during which the plaintiffs used the drug remain employed with Sun Pharma. [ 52 ] Mr. Vashisht stated that from 2007 to 2016 Health Canada issued three notices of compliance for the approval of Ran-ciprofloxacin.

Different persons would have been responsible for preparing the applicable product monograph for each application. None of the persons involved in the approval processes for each of the relevant time periods are employed at Sun Pharma at this time. [ 53 ] Ranbaxy asserts that those witnesses would provide key evidence relating to the allegations concerning the unknown or unanticipated side effects from taking ciprofloxacin.

The fact that there is no current information as to the residence or employment of persons involved in the approval process between 2005 to 2016 would make mounting their defence substantially more difficult, if not impossible. [ 54 ] On behalf of Teva, Deborah Pouliot swore an affidavit on August 27, 2020 deposing that it was not until 2020 that Teva received any affidavits in connection with this matter and, even then, they only received two. Teva maintains that the plaintiff has yet to provide any evidence in support of the action against it.

The inordinate delay will make it very difficult to go back in time to address the claims against it. [ 55 ] Bayer argues that the plaintiffs allege their injuries occurred in 2009 and that this action involves events that occurred decades before, as early as the 1980’s and since the 1980’s.

Bayer says they will be unfairly prejudiced if they must defend claims that span some 40 years. [ 56 ] Like Bayer, Apotex relied on the passage of time alone, noting that this class action was brought on behalf of a potentially large number of persons and few of those persons will be able to clearly remember events from a decade or more ago. [ 57 ] The plaintiffs argue that the defendant’s claims of prejudice are insincere. They say the defendants are sophisticated litigants who operate not on the “whims” of an individual or two, but on policy, procedure and documentation.

In other words, the lawsuit will turn on expert evidence and business records that were likely to have been preserved as the defendants faced this and other lawsuits. [ 58 ] I cannot assume that the defendants should be able to defend the claims solely on the basis of documentary evidence or business records.

While such evidence is likely to form a large part of the evidence tendered in the case, the defendants have indicated there are other witnesses whose evidence would be necessary for them to properly mount their defence. [ 59 ] Even if the defendants could locate all their key witnesses, the lengthy passage of time will likely have impaired their recall of events that occurred many years ago. But delay does more than dim the recollection of witnesses. As Leurer J.A. (as he then was) observed in Huard at para 86 : [86] … Witnesses die, become unavailable or simply forget things. Documents disappear. Costs soar.

However, the consequences of delay go beyond the parties to an action. As I said at the outset, unnecessary delay inevitably saps public confidence in the judicial process as a method for dispute resolution. This is particularly true in the context of a proposed class action which, by its very nature, seeks to advance the interests of people other than the named plaintiffs who are in control of the prosecution of the action. [ 60 ] I find that the lengthy period of delay in this matter will cause prejudice to the defendants in preparing and advancing their defence to the claim.

[ 61 ] I find the length of the inexcusable delay to be at least seven years. The plaintiffs took no real action from February 2012, when they served their amended statement of claim on the defendants, to 2020. I do not consider their two ex parte applications for the designation of a certification hearing judge to be real or substantive steps because they were not supported by the necessary material. I also do not consider the unnecessary application to validate service to be a meaningful step to advance the claim.

To me, the inattention to the statutory requirements suggests a lack of interest in advancing the claim. [ 62 ] Those missteps aside, even once Popescul C.J. appointed a judge to hear the certification application in 2014, nothing happened until 2020. [ 63 ] The length of the inexcusable delay of seven to eight years, taken at its best, weighs very heavily in favour of dismissing the claim. [ 64 ] As to the stage of the litigation, generally, the interests of justice will weigh in favour of striking a claim where it has not progressed beyond the pleadings stage as opposed to an action that is well-advanced: ICC at para 45 .

However, I take particular note of the comments of Leurer J.A. in Huard : [53] Within the ICC test, an evaluation of the stage of a proceeding is often relevant when consideration is given to whether there has been delay, when there is an evaluation of whether the delay has been inordinate, and when a court determines where the interests of justice lie.

I see no difficulty in a court assessing any of this simply because it is addressing the delay in the prosecution of a proposed class action, so long as attention is paid to what is required to move an action ahead in that context, which includes assessing what must be done for the action to reach the certification hearing. [ 65 ] Here, it was only in October 2020 that an application for certification was even filed. And this came after the defendants filed their applications to have the claim dismissed for delay.

