Wuttunee v. Merck Frosst Canada Ltd.,

• Jurisdiction: Saskatchewan
• Judge: Klebuc
• Neutral Citation: 2007 SKQB 29
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Date: 18 January 2007
• Citation: 2007 SKQB 29,(2007), 291 Sask.R. 161 (QB),[2007] 4 WWR 309,[2007] SJ No 7 (QL),291 Sask R 161,291 Sask.R. 161,(2007), 291 SaskR 161 (QB),[2007] S.J. No 7 (QL),291 SaskR 161

Wuttunee v. Merck Frosst Can. Ltd. (2007), 291 Sask.R. 161 (QB)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. JA.034

Gerald Wuttunee, John Doe I, John Doe II, John Doe III, John Doe IV, John Doe V, Jane Doe I, Jane Doe II, Jane Doe III, Jane Doe IV, Jane Doe V, Dr. John Doe I, Dr. Jane Doe I, and other John Does and Jane Does to be added (plaintiffs) v. Merck Frosst Canada Ltd., Merck & Co. Inc., Her Majesty the Queen, as represented by the Minister of Health and the Attorney General of Canada (defendants)

(2004 Q.B.G. No. 1920; 2007 SKQB 29)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Klebuc, C.J.S.(ex officio)

January 18, 2007.

Summary:

Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain. Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events. Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx. Wuttunee applied to certify the action as a class action and sought leave to amend the statement of claim to add certain persons as plaintiffs. Merck acknowledged that the statement of claim adequately pled the torts of negligence and deceit and certain causes of action based on the Competition Act, but submitted that other claims were inadequately pled or not based on a valid cause of action. Merck sought an order striking those portions of the statement of claim and a declaration that the Consumer Protection Act was unconstitutional. Canada sought an order striking the affidavit of a certain expert (Blais) and striking the action against Canada.

The Saskatchewan Court of Queen's Bench granted Wuttunee leave to add the proposed plaintiffs to the statement of claim. All causes of action against Merck were struck other than those available under ss. 4(i) and 48 of the Consumer Protection Act, ss. 36 and 52 of the Competition Act and the torts of negligence, battery and deceit. The application by Merck for a declaration that the Consumer Protection Act was unconstitutional was dismissed. The action against Canada was struck in its entirety. Blais did not qualify as an expert regarding pharmacological issues. As the decision regarding available causes of action materially narrowed the nature of the identifiable classes, common issues and related action plan proposed by the plaintiffs, the determination of the certification application was adjourned for a further hearing.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See Crown - Topic 1514 ].

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - [See second Consumer Law - Topic 5 ].

Constitutional Law - Topic 5676

Federal jurisdiction (s. 91) - Regulation of trade and commerce - Food and drug legislation - [See second Consumer Law - Topic 5 ].

Constitutional Law - Topic 7299

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Consumer protection - [See second Consumer Law - Topic 5 ].

Consumer Law - Topic 5

General - Application of consumer protection legislation - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue was whether three causes of action (unfair practice, breach of warranty and right to damages) based on the Consumer Protection Act (CPA) were inadequately pled or not based on a valid cause of action - Merck submitted that (i) it was not subject to the CPA because the Food and Drugs Act (FDA) governed prescription drugs and therefore the doctrine of paramountcy required the CPA to be read consistently with the FDA and (ii) the CPA was unconstitutional because it encroached on Parliament's jurisdiction - The Saskatchewan Court of Queen's Bench rejected both arguments - Merck was a supplier within the meaning of the CPA - The facts pled were sufficient to advance the claims based on it, including particulars of the manner in which Vioxx was allegedly unfit for the treatment of osteoarthritis, rheumatoid arthritis and acute pain - See paragraphs 26 to 35.

