SUPREME COURT Citation: Mitchell v. Bayer Between: David Mitchell and v. Bayer Inc., Monsanto Company, Monsanto Decision — Sequencing Judge: The Honourable Justice Heard: May 7, 2020, in Halifax, Counsel: Raymond F. Wagner, William McNamara, OF NOVA SCOTIA Inc., 2020 NSSC 172 Date: 20200520 Docket: Hft No. 489864 Registry: Halifax Gretta Hutton Plaintiffs Canada ULC, Monsanto Canada Inc. Defendants of Motions Denise Boudreau Nova Scotia QC, for the Plaintiffs for the Defendants
By the Court: [1] This proposed class action was filed proceeded to a certification hearing. The Court sequencing of upcoming motions in this matter; intended stay motion by the defendants for the certification motion (as requested by the as the certification motion (as requested by me with fulsome written and oral submissions. assistance. [2] In general terms, the pleadings allege and distribute the herbicide “Round-Up”, breached proposed class(es). The proposed plaintiffs causes Non-Hodgkin’s Lymphoma and that risks of such exposure. The proposed plaintiffs class, comprised of two subclasses, a “primary illness) and a “family law class” (family members [3] 1am advised that since November 2018, proposed class proceedings have been commenced Page 2 on July 4, 2019. The case has not yet has been asked to determine the more precisely, whether the abuse of process should be heard before defendants) or heard at the same time the plaintiffs). Counsel have provided I thank them both for their that the defendants, who manufacture their duties to members of the allege that exposure to “Round-Up” the defendants failed to warn of known seek certification of a national class” (those diagnosed with the of the primary class). eleven similar (or identical) in other jurisdictions in Canada,
against these same defendants. Further, the actions seeking national certification (while minus Quebec). British Columbia has two only. Alberta has seen the filing of two actions consolidated). The central issues in all of these are essentially the same: whether “Round-Up” defendants negligently failed to disclose that [4] As a result, the defendants wish to bring proceeding, on the basis that it is duplicative provinces that seek certification on behalf allegations, and is thereby an abuse of process. [5] As I have already noted, the present class action. In point of fact, as I understand any province have yet had a certification hearing, more advanced in the process. In Saskatchewan, already made a motion for a stay of proceedings present matter). That motion was dismissed. time plaintiff counsel have chosen to willingly consolidated Ontario proceeding.Page 3 present action is the seventh of nine another action seeks a national class proposed actions, one national, one BC and Ontario has seen four (now proposed class actions, I am told, is a carcinogen and whether the risk. a motion for a stay of the present of other proceedings in other of the same classes for the same matter has not yet been certified as a it, none of the actions proceeding in although some are somewhat for example, the defendants have (for the same reasons as in the However, I am advised that since that agree to a stay in favour of a
[6] In British Columbia the defendants am advised, the motion is yet to be heard. Columbia has not yet definitively resolved namely: should that motion be heard before [7] 1 am told that in Quebec there has been of the Ontario proceeding as well. [8] In Ontario the matter is also proceeding. have now been consolidated as one, and the certification hearing. I am advised that motions defendants there as well, although their nature [9] This brings me to the matter at hand. the two pending motions here in Nova Scotia have asked that I rule on that issue. [10] It is agreed by the parties, generally normally should be heard in a proposed class Having said that, it is also generally agreed motions are matters within the jurisdiction Page 4 have made that same stay motion and, I I am also advised that the court in British the question that I wrestle with now, certification, or at the same time. agreement to stay matters in favour A number of competing Actions court has established a timeline for the may be made by counsel for the and timing are not yet formalized. The parties disagree as to the timing of (abuse of process! certification) and speaking, that the first motion that action is the certification motion. that the scheduling and sequencing of of the Court and at the discretion of the
