Mignacca v. Merck Frosst Canada Ltd. et al., (2009) 249 O.A.C. 19 (CA)

• Judge: Rouleau, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 05, 2009
• Jurisdiction: Ontario
• Citations: (2009), 249 O.A.C. 19 (CA);2009 ONCA 393

Mignacca v. Merck Frosst Can. Ltd. (2009), 249 O.A.C. 19 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. MY.036

Benny Mignacca and Elaine Mignacca (plaintiffs/respondents) v. Merck Frosst Canada Ltd., Merck Frosst Canada & Co. and Merck & Co., Inc. (defendants/moving parties)

(M37488; 2009 ONCA 393)

Indexed As: Mignacca v. Merck Frosst Canada Ltd. et al.

Ontario Court of Appeal

Rouleau, J.A.

May 11, 2009.

Summary:

The plaintiffs brought an action against the defendants. The plaintiffs sought to have their action certified as a class proceeding. A similar class proceeding was certified in Saskatchewan.

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. P65, certified the action as a class action. The defendants applied for leave to appeal.

The Ontario Superior Court dismissed the application for leave to appeal the certification order (Bellamy, J.'s order). Months later, the Saskatchewan certification order was quashed on appeal. The defendants moved for an extension of time to seek leave to appeal Bellamy, J.'s order.

The Ontario Court of Appeal, per Rouleau, J.A., held that should the defendants conclude that the order was final and that their appeal lied to the Court of Appeal, the court granted an extension of the time for filing the notice of appeal to May 21, 2009. If this appeal route was taken by the defendants, the plaintiffs were at liberty to bring a motion seeking to quash the appeal should they be of the view that Bellamy, J.'s order was not a final order. As well, they were free to take the position, on appeal or in a motion to quash, that the order of Bellamy, J., was not appealable. If the defendants decided to proceed in the Divisional Court on the basis that the order was interlocutory, they would have to bring the appropriate proceedings in that court.

Practice - Topic 8887

Appeals - Leave to appeal - Appeal from grant or denial of application for leave - The plaintiffs brought an action against the defendants - The plaintiffs sought to have their action certified as a class proceeding - A similar class proceeding was certified in Saskatchewan - Cullity, J., certified the action as a class action - The defendants applied for leave to appeal - Bellamy, J., denied leave to appeal the certification order - Months later, the Saskatchewan certification order was quashed on appeal - The defendants moved for an extension of time to seek leave to appeal Bellamy, J.'s order - The Ontario Court of Appeal, per Rouleau, J.A., stated that "the more difficult issue is the question of procedure. There is considerable confusion as to whether a refusal to grant leave to appeal can be appealed and, if so, what court to apply to and what procedure to follow. There are two major steps in resolving this issue. The first step is for the moving party to decide whether the refusal to grant leave was an interlocutory or final order. Only then can the proper court and procedure be determined. Once in the proper forum, the moving party must then show that the case fits within the exception to the general rule that a refusal to grant leave to appeal cannot be appealed ... there is no scenario pursuant to which leave to appeal to this court would be required. Therefore, I see no basis for granting an extension of time for filing a notice of motion for leave to appeal to this court. If the moving parties consider that Bellamy J.'s order is final, then the appeal, if any, is to this court as of right. If they consider the order to be interlocutory, then the appeal, if any, lies to the Divisional Court with leave ... The question of whether this case falls within an exception to the general rule that a refusal of leave to appeal cannot be appealed will be resolved by the court to which the appeal is taken".

Cases Noticed:

Wuttunee et al. v. Merck Frosst Canada Ltd. et al. (2008), 312 Sask.R. 265 (Q.B.), revd. (2009), 324 Sask.R. 210; 451 W.A.C. 210; 2009 SKCA 43, refd to. [paras. 4, 7].

Kefeli v. Centennial College of Applied Arts and Technology et al., [2002] O.A.C. Uned. 187; 23 C.P.C.(5th) 35 (C.A.), refd to. [para. 11].

Rizzi v. Mavros et al. (2007), 224 O.A.C. 293; 85 O.R.(3d) 401 (C.A.), refd to. [para. 11].

Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 91 O.A.C. 54; 29 O.R.(3d) 612 (C.A.), refd to. [para. 15].

Denison Mines Ltd. v. Ontario Hydro (2001), 150 O.A.C. 387; 56 O.R.(3d) 181 (C.A.), refd to. [para. 20].

Lombard Canada Co. v. AXA Assurance Inc. (2007), 228 O.A.C. 32 (C.A.), refd to. [para. 20].

Kohar v. Dufferin-Peel Catholic School Board et al., [1999] O.A.C. Uned. 296 (Div. Ct.), refd to. [para. 21].

Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), refd to. [para. 22].

Counsel:

Neil Finkelstein, Catherine Beagan-Flood and Karin McCaig, for the moving parties;

Bonnie A. Tough and Jennifer Lynch, for the respondents.

This application was heard in Chambers on May 5, 2009, by Rouleau, J.A., of the Ontario Court of Appeal, who delivered the following judgment on May 11, 2009.