Consumer Law - Topic 5

General - Application of consumer protection legislation - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue was whether three causes of action (unfair practice, breach of warranty and right to damages) based on the Consumer Protection Act (CPA) were inadequately pled or not based on a valid cause of action - Merck submitted that (i) it was not subject to the CPA because the Food and Drugs Act (FDA) governed prescription drugs and therefore the doctrine of paramountcy required the CPA to be read consistently with the FDA and (ii) the CPA was unconstitutional because it encroached on Parliament's jurisdiction - Merck applied for declarations that the CPA did not apply here and that it was ultra vires Saskatchewan - The Saskatchewan Court of Queen's Bench dismissed the applications - The doctrine of paramountcy did not apply here - No conflict existed such that compliance with the CPA would constitute defiance of the FDA - Further, the limited extra-provincial effect of s. 29 of the CPA (unfair practices outside Saskatchewan) was clearly incidental to the dominant purpose of the CPA (regulation of business in the province) - See paragraphs 106 to 116.

Consumer Law - Topic 5

General - Application of consumer protection legislation - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue was whether the statement of claim established causes of action based on breaches of an express or implied warranty - The Saskatchewan Court of Queen's Bench struck the claims based on a breach of warranty except as they related to the Consumer Protection Act (CPA) or the Competition Act (CA) - Warranties could arise between the parties under the Sale of Goods Act, the CPA or the CA or by means of a collateral contract - Here, no sale was alleged between Merck, as vendor, and any plaintiffs, as purchasers - Thus, the Sale of Goods Act did not apply - Further, no collateral contract was alleged between Merck, as manufacturer, and any plaintiffs, as purchasers - Consequently, the claim failed to raise a cause of action based on either an express or implied warranty other than those arising from the CPA or CA - See paragraphs 63 to 65.

Consumer Law - Topic 8

General - Interpretation of legislation - [See second Consumer Law - Topic 5 ].

Consumer Law - Topic 1603

Sale of goods - General - Seller or merchant - What constitutes - [See first Consumer Law - Topic 5 ].

Contracts - Topic 3528

Performance or breach - Breach - Breach of a warranty - [See third Consumer Law - Topic 5 ].

Crown - Topic 1514

Torts by and against Crown - General and definitions - Constitutional torts - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue was whether the statement of claim established a cause of action based on the Charter of Rights and Freedoms - The plaintiffs alleged that their rights under ss. 7 and 15 of the Charter were infringed by Health Canada and that s. 24(1) gave them a reasonable cause of action - The Saskatchewan Court of Queen's Bench held that the statement of claim failed to establish an arguable cause of action based on a constitutional tort - Regarding s. 7, the plaintiffs failed to plead a violation of a clearly identifiable legal principle fundamental to society's notion of justice - Allegations of simple negligence were insufficient - Regarding s. 15, the plaintiffs had not alleged that a benefit due to them under the Canada Health Act or the Food and Drug Act was withheld nor alleged any differential treatment that violated their dignity in the manner required - Further, a line of authorities that included Sens v. Dobko (S.K.Q.B.) required recklessness, malice or bad faith before Charter damages could be awarded - There were no such allegations here - See paragraphs 95 to 105.

Crown - Topic 1572

Torts by and against Crown - Negligence by Crown - Failure to protect against dangerous health conditions - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue was whether a cause of action framed in negligence was available against Canada - The Saskatchewan Court of Queen's Bench struck the negligence claim against Canada - The court applied the two part Anns test (U.K. H.L.) - Health Canada could have reasonably foreseen significant harm to the plaintiffs if it permitted the sale of a prescription drug known to be dangerous - The foreseeability requirement was met - However, the proximity requirement was not met - The licensing and related regulatory functions of Health Canada did not create any rights in favour of the plaintiffs or a direct relationship between them and Canada - No private duty of care existed - Even if the proximity requirement was met, the duty of care was negated by the distinction between policy and operational decisions and the problem of indeterminate liability - The Minister's discretion to issue a notice of compliance allowing Merck to sell Vioxx in Canada was a policy decision and not the application of rules to individual cases - The plaintiffs failed to identify a specific statutory service Health Canada directly owed any of them or to plead facts establishing a de facto service that Health Canada voluntarily undertook to provide to them - See paragraphs 67 to 90.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences - Bars or exclusions - Policies or "policy" decisions - [See Crown - Topic 1572 ].