Court (NS Civil Procedure Rules; Class Froceedings 15). In other words, either option is theoretically [11] The defendants argue that their motion proceed first. In their view, this is the more specifically with an abuse of process motion, efficient, timely and cost-effective way of [12] The proposed plaintiffs disagree. They “first order of business”, and that a pre-certification delays and costs to the parties, and will not They seek for the court to hear both motions [13] I have been provided with a number debates. Quite frankly, there are persuasive and at times we see different results in fairly reflection of the fact that in most of these cases wrong answer to the question; each judge on the best information at hand and his/her will be no different.Page 5 Act S.N.S. 2007, C-28, ss. possible. for stay/abuse of process should appropriate procedure when dealing and that such would be the more proceeding. submit that certification should be the stay motion will increase promote the efficient use of court time. together. of decisions where courts faced similar cases on both sides of the argument; similar cases. I presume that this is a there was no definitive right or simply exercised his/her discretion based best judgment. The present decision
C’ases where the motion to stay was heard [14] The defendants note that in the related Bayer), the motion to stay proceedings was to me whether the sequencing of motions The Court stated: [101 Second, I agree with counsel for the await a certification hearing before considering class action as an abuse of process. See especially: authorities cited there. (Gadd v. Bayer decision Feb 202020) [15] The defendants note that in class action for various other relief are often deferred until case for motions alleging abuse of process. BCE v Gil/is 2015 NSCA 32 from our jurisdiction, (Once again, however, I note that the sequencing commentary in that case, and may not have [16] Cases where the motion to stay was Johnson v. Equfax 2018 SKQB 305 where 7 There is clear authority to allow this separately and in advance of the certification American PLC, 2016 SKQB 53 (Sask. Q.B.) 2017 SKQB 146 (Sask. Q.B.) at paras. 8-9; Page 6 in advance Saskatchewan action (Gadd v. heard in advance (although it is unclear was the subject of debate in that case). defendants that it is not necessary to an application to stay a proposed Johnson, at para. 7, and of Justice Mitchell (SKQB) dated cases, while it is true that motions after certification, such is not the The defendant put forward the case of as an example of such a case. of motions was not the subject of been debated.) heard in advance include for example the court noted: type of application to be heard hearing (Ammazzini v.Ang!o at para. 21; T.G. v. Saskatchewan Spicer v. Abbott Laboratories Ltd
2017 SKQB 271 (Sask. Q.Bj[Spicer]; and Q.B.) at pam. 24, [2009] 7 W.W.R. 137 (Sask. 8 Specifically I note Justice Barrington-Foote’s 28 In this case, I have all of the decision. That is so due to the nature application is based on the fact that and disposed of, including, in particular, Chariton CA (Chariton v. Abbott Laboratories 9 WWR 427]. I have the relevant pleadings, the Quebec, Ontario and British Columbia presented evidence intended to address methodology which resulted in the the nature of the harm that may have members. The plaintiff has not identified form part of the certification record issue. Further, if the defendants succeed, T.G. — will dispose of the entire action. 29 In these circumstances, it is application now. 9 1 find that I have all the facts relevant me. Therefore, it is appropriate to decide Equifix’s advance of the certification motion. [17] In Bear v Merck Frosst Canada & I. These are prospective class actions, commenced 5.5. 2001, c. C-12.01, in relation to the defendants’ matter before me in each action is the application the statement of claim. Usually such an application hearing of the application for certification certification application should be the first commenced under the Act: Alves v. Sunquest, (Sask. Q.B.). Where the designated judge though, an earlier application may be heard. 2. In the circumstances of this case, I directed would be heard earlier than the certification include the action that culminated in Wuttunee SKCA 43, [2009] 5 W.W.R. 228 (Sask. C.A.). class action in the Saskatchewan Court of defendants in relation to their product Vioxx. in which this court certified the action first Page 7 Brooks v. R. 2009 SKQB 54 (Sask. Q.B.). comments in Spicer: evidence necessary to make the of the issue. The defendants’ other proceedings were commenced the denial of certification in Ltd. 2015 BCCA 26 [2015] chronology and decisions of courts. The plaintiff has the lack of evidence relating to a decision in Chariton C4, and discloses been suffered by potential class any other evidence that might that would be helpful in deciding this this application — unlike that in fair and efficient that I decide this to the abuse of process issue before application for a stay in Co. 2010 SKQB 284: under the Class Actions Act product Vioxx. The primary of the defendants to strike out would be deferred to the because, as a general rule, the application heard in an Action 2009 SKQB 77, 335 Sask. R. 164 finds a compelling reason for doing so, that the defendants’ applications application. Those circumstances v. Merck Frosst Canada Ltd., 2009 That action, too, was a prospective Queen’s Bench against these Afler a lengthy certification process, as a regular class action and then as a
