Ahlquist v. GlaxoSmithKline Consumer Healthcare Inc. et al., 2015 SKQB 192

• Judge: Elson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 26, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 192;(2015), 478 Sask.R. 12 (QB)

Ahlquist v. GlaxoSmithKline (2015), 478 Sask.R. 12 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.045

Hedvig Ahlquist (plaintiff) v. GlaxoSmithKline Consumer Healthcare Inc., Procter and Gamble Inc. and Procter and Gamble Company D (defendants)

(2010 Q.B.G. No. 1671; 2015 SKQB 192)

Indexed As: Ahlquist v. GlaxoSmithKline Consumer Healthcare Inc. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Elson, J.

June 26, 2015.

Summary:

The plaintiff commenced a putative class action claiming that she and members of the proposed class had sustained injury, loss and damage as a result of ingesting zinc contained in denture adhesives. A certification application was served and filed with two supporting affidavits. One was from a neurologist (Dr. Keyes) who opined on the impact of zinc toxicity and the possible connection with the use of denture adhesives containing zinc. The other was by the plaintiff and set out circumstances related to her use of denture adhesives and the medical conditions she had experienced. Pending the certification motion, the defendants brought a motion seeking disclosure and production of clinical notes and records pertaining to the plaintiff. They also sought an order granting leave to cross-examine both deponents on their respective affidavits.

The Saskatchewan Court of Queen's Bench granted a limited disclosure and production order. The court granted leave to cross-examine both deponents, but on the understanding that the cost associated with Dr. Keyes' time to prepare for and attend the cross-examination would be covered by the defendants.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - [See first Practice - Topic 210.5 ].

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - The plaintiff commenced a putative class action claiming that she and members of the proposed class had sustained injury, loss and damage as a result of ingesting zinc contained in denture adhesives - Pending the certification motion, the defendants brought a motion seeking disclosure and production of clinical notes and records pertaining to the plaintiff - The Saskatchewan Court of Queen's Bench noted that the plaintiff had not included causation in the list of proposed common issues in the certification application - However, the court stated that "by including a claim for negligence in the claim, even without a reference to the constituent elements of the tort, the plaintiff necessarily engages causation considerations. In and of itself, that does not necessarily translate into causation becoming one of the common issues. However, para. 45 of the statement of claim specifically raises the classic 'but for' assertion and does so in respect of the entire class. As such, I do not believe that it is either fair or appropriate, at this stage of the proceeding, to foreclose the possibility of causation being identified as a possible common issue at the certification hearing." - See paragraphs 89 and 90.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - The Saskatchewan Court of Queen's Bench reviewed case law respecting the scope of pre-certification disclosure in class actions and noted that the conclusions in the cases differed - The court rejected the plaintiff's argument that this reflected a trend away from pre-certification disclosure - "None of these decisions stepped away from the basic principle that pre-certification disclosure and production must generally be relevant to the inquiry into the applicable certification requirements, subject only to considerations of overall fairness and, more recently, proportionality." - See paragraph 85.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - The Saskatchewan Court of Queen's Bench reviewed case law respecting the scope of pre-certification disclosure in class actions - See paragraphs 43 to 85 - The court stated that "... if there is a common thread through the various approaches, I think it comes down to the court considering a possible two-step question ... . In the first step, a court might assess the probability that the eventual certification inquiry will be assisted by the disclosure and production of the information sought. Obviously, this would require an assessment as to whether the information assists in establishing, or not, one of the four relevant certification requirements. If the answer is a definitive yes, the order for disclosure and production would generally follow, subject to proportionality considerations ... . If the answer is less conclusive, or even if the answer is no, the second step is triggered. At this step, a court might still grant the order if it is seen as necessary to protect the fairness of the proceeding and to afford the defendant an opportunity to meet the plaintiff's case on certification. In considering the question of fairness, and without limiting other factors, a court could properly consider the degree to which the information is unlikely to assist the certification inquiry, the apparent propriety (or not) of the defendant's motion for disclosure and considerations of proportionality." - See paragraph 87.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - The plaintiff commenced a putative class action claiming that she and members of the proposed class had sustained injury, loss and damage as a result of ingesting zinc contained in denture adhesives - A certification application had been served and filed, along with two affidavits in support - One was from a neurologist (Dr. Keyes), who opined on the impact of zinc toxicity and the possible connection with the use of denture adhesives containing zinc - The other was by the plaintiff, who set out circumstances related to her use of denture adhesives and the medical conditions she had experienced - Pending the certification motion, the defendants sought an order granting leave to cross-examine both deponents on their respective affidavits - The Saskatchewan Court of Queen's Bench granted the order, but on the understanding that the cost associated with Dr. Keyes' time to prepare for and attend the cross-examination would be covered by the defendants - See paragraph 100.

Practice - Topic 3687

Evidence - Affidavits - Use of - Cross-examination - [See fourth Practice - Topic 210.5 ].

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - [See Practice - Topic 4781 ].

Practice - Topic 4781

Discovery - Physical or psychological examination - Production of medical reports - The plaintiff commenced a putative class action claiming that she and members of the proposed class had sustained injury, loss and damage as a result of ingesting zinc contained in denture adhesives - A certification application had been served and filed with two supporting affidavits - One was from a neurologist, who opined on the impact of zinc toxicity and the possible connection with the use of denture adhesives containing zinc - The other was by the plaintiff, and set out circumstances related to her use of denture adhesives and the medical conditions she had experienced - Pending the certification motion, the defendants brought a motion seeking, inter alia, disclosure and production of clinical notes and records pertaining to the plaintiff - The Saskatchewan Court of Queen's Bench held that at least one of the relevant certification criteria (i.e., causation) justified disclosure and production of some of the requested records - Alternatively, the records should be disclosed on the basis that it would be unfair to the defendants for the court to do otherwise - However, it was not fair or appropriate to leave the disclosure as open-ended as the defendants' motion had requested - There was not likely to be any material relevant to causation in the records relating to the extraction of the plaintiff's teeth and the reasons therefore - It was appropriate for the production and disclosure to be confined to medical records going back to September 2007 (two years before the first experience of symptoms) and to denturist records going back to the date when a denturist was first consulted about her teeth extraction - See paragraphs 88 to 99.

Counsel:

Anthony Tibbs, for the plaintiff;

Robert Leurer, Q.C., and Mary Thomson, for the defendant, GlaxoSmithKline Consumer Healthcare Inc.;

Paul Prosterman and Randy Sutton, for the defendants, Procter and Gamble Inc. and Procter and Gamble Company.

This motion was heard by Elson, J., of the Saskatchewan Court of Queen's Bench, who delivered the following fiat on June 26, 2015.