The plaintiffs’ claim remains in the early stages of litigation. [ 66 ] The context within which the delay occurred mitigates in favour of striking the plaintiffs’ claim. The ultimate responsibility in advancing the claim rests with the plaintiffs: Huard at para 73. In 2014, Bayer’s then counsel asked the plaintiffs’ counsel what their intentions were in moving the matter along. Bayer’s counsel received a perfunctory response that they “wished to proceed to certification”.

When Bayer’s counsel pressed further, there was no response at all and nothing of substance happened for five years or more. [ 67 ] The absence of any acceptable explanation weighs heavily against permitting the claim to proceed. [ 68 ] There is no evidence here that speaks to whether the delay was caused by the plaintiffs or by their counsel. In the absence of that evidence, I presume that they both bear responsibility in moving the matter forward. The plaintiffs’ counsel suggests that it would be unfair to remove the plaintiffs from the judgment seat as a result of counsel’s inaction.

However, as was stated in ICC at para 45 , plaintiffs' lawyers should not be allowed to defeat applications to strike for delay by assuming the blame for not moving the file forward. [ 69 ] There is another important point to make here. The representative plaintiff in a proposed class action is not merely a proxy for counsel. The proposed plaintiff must be attentive to not only his or her own interests, but those of the class.

In the context of class actions, the representative plaintiff owes an even higher duty to ensure the action moves forward, to notify the class members of the action and to generally represent the interests of the class (see: ss. 6(1) of the CAA ). [ 70 ] In terms of the public interest component of the third step in the analysis, Richards J.A. in ICC at para 45 , noted that there may be implications or significance that reach beyond the specific interests themselves. [ 71 ] The plaintiffs assert that there is public interest allowing claims to proceed in the context of proposed class actions.

The existence of putative class members is a factor to consider when deciding whether to dismiss a claim for delay. In Huard at para 56 , Leurer J.A. identified several non-exhaustive factors that might bear on the analysis: [56] … (

a) the information that putative class members have about the proposed class action; (

b) what actual reliance putative class members have placed on the proposed class action as the vehicle for addressing their claims; (

c) what information the putative class members have, or reasonably should have, as to the delay in the prosecution of the proposed class action and what steps, if any, they took to prompt it along or to pursue their claims independently in the face of that delay; (

d) the existence of other actions in which the putative class members' claims might be prosecuted; (

e) the existence of legal or practical barriers to the prosecution of the putative class members' claims outside of the proposed class action, either alone or with others; and (

f) the relationship of the claimants to the named plaintiffs. … [ 72 ] On February 5, 2020, several affidavits were filed on behalf of the plaintiffs but not in response to the application to strike the claim for delay.

Although the affiants deposed very cursorily that they would not be unable to manage a lawsuit against the defendants on their own, none of them provided evidence as to the extent of their knowledge of the proposed class action, the actual reliance on the proposed class action or whether they were aware of any delay in prosecuting the claim. [ 73 ] Put plainly, there is no evidence before me on this application that there are persons who say they delayed commencing their own claim because they were relying on the existence of this class action. [ 74 ] The plaintiffs also argue that dismissing the claim for delay is futile because another person with a similar claim could commence an action.

This very argument was addressed in Huard . Leurer J.A. stated: [65] Somewhat ironically, rather than arguing that the dismissal of their claim will prejudice putative class members, the plaintiffs say that nothing will be accomplished by an order that their proposed class action cannot proceed. In this regard, they say that the effect of their proposed class action has been to toll the limitation period otherwise applicable to other persons' claims and that there is nothing to stop others from commencing a new action since they would not be bound by the dismissal order. Considering this argument within

the ICC framework, the submission can be understood as an allegation that the Chambers judge failed to account for a factor that bears on whether it is in the interests of justice to allow the action to go forward even though there has been inordinate, inexcusable delay. It is my conclusion that it was not an error for the Chambers judge to fail to account for this, even if a correctness standard of review is applied to it. [ 75 ] In other words, it is not an error for a judge, under the third stage of the ICC framework, to fail to take into account that another person could commence a claim.

Here, while there are affidavits (unrelated to this application) from other persons with conditions similar to those of the proposed plaintiffs, there is no evidence that those persons want to commence their claims if the application to strike for delay is successful. [ 76 ] I am aware that on October 22, 2020, Greg McLean filed an affidavit on behalf of the plaintiffs. He deposed that he was willing to act as a representative plaintiff because he understood the plaintiff, Louise Joy Allison, had decided to step down as the representative plaintiff. Although I am not casting doubt on Mr.