multi-jurisdictional class action, the Court order. Subsequently Mr. Bear, Mr. Gumsey these actions. The defendants have responded the actions. 3. In determining that the defendants’ applications certification hearing, I noted that: (a) The defendants already have been Saskatchewan with respect to Vioxx action; (b) The nature of these actions and being a proposed class action against purchased or ingested Vioxx; and (c) In a prospective class action, the claim to certification hearing most inexpensively. 4. In these circumstances I concluded that defendants to participate again in the certification applications are heard. In short, I concluded a compelling reason for hearing the defendants’ hearing of the certification application... [18] In Fantov v Canada Bread Company 70 In Brooks, Justice Zarzeczny acknowledged circumstances where it is appropriate to decide jurisdictional class action for abuse of the certification. I agree with that proposition.. [19] In Baxter v. Canada (Attorney General) the third parties wished to being certain motions (including a motion to challenge the court’s outside of Ontario, as well as a motions to parties). The Court noted:Page 8 of Appeal quashed the certification and Mr. Rybchinski commenced with their applications to strike out would be heard earlier than the involved in extensive litigation in in the context of a prospective class of the Wuttunee action is the same, the defendants by those who transition from their statement of often does not happen quickly or it would be unfair to require the process before their that the circumstances demonstrated applications earlier that the Ltd 2019 BCCA 447: that there may arise an application to stay a multi court’s process in advance of [2005] O.J. No. 2165 (Ont. S.C.J.), in advance of certification jurisdiction regarding third parties dismiss the action by certain third
14 Admittedly, there are instances where, Moyes, there can be exceptions to the rule be the first procedural matter to be heard make an exception where the determination certification motion would clearly benefit objective ofjudicial efficiency, such as in Rule 21 or summary judgement under Rule positive effect of narrowing the issues, focusing forward. An exception may also be warranted time sensitive or necessary to ensure that (authorities omitted) 15 However, there is an important distinction motions that are brought by the defendant parties. In many cases, Rule 20 and 21 motions potential to render the certification motion prior to certification, thereby ffirthering the 20 or 21 motions brought by third parties parties do not have the same potential to render unnecessary.... Cases where the stay motion was heard at [20] The proposed plaintiffs argue that the held in conjunction with the certification hearing. [211 They note firstly the general over arching should be the first motion heard. They also interlocutory appeal, and “piecemeal” litigation the defendant’s motion was heard first. The 77 noted (at para. 32): In my view to obtain an exception to the general should be the first motion heard on a class compelling reason for the court to treat matters Page 9 as indicated in both Attis and that the certification motion ought to and determined. It may be appropriate to of a preliminary motion prior to the all parties or would flrnher the relation to a motion for dismissal under 20. Such motions may have the the case and moving the litigation where the preliminary motion is the proceeding is conducted fairly. between Rule 20 and 21 and those that are brought by third brought by the defendant have the unnecessary if they are determined objective ofjudicial economy. Rule in relation to claims against those third the certification motion same time as certification defendant’s stay motion should be rule, that a certification motion note the significant risk of delay, that, in their view, would result if Court in A/yes v. Sunquest 2009 SKQB rule that the certification motion action, the defendants must provide a sequentially...