Crown - Topic 1785

Torts by and against Crown - Practice - Pleadings - [See Crown - Topic 1514 and Crown - Topic 1572 ].

Crown - Topic 4081

Actions by and against Crown in right of Canada - Defences - Bars or exclusions - General - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue was whether the statement of claim established a cause of action based on a trust obligation imposed on Canada - The Saskatchewan Court of Queen's Bench held that there was no trust relationship between Canada and the plaintiffs - The pleadings advanced by the plaintiffs could be construed as including a claim that Canada was the trustee of the physical, mental and social well-being and health of Canadians and that the plaintiffs were the beneficiaries of the trust - However, neither the facts pled nor the law relied on established an arguable cause of action based on a trust relationship - See paragraph 91.

Crown - Topic 4081

Actions by and against Crown in right of Canada - Defences - Bars or exclusions - General - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue was whether the statement of claim established a cause of action based on breach of a fiduciary relationship between the plaintiffs and Canada - The plaintiffs had pled a breach of a fiduciary duty by Merck and acquiescence by Canada in that breach - The Saskatchewan Court of Queen's Bench struck the claim against Canada based on breach of fiduciary duty - No fiduciary relationship existed between Canada and the plaintiffs - The creation of a fiduciary duty by Health Canada to the plaintiffs would be inconsistent with its duty to consider the public interest - Further, the plaintiffs had not established a valid claim based on breach of fiduciary duty by Merck - Consequently, they could not claim that Canada was negligent in assisting Merck in its breach - See paragraph 92.

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue was whether the statement of claim established a cause of action based on a breach of a fiduciary duty owed by Merck to the plaintiffs - Merck submitted that no fiduciary duty existed because (i) it was not in a position of power vis-à-vis the plaintiffs and was under no obligation to the plaintiffs, (ii) there were no reported decisions opining that a drug manufacturer or distributor owed a fiduciary duty to the consumer and (iii) the plaintiffs' proposed subrogation by way of a fiduciary duty was inconsistent with the concept of fiduciary duty in that it contemplated the duty owed to one person being imputed for another's benefit - The Saskatchewan Court of Queen's Bench held that there was no cause of action based on breach of fiduciary duty - Nothing warranted an extension of fiduciary relationships in the manner advocated by the plaintiffs - See paragraphs 58 to 62.

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See second Crown - Topic 4081 ].

Equity - Topic 3713

Fiduciary or confidential relationships - Commercial relationships - Arm's length commercial transactions - [See Equity - Topic 3607 ].

Fraud and Misrepresentation - Topic 446

Fraudulent misrepresentation (deceit) - Practice - Pleadings - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue was whether the statement of claim established a cause of action based on the tort of "mass deceit" as distinct from the tort of deceit, which Merck acknowledged was adequately pled - The plaintiffs submitted that "mass deceit" should be recognized as a triable cause of action because it was essential for the unification of consumer protection law across Canada - The Saskatchewan Court of Queen's Bench struck the claim based on mass deceit - No plaintiff had alleged that he or she had relied on the alleged misrepresentation by Merck - Further, the theory of fraud on the market was not recognized at common law and was expressly rejected in Carom et al. v. Bre-X Minerals Ltd. (Bankrupt) (Ont. C.A.) - See paragraphs 54 to 57.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - Merck acknowledged that the claim adequately pled the torts of negligence and deceit and certain causes of action based on the Competition Act, but submitted that other claims were inadequately pled or not based on a valid cause of action and sought an order striking those - The Saskatchewan Court of Queen's Bench struck all of the causes of action against Merck other than those available under ss. 4(i) and 48 of the Consumer Protection Act, ss. 36 and 52 of the Competition Act and the torts of negligence, battery and deceit - Claims based on the Food and Drugs Act (FDA) were struck because the FDA did not create a duty of care by Merck to the plaintiffs - The claim of assault fell short of the tort's requirements - The plea of mass deceit was struck as there was no allegation of reliance on Merck's alleged misrepresentation - There was no arguable fiduciary duty owed by Merck to the plaintiffs - As there was no sale alleged between Merck and any plaintiffs, the Sale of Goods Act did not apply and could not give rise to claims based on breach of an express or implied warranty - See paragraphs 25 to 65.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Against Canada, Wuttunee advanced causes of action in negligence, breach of fiduciary duty and breach of a constitutional tort arising out of the infringement of Charter rights - Wuttunee applied to certify the action as a class action - Canada sought an order striking the action against it - The Saskatchewan Court of Queen's Bench struck the action against Canada in its entirety - The pleadings did not disclose a relationship that was proximate enough to give rise to a private law duty of care nor had Wuttunee established either a trust or fiduciary relationship between Canada and the plaintiffs - Regarding the constitutional tort, the pleadings had not alleged that a benefit due was withheld nor any differential treatment to the extent contemplated by the authorities - See paragraphs 66 to 105.