McLean’s sincerity, I see this as a “Hail Mary” attempt, made after the applications to strike were made, to keep an inordinately delayed action alive. It does not tip the balance for me in favour of allowing the claim to proceed. [ 77 ] I have considered the totality of all the various factors that inform the decision as to whether it is in the interests of justice that the action be allowed to proceed despite the inordinate delay. I am satisfied that it is not in the interests of justice to allow the claim to proceed.

Conclusion [ 78 ] Pursuant to Rule 4-44 of The King’s Bench Rules , the defendants’ applications to dismiss the claim is granted. [ 79 ] The defendants are each entitled to costs under Column 1 of the King's Bench Tariff, to be paid within 30 days of this order. J. B.L.

KLATT KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 283 Date: 2024 01 04 Docket: QBG-RG-02361-2010 Judicial Centre: Regina BETWEEN: LOUISE JOY ALLISON AND DEBRA GILLIS PLAINTIFFS/RESPONDENTS - and - JANSSEN-ORTHO INC., JOHNSON & JOHNSON INC., JOHNSON & JOHNSON, JOHNSON & JOHNSON PHARMACEUTICAL RESEARCH & DEVELOPMENT, LLC, ORTHO-MCNEIL PHARMACEUTICALS INC., BAYER INC., BAYER CORPORATION, BAYER HEALTHCARE PHARMACEUTICALS, INC., BAYER HEALTHCARE, LLC., RANBAXY PHARMACEUTICALS CANADA INC., APOTEX, INC. AND TEVA CANADA LIMITED DEFENDANTS/APPLICANTS Counsel: E.F. Anthony Merchant, K.C. for the respondents

and Anthony Tibbs Scott Maidment and Jennifer Dent for the applicant, Teva Canada Limited Rob Carson for the applicant, Apotex, Inc. Sean Sinclair and for the applicant, Jonathon McLean Ranbaxy Pharmaceuticals Canada Inc. Jason Mohrbutter, K.C. and for the applicants, W. Grant Worden Bayer Inc. Corporation, Bayer Healthcare Pharmaceuticals Inc, Bayer Healthcare LLC Amanda Quayle, K.C. and for the applicants, Gordon McKee Janssen-Ortho Inc., Johnson & Johnson Inc., Johnson & Johnson, Johnson & Johnson Pharmaceutical Research & Development, LLC CORRIGENDUM to JUDGMENT DATED December 22, 2023 KLATT J.

January 4, 2024 [ 80 ] The first sentence in para. 8 should read as follows: On April 10, 2013, the plaintiffs applied ex parte for an order appointing a judge to hear the certification application pursuant to ss. 4(2) (

a) of The Class Actions Act , SS 2001, c C-12.01 [ CAA ] and Rule 79 of the former Queen’s Bench Rules . [ 81 ] The second sentence in para. 11 should read as follows: Bayer’s then counsel, Robert W. Leurer, Q.C. (as he then was), responded in the affirmative, subject to reserving the right to contest jurisdiction of the Saskatchewan court. [ 82 ] Paragraph 22 should read as follows: The defendants apply to have the claim struck for delay pursuant to Rule 4-44 of The King’s Bench Rules . Rule 4-44(

a) provides that on application, the court may “dismiss all or any part of a claim if the Court is satisfied that the delay is inordinate and inexcusable and that it is not in the interests of justice that the claim proceed". [ 83 ] The first sentence in para. 54 should read as follows: On behalf of Teva, Deborah Pouliot swore an affidavit on August 27, 2020 deposing that it was not until 2020 that Teva received any affidavits in connection with this matter and, even then, they only received two. [ 84 ] Paragraph 70 should read as follows: In terms of the public interest component of the third step in the analysis, Richards J.A. in ICC at para 45 , noted that there may be implications or significance that reach beyond the specific interests themselves. [ 85 ] Paragraph 76 should read as follows: I am aware that on October 22, 2020, Greg McLean filed an affidavit on behalf of the plaintiffs.

He deposed that he was willing to act as a representative plaintiff because he understood the plaintiff, Louise Joy Allison, had decided to step down as the representative plaintiff. Although I am not casting doubt on Mr. McLean’s sincerity, I see this as a “Hail Mary” attempt, made after the applications to strike were made, to keep an inordinately delayed action alive. It does not tip the balance for me in favour of allowing the claim to proceed.

J. B.L. KLATT