Date: 20021218
Docket: T-2442-98
Neutral Citation No.: 2002 FCT 1308
BETWEEN:
ROBERTA AUSSANT, DIANE CHAPMAN, GLOREEN CHICKOWSKI, KAREN KERR, KATHY INMAN, SUZANNE LINNELL, SANDRA LALIBERTE, DARLENE MELLQUIST and DOREEN STEWART each on their own behalf and on behalf of all persons who have been implated with silicone gel-filled implants in Canada
Plaintiffs
- and -
HER MAJESTY THE QUEEN, as represented by THE MINISTER OF HEALTH AND WELFARE CANADA and THE ATTORNEY GENERAL OF CANADA
Defendants
[1] This representative action was brought under the former Rule 114 of the Federal Court Rules, 1998, SOR 98/106 and is now governed by Rules 299.1 and following [added by the Rules Amending the Federal Court Rules, 1998, SOR 2002-417, s. 17]. It is a claim against the Crown for alleged negligence in granting regulatory approval for breast implants. The action was stayed by an order of McKeown J. in November 2000, and the present motion, brought pursuant to Rule 369 seeks: a) to have that stay lifted; b) leave to amend the statement of claim and c) to stay three similar actions pending in three separate provincial superior courts. The motion is opposed by the Crown.
[2] As a preliminary point, the Crown seems to object to plaintiffs having proceeded under Rule 369 although it does not seek an oral hearing. I dismiss that objection; there is no principle which requires motions to be heard orally in class action proceedings and, in my view, the procedure provided by Rule 369 is appropriate here.
[3] Far more serious is the Crown's objection to the fact that the only evidentiary support for the motion is an affidavit from the plaintiffs' solicitor. That affidavit is clearly improper; it is not limited to mere matters of form and there is no good reason for granting leave for it to be produced (Rule 82). The affidavit also omits to allege any facts in support of plaintiffs' critical contention to the effect that the provincial class actions are "mired" or "bogged down" in procedural wrangles. While the evidence produced by the Crown in response to the motion does indeed demonstrate that those actions are being vigorously contested, it also shows that each of them is being case managed by a judge of the relevant provincial superior court, and any delay in moving the actions forward is at least as much the responsibility of the respective provincial plaintiffs as it is of the Crown. In particular, in the Ontario action, it appears that an important motion is scheduled to be heard for several days starting January 13, 2003, and a lifting of the stay in this action might very well be invoked as a ground for seeking a delay in that hearing. If that action is certified and is ultimately successful, the plaintiffs will be entitled to benefit from it. This latter fact, obviously a principal consideration in the granting of the original stay, has not changed and militates strongly against my exercising my discretion in favour of the motion.
[4] Furthermore, today, as in November 2000, there are strong indications that this action will necessarily be stayed under the provisions of section 50.1 of the Federal Court Act by reason of the Crown making third party claims against the various manufacturers of the breast implants, claims which would be beyond the jurisdiction of this Court. The plaintiffs' contention that the Crown is "estopped" from bringing third party proceedings because it has pleaded to this action, is obviously untenable. In any event, since the plaintiffs themselves seek leave to amend their statement of claim, the Crown's right to amend its statement of defence so as to include a third party claim if the motion were granted is automatic (see Rule 78). The claims by the Crown against the manufacturers (some of whom have settled class claims against them) will raise difficult questions which this Court cannot resolve and which may go to the very essence of the plaintiffs' claim against the Crown.
[5] Finally, even if I were to agree to lift the present stay, I would not grant the plaintiffs' further request that I stay the pending provincial actions. I do not have the power to do so, there being no doctrine of federal paramountcy in the matter of the jurisdiction of superior courts. The provincial superior courts, being of concomitant standing and authority with this one and with each other, each alone has the power to decide as to whether and when to order that its proceedings be stayed. Section 50.1 itself makes plain Parliament's intent that this Court must not attempt to pre-empt provincial jurisdiction in cases such as this.
[6] The Crown has asked for costs, but I am not persuaded that I should make an exception to the general rule of Rule 299.41(1).
ORDER
The motion is dismissed without costs.
Judge
Ottawa, Ontario
December 18, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2442-98
STYLE OF CAUSE: Roberta Aussant et al v. Her Majesty the Queen et al
Pursuant to Rule 369 : Motion in writing : Ottawa, Ontario
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: December 18, 2002
APPEARANCES:
Richard Yaholnitsky FOR THE PLAINTIFFS
Mark Kindrachuk FOR THE DEFENDANT
SOLICITORS ON THE RECORD:
Merchant Law Group
Yorkton, Saskatchewan FOR THE PLAINTIFFS
Morris Rosenberg
Deputy Attorney General of Canada FOR THE DEFENDANT