Sale of Goods - Topic 101

General - Application of legislation - General - [See third Consumer Law - Topic 5 ].

Torts - Topic 275

Negligence - Breach of statute - General principles - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue regarding causes of action advanced under the Food and Drugs Act (FDA) was whether s. 9 of the FDA (Deception, etc., regarding drugs) created a statutory cause of action against Merck and whether breaches by Merck of FDA standards (i) could found a cause of action and (ii) constituted evidence of negligence - The Saskatchewan Court of Queen's Bench struck Wuttunee's causes of action based on the FDA - The pleadings appeared to be based on the proposition that breach of a statute gave rise to a cause of action in negligence or constituted prima facie evidence of negligence - Such claims were materially restricted, if not eliminated, by Saskatchewan Wheat Pool v. Canada (S.C.C.) - The FDA did not create a duty of care by Merck to the plaintiffs - Thus, there was no direct cause of action under it - Further, no cause of action was available based on a "nominative tort of statutory breach" - Whether the alleged violations of FDA standards were evidence of negligence was to be addressed by the trier of fact - See paragraphs 36 to 38.

Torts - Topic 3182

Trespass - Assault and battery - Assault - What constitutes - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue was whether the statement of claim established a cause of action based on the tort of assault - Wuttunee alleged that Merck's announcement that Vioxx was being withdrawn from the market aroused a reasonable apprehension of imminent physical harm, resulting in depression, mental suffering, stress and anxiety - The Saskatchewan Court of Queen's Bench struck the claim based on assault - There were no allegations that Merck directly or indirectly contacted the plaintiffs or that any of them experienced immediate and reasonable apprehension of harm or offensive contact - The mere allegation that some plaintiffs experienced apprehension of imminent physical harm following Merck's announcement fell short of the tort's requirements in two ways: (i) more than mere fear of harm was required and (ii), in the absence of actual contact, there had to be some conduct indicating that an assault was to be executed immediately - See paragraphs 42 to 47.

Torts - Topic 3191

Trespass - Assault and battery - Battery - What constitutes - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue was whether the statement of claim established a cause of action based on the tort of battery - Wuttunee submitted that Merck's representatives misled doctors and Health Canada with the intent of placing Vioxx, a dangerous substance, in patients' bodies without their informed consent - Merck submitted that a physical touching was essential and that this was never pled - The Saskatchewan Court of Queen's Bench refused to strike the claim based on battery - Certain indirect intrusions could give rise to findings of battery - The plaintiffs had pled sufficient facts to warrant further consideration of their claim as an expansion of the tort - See paragraphs 48 to 53.

Torts - Topic 4227

Suppliers of goods - Warranties - Breach of - [See third Consumer Law - Topic 5 ].

