) ) JOANNE MARTIN, CORRINE MIDDLETON, BERNARD VAN KERREBROECK v. DON MARTIN, 2013 ONSC 1169

CITATION : Martin v. Astrazeneca Pharmaceuticals PLC, 2013 ONSC 1169 DIVISIONAL COURT FILE NO.: 300/12 DATE: 20130221 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT ASTON, HERMAN AND LEDERER JJ. BETWEEN: ) ) JOANNE MARTIN, CORRINE MIDDLETON, BERNARD VAN KERREBROECK and DON MARTIN Plaintiffs (Appellants) – and – ASTRAZENECA PHARMACEUTICALS PLC, ASTRAZENECA PHARMACEUTICALS, LP and ASTRAZENECA CANADA INC. Defendants (Respondents) )) )) )) )) )))))))) James C. Orr , Megan B. McPhee and Aris Gyamfi, for the Plaintiffs (Appellants) Frank J.

McLaughlin , Sarah Chesworth and Brandon Kain for the Defendants (Respondents) ) ) ) HEARD at Toronto: February 21, 2013 ASTON J. (ORALLY) [ 1 ] The plaintiffs appeal the May 7, 2012 decision of Horkins J. which denied certification of a proposed class proceeding. They also seek to appeal the costs decision on the motion, which awarded approximately $700,000 in favour of the defendants. [ 2 ] Seroquel is an anti-psychotic drug approved by Health Canada for the treatment of schizophrenia and bi-polar disorders. It is also widely prescribed for unapproved or “off label” uses such as sleep disorders and depression.

It is widely regarded as an effective drug, but the defendants, who developed and market the drug, acknowledged that there is some evidence that it can cause weight gain and/or diabetes. The plaintiffs allege the defendants concealed these risks from consumers and from the regulator, Health Canada, or at the very least gave inadequate and untimely product warnings. [ 3 ] Justice Horkins dismissed the plaintiffs’ motion for certification on the basis that the Second Amended Fresh as Amended Statement of Claim (“Claim”) failed to disclose a cause of action as required by s. 5(1) (

a) of the Class Proceedings Act , 1992, S.O. 1992, c. 6 ( “CPA” ). Though unnecessary for the disposition of the motion, Justice Horkins also went on to find that the appellants had failed to provide sufficient evidence to meet the remainder of the tests set out in each of ss. 5(1) (

b) through (

e) of the CPA . In a separate decision, the Motions Judge awarded the defendants costs, comprised of $475,000 for fees, and approximately $169,000 for disbursements (primarily expert fees) plus the applicable GST and HST. [ 4 ] This appeal comes to the Divisional Court under s. 30(1) of the CPA . The appeal of costs requires leave, which was not seriously opposed by the respondents.

[5] The standard of review with respect to s. 5(1)(

a) of the CPA is correctness. See Attis v. Canada (Minister of Health), 2008 ONCA 660 , 2008 93 O.R. (3rd) 35 at para. 23 (C.A.). [6] At paragraphs 99 through 192 of the Reasons, the Motions Judge articulated the correct legal test under s. 5(1)(a), thenconcluded that the plaintiffs had failed to clearly and properly plead the essential facts required to establish a cause of action. She alsofound that the pleading was fatally defective in other respects. We endorse her Reasons. We agree with her analysis and conclusion. [7] The standard of review with respect to ss. 5(1)(

b) through (

e) calls for deference. The main thrust of the appellants’submission is that the Motions Judge erred by engaging in a “merits based” approach and placed too high an evidentiary burden on theplaintiffs. [8] Counsel for the plaintiffs does not challenge what the Motions Judge had to say in paragraphs 21 to 25 of her Reasons,concerning the purpose of evidence on a certification motion, the description of the low threshold of the plaintiffs’ evidentiary burden orthe court’s limited function as a gate keeper.

However, he submits that the Motions Judge did engage in an impermissible weighing ofevidence, rather than limiting her consideration to whether the plaintiffs had established the “scintilla of evidence” required to meet theirthreshold burden. [9] We do not agree that the Motions Judge erred in this fashion. It is evident from the Reasons that she closely examined theplaintiffs’ own evidence. She concluded that, on its own, it did not satisfy the “some basis in fact” test. It was not an error to closelyscrutinize the plaintiffs’ evidence, as for example by reference to the cross examination of their expert Dr.

Wirshing. In our view, theMotions Judge did not expand her consideration of the evidence beyond the permissible boundaries that she had identified. [10] The plaintiffs have failed to demonstrate any basis upon which we would interfere with the conclusions of the Motions Judgewith respect to ss. 5(1)(

b) through (

e) of the CPA. [11] Counsel for the plaintiffs has asked this court to permit a further amendment of the Statement of Claim in the event that we donot allow the appeal and certify the proceeding as a class action. We decline to do so. [12] The Motions Judge recognized the low evidentiary threshold the plaintiffs needed to meet on a certification motion and foundthat there was no evidence to support certain essential elements. A bald allegation is not enough. Without some evidence there isnothing to amend.

Furthermore, as noted in paragraph 191 of the Reasons, the plaintiffs did not seek permission to further amend theirClaim from the Motions Judge. Their Notice of Motion to this Court does not ask for that as alternative relief.

Moreover, there is nosuggestion as to exactly how the plaintiffs would amend the latest version of the Statement of Claim and it is inappropriate for this Courtto grant such relief carte blanche. [13] The standard of review on a cost decision is that it will only be set aside if the judge erred in principle or was “clearly wrong”. [14] The plaintiffs submit that the Motions Judge erred in principle by failing to adequately take into account the chilling effect ofher costs order and its implications regarding access to justice in class proceedings.

They also submit that she erred in principle byincreasing the costs payable on the basis on an Indemnity Agreement. [15] We do not accept those submissions.

A careful reading of paragraph 24 of the Reasons on the costs award makes it plain thatthe indemnity agreement was only taken into account to refute the plaintiffs’ submissions on the access to justice issue and not as areason to impose a liability for costs or to increase those costs. [16] In the end, the Motions Judge did reduce the $1.2 million dollars in fees claimed by the defendants to $475,000. [17] In our view, the Motions Judge set out the appropriate legal principles with respect to costs on a motion to certify a classproceeding and exercised the broad discretion afforded to her in a balanced fashion.

Though the costs award apparently sets a new benchmark in favour of a defendant successfully resisting a certification motion, there is no basis upon which to interfere with the award. [18] The appeals are therefore dismissed. [19] I have endorsed the Record on behalf of the panel: “These appeals are dismissed for oral reasons given and recorded. Costsin favour of the defendants are fixed at $30,000 all inclusive.” ASTON J. HERMAN J. LEDERER J.

Date of Reasons for Judgment: February 21, 2013 Date of Release: March 8, 2013 CITATION : Martin v. Astrazeneca Pharmaceuticals PLC, 2013 ONSC 1169 DIVISIONAL COURT FILE NO.: 300/12 DATE: 20130221 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT ASTON, HERMAN AND LEDERER JJ. BETWEEN: JOANNE MARTIN, CORRINE MIDDLETON, BERNARD VAN KERREBROECK and DON MARTIN Plaintiffs (Appellants) – and – ASTRAZENECA PHARMACEUTICALS PLC, ASTRAZENECA PHARMACEUTICALS, LP and ASTRAZENECA CANADA INC. Defendants (Respondents) ORAL REASONS FOR JUDGMENT ASTON J. Date of Reasons for Judgment: February 21, 2013 Date of Release: March 8, 2013