Graham et al. v. Hoffmann-La Roche Ltd. et al., 2014 SKQB 304

• Jurisdiction: Saskatchewan
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Judge: Mills, J.
• Citation: 2014 SKQB 304,(2014), 455 Sask.R. 191 (QB)
• Date: 19 September 2014

Graham v. Hoffmann-La Roche (2014), 455 Sask.R. 191 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. OC.050

Christopher Robin Graham and Tanya Tosczak (plaintiffs) v. Hoffmann-La Roche Limited and Mylan Pharmaceuticals ULC (defendants)

(2013 Q.B.G. No. 1169; 2014 SKQB 304)

Indexed As: Graham et al. v. Hoffmann-La Roche Ltd. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Mills, J.

September 19, 2014.

Summary:

The plaintiffs' proposed class action related to the pharmaceutical Accutane. The plaintiffs applied for certification. The defendants brought a number of applications regarding pre-certification matters.

The Saskatchewan Court of Queen's Bench determined the defendants' applications. The certification application remained before the court.

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.) - A defendant in a proposed class action related to the pharmaceutical Accutane sought to cross-examine the proposed representative plaintiffs and an order requiring the production of their medical records in advance of the cross-examination - The Saskatchewan Court of Queen's Bench allowed the application - The court could make the order for cross-examination and production of medical records where it would assist the court in identifying the class action criteria - Here, the plaintiffs did not vigorously oppose the order, but were concerned regarding the scope of the production sought - The court agreed that the defendant's draft order was "far too wide in its approach and places the onus on the plaintiffs to obtain the actual medical documentation" - The court made the appropriate order - See paragraphs 7 to 11.

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.) - In an affidavit filed for the plaintiffs in a proposed class action regarding the pharmaceutical Accutane, the affiant Pham, an articling student with the plaintiffs' counsel, recounted that he had obtained the names of 11 potential class members and had conducted interviews with them - One of the defendants sought to cross-examine Pham and to obtain the medical records of the potential class members referred to, copies of the retainer agreements and personal information in the plaintiffs' counsel's database - The Saskatchewan Court of Queen's Bench dismissed the application - The potential class members were not representative plaintiffs - They had not "signed on to have their personal lives scrutinized in advance of a determination of liability" - The court was not prepared to order release of their medical records - Absent that information, there was no reason to cross-examine Pham - Regarding the retainer agreements and personal information, there had been no waiver of solicitor-client privilege for those items - Further, there appeared to be no value in obtaining further information from Pham to get a complete record on the evidence that was relevant to the certification issue - See paragraphs 12 to 17.

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.) - Plaintiffs in a proposed class action regarding the pharmaceutical Accutane had submitted an affidavit of Finkel that outlined his knowledge, training and experience and in which he rendered an opinion as to whether or not Accutane could cause certain health problems - One of the defendants sought to cross-examine Finkel on his affidavit - The Saskatchewan Court of Queen's Bench held that the defendant was entitled to cross-examine Finkel on whether he was entitled to provide opinion evidence as to whether Accutane could cause those problems - In order for Finkel's evidence to be considered on the certification application, he had to be accepted as an expert - The defendant had raised legitimate concerns regarding his expertise - At this stage of the certification process, cross-examination on the substantive opinion was not allowed - The court's threshold obligation was to determine if an individual was qualified to give opinion evidence - Cross-examination on that issue was a valuable resource - See paragraphs 20 to 34.

Practice - Topic 4254

Discovery - Examination - Range of - Expert opinion - [See third Practice - Topic 210.5 ].

Practice - Topic 4261

Discovery - Examination - Range of - Privileged topics or communications - [See second Practice - Topic 210.5 ].

Practice - Topic 4781

Discovery - Physical or psychological examination - Production of medical reports - [See first and second Practice - Topic 210.5 ].

Cases Noticed:

Pro-Sys Consultants Ltd. et al. v. Microsoft Corp. et al., [2013] 3 S.C.R. 477; 450 N.R. 201; 2013 SCC 57, refd to. [para. 7].

Miller v. Purdue Pharma Inc. et al. (2014), 441 Sask.R. 150; 2014 SKQB 91, refd to. [para. 7].

Hoffman et al. v. Monsanto Canada Inc. et al., [2005] 7 W.W.R. 665; 264 Sask.R. 1; 2005 SKQB 225, refd to. [para. 7].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 114 D.L.R.(4th) 419, refd to. [para. 25].

Baum v. Malleck, [2013] 8 W.W.R. 492; 409 Sask.R. 241; 568 W.A.C. 241; 2013 SKCA 25, refd to. [para. 26].

Kolitsas Holdings Ltd. et al. v. Regina (City) et al., [2004] 1 W.W.R. 68; 238 Sask.R. 43; 305 W.A.C. 43; 2003 SKCA 74, refd to. [para. 26].

Hancock v. Richardson (2013), 415 Sask.R. 269; 2013 SKQB 90, refd to. [para. 26].

Hoffman et al. v. Monsanto Canada Inc. et al., [2004] 4 W.W.R. 632; 233 Sask.R. 112; 2003 SKQB 174, refd to. [para. 32].

Counsel:

E.F. Anthony Merchant, Q.C., for the plaintiffs;

Reginald A. Watson, Q.C., S. Gordon McKee and Peter T. Bergbusch, for the defendant, Hoffmann-La Roche Limited;

Gordon J. Kuski, Q.C., Amanda M. Quayle and Laura K. Fric, for the defendant, Mylan Pharmaceuticals ULC.

These applications were heard by Mills, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat on September 19, 2014.