Torts - Topic 4337

Suppliers of goods - Negligence - Manufacturers - Drugs - [See Torts - Topic 275 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - Health Canada granted Merck permission to market Vioxx, a prescription drug for relieving arthritis pain - Merck withdrew Vioxx after participants in a study suffered adverse cardiovascular events - Wuttunee brought an action against Merck and Canada to recover damages for injuries and losses he suffered while taking Vioxx - Wuttunee applied to certify the action as a class action - At issue was whether the statement of claim established a cause of action based on bad faith by Health Canada - The plaintiffs alleged that bad faith arose from the Minister's consideration of the profits and financial gain Merck would receive if the drug were approved and the losses it would suffer if the notice of compliance were delayed - The Saskatchewan Court of Queen's Bench struck the bad faith claim - As an intentional tort, misfeasance in public office required that either the public officer acted with the specific intent to injure the plaintiff or with knowledge that he or she did not have the power to do the act complained of which was likely to injure the plaintiff - The claim met neither requirement - See paragraphs 93 to 94.

Cases Noticed:

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279, refd to. [para. 20].

Carom et al. v. Bre-X Mineral Ltd. et al. (2000), 138 O.A.C. 55; 196 D.L.R.(4th) 344 (C.A.), leave to appeal refused (2001), 283 N.R. 399; 157 O.A.C. 399 (S.C.C.), refd to. [para. 20].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 23].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 23].

Elms v. Laurentian Bank of Canada et al. (2001), 155 B.C.A.C. 73; 254 W.A.C. 73 (C.A.), refd to. [para. 23].

Abdool et al. v. Anaheim Management Ltd. et al. (1995), 78 O.A.C. 377; 21 O.R.(3d) 453; 121 D.L.R.(4th) 496 (Div. Ct.), refd to. [para. 23].

Hoffman et al. v. Monsanto Canada Inc. et al., [2005] 7 W.W.R. 665; 264 Sask.R. 1 (Q.B.), refd to. [para. 23].

Tottrup v. Alberta (Minister of the Environment) - see Tottrup v. Lund et al.

Tottrup v. Lund et al., [2000] 9 W.W.R. 21; 255 A.R. 204; 220 W.A.C. 204 (C.A.), refd to. [para. 23].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 37].

Kennedy et al. v. Hanes et al., [1940] O.R. 461 (C.A.), affd. [1941] S.C.R. 384, refd to. [para. 43].

Sirois et al. v. Gustafson et al., [2003] 3 W.W.R. 110; 226 Sask.R. 28, supplementary reasons [2003] 3 W.W.R. 123 (Q.B.), refd to. [para. 45].

Stephens v. Meyers (1830), 172 E.R. 735, refd to. [para. 45].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 50].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 57].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 60].

Anns v. Merton London Borough Council, [1977] 2 All E.R. 492 (H.L.), appld. [para. 68].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388, refd to. [para. 68].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268, refd to. [para. 69].

Baric v. Tomalk, [2006] O.T.C. 224; 38 C.C.L.T.(3d) 300 (Sup. Ct.), dist. [para. 72].

Eliopoulos et al. v. Ontario (Minister of Health and Long-Term Care) (2006), 217 O.A.C. 69 (C.A.), refd to. [para. 72].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241, refd to. [para. 75].

Williams v. Canada (Attorney General) et al., [2005] O.T.C. 729; 257 D.L.R.(4th) 704 (Sup. Ct.), dist. [para. 77].

Klein v. American Medical Systems Inc. et al., [2005] O.T.C. Uned. A42; 37 C.C.L.T.(3d) 260 (Sup. Ct.), revd. [2006] O.A.C. Uned. 243 (Div. Ct.), dist. [para. 77].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, dist. [para. 77].

Doyer v. Canada (Ministre de la Santé), [2001] Q.J. No. 1300 (Sup. Ct.), dist. [para. 77].

Swanson and Peever v. Canada (1991), 124 N.R. 218; 80 D.L.R.(4th) 741 (F.C.A.), dist. [para. 77].