[22] In the case of motions other than those such are almost always heard after certification. NLTD 166, the defendant wanted to deal with motion to add other defendants. The Court should be heard before certification or after: 38 1 agree with the position that where potential to dispose of the litigation or more the Class Actions Act, then it should be heard 39 That is not the case in the present these two applications to proceed prior to certification hearing stage of the intended rabbit hole wherein one particular application 40 1 can find no “discemable advantage” prior to the certification hearing... [23] A motion to add third party was deferred (Gay v. Regional Health Authority 2014 NBQB party notice was also deferred until after certification Healt4) [2005) O.J. No. 1337). [24] In Champagne v. Roman Catholic Episcopal NSSC 395, the defendants sought hearing certification. Their motions sought the striking claims, and the striking of some of the evidence certification.Page 10 seeking a stay for abuse of process, In Anderson v. Canada 2008 a Demand for Particulars, as well as had to determine whether these motions a preliminary application has the efficiently address the objectives of prior to the certification hearing. matter and I am convinced that to pennit the certification hearing will cause this class action to spiral down a timeless begets another... to proceeding on these applications until after the certification motion 229). A motion to strike a third (Attis v. Canada (Minister of Corporation of Canada, 2019 dates for motions in advance of and/or staying of some of the filed on the motion for
[25] The Court in Champagne considered Ward Branch, Class Actions in Canada, 2” Limited, 2019)) s. 5.200) as articulated by Canada Foundation 2010 ONSC 146, as to considered in these cases: (a) Whether the motion will dispose substantially narrow the issues; (b) Likelihood of delays and costs (c) Will the outcome promote settlement; (d) Will the motion give rise to interlocutory (e) The interests of judicial economy (f) Whether its earlier scheduling determination” of the proceeding. [26] The Court in Champagne concluded would not dispose of proceeding, since even defendants; the motion to strike was, in fact, (this factor seems to have been the most relevant potential for delay existed if motion proceeded prejudice in hearing these motions at same [27] In Douez v. Facebook Inc 2012 BCSC the intended motion by the defendant, seeking Page 11 the so-called “Branch” factors (from ed (Toronto; Thomson Reuters Canada Strathy J. in Cannon v. Fundsfor the non-exhaustive list of factors to be of the entire proceeding or will associated with motion; appeals and delays; and efficiency; would promote the “fair and efficient the following in its case: the motion if successftil there were still 2 more duplicative of the test for certification to the courts decision); the first; and there would be no time as certification. 2097, the Court considered whether a declaration that Court decline
jurisdiction (forum non conveniens), should The court noted the following concerns: 11. Both parties agree that the policy underlying certification application should be the first of Canada’s caution against “litigation by C’onsznners’ Gas Co. 2004 SCC 25 (S.C.C.) 12. The Garland case was an example procedural motions are heard. That case involved of Canada and 10 years before it concluded. [28) In that context, the Court voiced a number matter the outcome of the jurisdictional motion, the unsuccessful party, which would lead to certification motion first might mean some appreciably more than the alternative (appeals [29] The Court also saw some overlap between and the test for certification under the Class concluded that it wanted a full evidentiaiy 51 It is not appropriate for me to say too back before me, but I simply want to make matters I would find it more helpful to have [30) In Gill v. Yahoo! Canada Co. 2018 BCSC bring a motion for stay of proceedings, as theforum conveniens of Ontario. It sought Page 12 be heard before or after certification. the general rule that the application reflects the Supreme Court installments”, as stated in Garland v. at para. 90. of what can happen when separate two trips to the Supreme Court of further concerns: that no there would likely be an appeal by delay. Also, while holding a cost to the parties, such would not be etc.) theforum non conveniens issue Proceedings Act; it therefore record before making either decision: much given these issues will come it clear that as a judge hearing the them heard together. 290, the defendant wished to it alleged that the plaintiff had agreed to to have this motion heard before