Pfizer Canada Inc. v. Minister of National Health and Welfare et al. (1986), 12 C.P.R.(3d) 438 (F.C.A.), leave to appeal to S.C.C. refused [1987] 1 S.C.R. xi; 76 N.R. 397, refd to. [para. 81].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, refd to. [para. 83].

Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare) and Apotex Inc. et al. (No. 5) (1987), 16 F.T.R. 81; 43 D.L.R.(4th) 273 (T.D.), affd. (1990), 107 N.R. 195; 68 D.L.R.(4th) 761 (F.C.A.), refd to. [para. 87].

Kuczerpa v. Canada (1993), 152 N.R. 207 (F.C.A.), leave to appeal refused [1993] 3 S.C.R. vii; 160 N.R. 319, refd to. [para. 88].

Harris v. Minister of National Revenue, [2002] 2 F.C. 484; 214 F.T.R. 1 (T.D.), refd to. [para. 92].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 92].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201, refd to. [para. 94].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 97].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1, refd to. [para. 99].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1, refd to. [para. 101].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 101].

Sens v. Dobko (2000), 202 Sask.R. 256 (Q.B.), refd to. [para. 104].

Neufeld v. Manitoba (2001), 161 Man.R.(2d) 18 (Q.B.), varied [2002] 11 W.W.R. 395; 166 Man.R.(2d) 208; 278 W.A.C. 208 (C.A.), refd to. [para. 104].

Rothmans, Benson & Hedges Inc. v. Saskatchewan et al., [2005] 1 S.C.R. 188; 331 N.R. 116; 257 Sask.R. 171; 342 W.A.C. 171, refd to. [para. 108].

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201, refd to. [para. 110].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1, refd to. [para. 113].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 115].

Global Securities Corp. v. British Columbia Securities Commission et al., [2000] 1 S.C.R. 494; 252 N.R. 290; 134 B.C.A.C. 207; 219 W.A.C. 207, refd to. [para. 115].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201, refd to. [para. 118].

Toms Grain & Cattle Co. et al. v. Arcola Livestock Sales Ltd. et al., [2004] Sask.R. Uned. 153; 2004 SKQB 338, refd to. [para. 124].

Frobisher Ltd. v. Canadian Pipelines & Petroleums Ltd. (1957), 10 D.L.R.(2d) 338 (Sask. C.A.), affd. [1960] S.C.R. 126, refd to. [para. 132].

Saskatoon Criminal Defence Lawyers Association, Elder and Maltby v. Saskatchewan and Lane (1984), 32 Sask.R. 122; 11 D.L.R.(4th) 239 (Q.B.), refd to. [para. 132].

Authors and Works Noticed:

Cassels, Jamie, and Jones, Craig E., The Law of Large-Scale Claims: Product Liability, Mass Torts, and Complex Litigation in Canada (2005), pp. 103 [para. 55]; 105, 106, 107 [para. 37].

Hogg, Peter W., Constitutional Law of Canada (4th Ed. 1997) (Looseleaf), pp. 16-14, 16-16 [para. 113].

Klar, Lewis N., Tort Law (3rd Ed. 2003), pp. 41, 42 [para. 43].

Linden, Allen M., Canadian Tort Law (7th Ed. 2001), pp. 42, 43 [para. 51]; 45, 46 [para. 45]; 47 [para. 46]; 210, 211, 212 [para. 37]; 217 [para. 38].

Rainaldi, Linda A., Remedies in Tort (1987) (Looseleaf), vol. 1, pp. 2-24, 2-25, 2-27 [para. 45].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), pp. 41, 42 [para. 61].

Counsel:

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

Maurice O. Laprairie, Q.C., Mary Thomson and Jason Mohrbutter, for the defendants, Merck;

Mark R. Kindrachuk, Q.C., Alan Jacobson, Marcia Jackson and David J. Smith, for the defendants.

These applications were heard by Klebuc, C.J.S.(ex officio), of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on January 18, 2007.