certification. The Court refused to do so, noting of the matter even if the defendant was successful, furthermore, that the Court could not be entirely overlap with certification issues. The Court motion and the motion for certification heard [31] In Reynolds v. Hershey Canada 2019 action, the plaintiff put forward the claim that products as a result of child slave-labour in representative plaintiff, on behalf of all consumers responded with their intention to file a motion had no cause of action. The Court was again motion should be heard prior to certification. [32] The Court noted: 5 The way it has been framed by Defendants’ cause of action will not be a minor procedural substantive attack on the entire basis of the Defendant points out that previous courts will potentially dispose of an entire action determining whether it should proceed as for Canada Foundation 2010 ONSC 146 (Ont. Nordheimer J. (as he then was) stated in Moves O.J. No. 4455 (Ont. S,.C.J.), that a defendant’s reasonable cause of action is an obvious one certification motion.Page 13 that the motion would not dispose because of likely appeals; sure that there would not be therefore decided to have the stay together. ONSC 1776, another proposed class the defendant manufactured food Africa. He sued as a proposed of said products. The defendant to stay, arguing that this plaintiff asked to determine whether that counsel, the challenge to the motion. Rather, it is envisaged as a Plaintiffs claim. Counsel for the have noted that whether or not a motion is an important consideration in a preliminary matter: Cannon v. Funds S.C.J.), at para. 15. In fact, v. Fortune Financial C’orp. [2001] motion that the claim discloses no that should proceed in advance of a
6 On the other hand, Winkler J. (as he (Minister ofHealth) [2005] O.J. No. 1337 of principle the certification motion should proposed class action. He went on to say, will predictably generate more motions and issues together in the certification motion. counsel’s comment that the no-cause-of-action make in a Rule 21 motion is a precise reflection under s. 5(l)(a) of the CPA, and that the Defendant addressing the question in the latter context. 7 The Supreme Court of Canada addressed Consumers’ Gas Co. [2004] 1 S.C.R. 629 phrase, the Court admonished that “litigation as it does a disservice to the parties and to as Defendant’s counsel points out, the Court hive off a portion of the case for a later date policy concern is the same as that raised here. S If the cause of action is addressed inevitably proceed along an independent line has reached an end will the parties be in a certification stage (unless some other preliminary Defendant’s counsel has already suggested to the two foreign Defendants). I am reluctant which will lead to that type of piecemeal approach 9 Under the circumstances, from a procedural for the Defendant not to bring a Rule 21 motion. Defendant’s challenge to the Plaintiffs cause 5(l) (a) of the CPA in response to the Plaintiffs [33] In a very recent case, Kirsh v. Bristol-Myers Court noted that hearing both motions together of a complete record: 9 A stay of proceedings is available under Procedure and as a matter of the court’s inherent of power. But this remedy is discretionary: Page 14 then was) observed in Auis v. Canada (Ont. S.C.J.), at para. 7, that as a matter be the first thing a court hears in a at para. 9, that where other challenges appeals, it is best to address all of the This approach reflects Plaintiff argument that the Defendant will of the argument it will make compromises no rights by this issue in Garland i’. (S.C.C.), at para. 90. In a memorable by installments” should be avoided, the administration ofjustice. Although, there was referring to a proposal to rather than a motion to dismiss, the in a stand-alone motion, it will almost of appeal. Only when that process position to proceed with the challenge comes along — there may be a jurisdictional challenge to schedule this case in a way to the litigation. point of view it is preferable Rather, it is best for the of action be made under section motion for certification. Squibb 2020 ONSC 1499, the would give the Court the advantage Rule 21.01(3)(d) of the Rides of Civil jurisdiction to prevent an abuse Toronto (City) v. CUPE, Local 79
[2003] 3 SCR 77, at para. 35. In order to properly discretion, it is important to filly understand aspects. I will therefore proceed with the returning to evaluate the Defendants’ request Conclusion [34] As I indicated at the start, the question to be entirely one of discretion, and I do not answer. There are arguably very good reasons other. I also do not see any significant prejudice [35] Looking at the issue through the lens obviously if the defendant’s stay motion were entire proceeding in this jurisdiction (or, perhaps, only one possible scenario. The stay motion Saskatchewan), which would only delay the result could engender an appeal and a entirely certification. I note that the defendant has undertaking not to appeal, but that is speculative Branch factor #2 as well (the likelihood of motion, including interlocutory appeals). [36] I see no effect on settlement in either Page 15 weigh that exercise of the certification motion in all of its certification motion in its entirety before for a stay. of the sequencing of motions appears see any obviously right or wrong for proceeding in one way or the to either party in either option. of the “Branch” factors, I note: first, successful, it would dispose of the narrow the issues); but that is could be unsuccessful (as it was in matter further. Alternatively, either separate track of litigation, before suggested the possibility of the parties’ at this point. This addresses delays and costs associated with option (Factor #3).
[37) In terms of the interests ofjudicial economy either option has inherent and possible benefits of having the stay motion first has some attractiveness successful, the matter might be concluded. but one possible outcome. [38] In the final analysis, that factor, as well promote the “fair and efficient determination” my decision here. In my view, the most efficient resources, is to hear these matters together. [39) The defendant’s motion to stay this impactflul one, with potential and significant believe that in order to make the right decision court time efficiently, I need to have a full Douez and Kirsh. [40] The Class Proceedings Act provides 7 (1) The court shall certify’ a proceeding Section 4, 5 or 6 if, in the opinion of the court, (a) the pleadings disclose or the notice of Page 16 and efficiency (Factor #4), and risks. At first blush, the notion since, were the motion However, as I have mentioned, that is as the last (i.e. which option would of the proceeding) most influence and fair use of court time and proceeding is a very important and repercussions to all parties involved. I on that motion, and also to use record before me, as did the Courts in the following: as a class proceeding on an application under application discloses a cause of action;
(b) there is an identifiable class of two or representative party; (c) the claims of the class members raise issue predominates over issues affecting only [41] The Act also provides that a certification things, the nature of the claims or defences relief sought by the class, and the common [42] As we currently stand, the proposed yet been put forward. We do not know the proposed classes it has put forward. We do for either of these classes. We also do not certification, since of course at this point, they know what will be proposed. [43) It seems to me that these are very important thlsome fleshing out, before I could properly of process on the basis that “the same” litigation [44] I acknowledge that I am not in possession and that if it were filed, presumably there would Page 17 more persons that would be represented by a a common issue, whether or not the common individual members; order shall state, among other asserted on behalf ofthe class, the issues. plaintiffs certification motion has not reasoning or justification for the two not know the proposed common claims, know the defendant’s position as to cannot know either, as they do not parts of the record that need a consider a motion for a stay for abuse is taking place elsewhere. of the defendant’s stay motion, be some evidence put before me
there. But it would not be the full record on proceeding, which in my view, I would need. [45] It also seems to me that, while I cannot likely overlap between the issues to be discussed motion and this certification motion. Perhaps should be certified in Nova Scotia overlaps should be stayed in favour of another province. [461 Therefore, while I acknowledge that me that the best use of our time and resources same time. I would then have the entire record best decision possible for all parties involved, the same conclusion reached by the courts Kirsh cases. I find their reasoning on this issue [47] Could counsel please provide me with “milestones” and filings for these motions, know, due to the COVID-l9 situation, the reduced hearing dates, but that is in a state further once you provide me with your proposed Page 18 this request for a class action know for sure, I believe there is very and decided at both this stay the issue of whether a national class with whether the Nova Scotian action both options are possible, it seems to is to have both motions heard at the at my disposal in order to make the on both motions. This is essentially in the Facebook, Yahoo, Hershey, and entirely persuasive. their proposed schedule of both evidence and submissions. As you Court is presently in a situation of of constant evolution. We will discuss timelines.
[48] I thank you both for your assistance Page 19 and continued attention to this.
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