File No T 724 19 FEDERAL COURT BETWEEN Plaintiffs HER ......Nov 07, 2019 · simmons thomas kearney michael hackett wayne frank alain ... shaun william arntsen michael grant rude

MOTION RECORD OF HER MAJESTY THE QUEEN IN RIGHT OF CANADA

MOTION RETURNABLE DECEMBER 12 2019

VOLUME 2 of 2

Court File No T 724 19

FEDERAL COURT

BETWEEN

SHAUN WILLIAM ARNTSEN MICHAEL GRANT RUDE and MARTIN LEPINE

Plaintiffs

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

Defendant

and


BETWEEN

DAVID BONA CLAUDE LALANCETTE SHERRI ELMS

Plaintiffs

and



CHRISTIAN McEACHERN and PHILLIP BROOKS

and


BETWEEN

Plaintiffs

Defendant

and


BETWEEN

STEPHEN BOULAY TYSON MATTHEW BOWEN ALISON CLARK ALEXANDER

DEELEY BENJAMIN DONNIE ROGER GAUTHIER TYLER COADY MICHAEL

BUZNY STEPHANE CHARBONNEAU JASON ANDERSON ANN BASTIEN

MATTHEW BLEACH WADE COOPER HAROLD DICKSON KYLE GETCHELL IAN

LANG JORDAN LOGAN ALI NEHME MAXIME GABORIAULT JUSTIN

PAQUETTE BRAD PETERS KIRK POWELL ISAAC PRESIDENT ERNEST SMITH

RANDY J SMITH ANDREW STAFFORD JASON LE NEVEU DANIEL HASLIP

RICHARD FIESSEL GARY SANGSTER CODY KULUSKI ADRIAN DROHOBYCKY

JIMMY LAROCQUE LANCE COVYEOW SALVADOR RENATO ZELADA

QUINTANILLA TREVOR GROHS CHRISTOPHER CHARTIER ROB COBB GREG

HART EWARLD HOLLY TRAVIS JONES DANIEL JOUDREY JOSEPH MOORE

BRANDON KETT WILLIAM ALDON NICKERSON JUSTIN NORMAN JUDY

OCHOSKI OWEN PARKHOUSE LANDON PERRY THOMAS BOWDEN CURTIS

GIBSON LEO VEMB LEROY BOURGOIN JEREMY LEBLANC MARK VERRALL

CONRAD KEEPING WILLIAM PERRY JEFFRY FLEMING TIMOTHY MILLS

STEPHEN BARTLETT SCOTT FIERLING ADAM LANG NATHAN

CHRISTOPHER MADENSKY GORDON MAIDMENT MICHAEL DESMOND JOHN

RYAN TOM BRYSON BRADLEY QUAST JODY HARTLING ANDREW JASON

GUSHUE ROBBIE LATREILLE LUC CHAMPAGNE ANTONY PETERS DARYL

INGLIS DANIEL BOUDREAULT and JUSTIN TOBIN

IPlaintiffs

and


Defendant

and

1 Court File No T 1320 19

BETWEEN

ALLAN ALEXANDER MARK AUCOIN DEAN BERGSTROM ROBERT GARY

BURNS MICHAEL KENNETH ESTEY MARIE CLAUDE LEMIEUX JOSEPH DANIEL

ROBERT LIZOTTE BRAD LOCKE PATRICK MACDONALD MELVYN NEVILLE

ALLEN SZABON RANDY TITUS GRAHAM MASON VERNON MACKAY STEVE

WRATHALL KEVIN DAWE TERRENCE HURLEY JOHN ALEXANDER WILT

PETER THORP LEVITT PETER BARNES DAVE BURTCH JOHN JOSEPH HARDY

JEFFEREY HARRISON ANDREW BLACKIE BLAISE BOURGEOIS MICHAEL

THIER MURRAY CLARKE JAMES HOWARD MACKAY SHELDON ERNEST

ROBERTS MICHAEL BENNETT FREDERICK ROBERT PERRY STEPHEN

SIMMONS THOMAS KEARNEY MICHAEL HACKETT WAYNE FRANK ALAIN

PELLEGROMS DONALD WAYNE COLE MARK DIOTTE RICHARD ROY

CAMERON STEVEN LIVELY JAMES KEITH SHEPPARD JOSEPH LOREN BOLT

YVES JOSEPH LEGERE DARLENE ARSENEAULT JASON HOEG DONALD FOX

IMICHAEL BECH PIERRE GENTES THOMAS YURKIW MARIE GODFREY RUBY

SMITH PETER CHIASSON MARK ROYAL MARK STRICKLAND and MICHAEL

THIBODEAU

Plaintiffs


Defendant

and


BETWEEN

WILLIAM AITKEN BRENDA CAMPBELL TOM GOODBODY MICHAEL HOPPING

STEPHANE LEROUX ANDY MOSIENKO DAVID NYYSOLA NEIL DODSWORTH

KEVIN MORROW JOSEPH JASIN PAUL MORNEAULT COLIN WILMS JAMIE P

GRENIER JOHN ARTHUR ARMSTRONG CHRIS HODD STEVEN M D BARTON

ALAN BROWN TONY HILL TRENT HOLLAHAN GERARD MOORES DARREN

VERVILLE JOHN DOWNS DINO SIMONE ROBERT MACDONALD NORMAN

HARRISON RODERICK MACKAY KEITH LOSIER PHILLIP PALMER THOMAS

PATRICK HANEY RICKIE CHAYKOWSKI PETER OLAND JOHN RALPH

MCMILLAN GARY JOHN REID JASON CLAUDE FLANDERS JODY DANIAL

GILLIS MILES WALTON JOSEPH ANDRE VAILLANCOURT DEAN HISCOCK

BRIAN PETER JEFFERSON BRIAN MCGEAN BRENT COUNTWAY PAUL

TURMEL ERIC ST GELAIS ROBERT FARQUHAR DWAYNE SPENCER RONALD

HERBERT OCONNOR KEVIN JOHN STEWART MARTIN GAGNON PERRY

ANTLE TRACY BARNSDALE EAMONN BARRY GRAHAM FORD PHILIPPE

JOSEPH CERE MASON EDWARD HUDDLESTON and CHRISTOPHER BRECKON

Plaintiffs

and


Defendant

MOTION RECORD OF THE DEFENDANT


MOTION RETURNABLE DECEBER 12 2019

VOLUME 2 of

ATTORNEY GENERAL OF CANADA

Department of Justice

Ontario Regional Office

120 Adelaide Street West Suite 400

Toronto ON M5H 1T1

Per Joel Robichaud

Tel 647 256 0546

Email joel robichaud justice gc ca

Per Shain Widdifield

Tel 647 256 0574

Email shain widdifield justice gc ca

Per Wendy Wright

Tel 647 256 0577

Email wendy wright justice gc ca

Solicitor for the Defendant

TO The Administrator

Federal Court of Canada

180 Queen Street West

Suite 200

Toronto ON M5V 3L6

AND TO Howie Sacks and Henry LLP

Suite 3500 20 Queen Street West

Toronto ON M5H 3R3

Paul Miller on behalf of the Plaintiffs

pmillerAhshlawyers com

Tel 416 361 5990

Fax 416 361 0083

AND TO Waddell Phillips PC Barristers

Suite 1120 36 Toronto Street

Toronto ON M5C 2C5

John Kingman Phillips on behalfof the Plaintiffs

iohnwaddellphillipsca

Tel 647 220 7420

Fax 416 477

ID

INDEX

TAB DOCUMENT PAGES

Volume 1 of 2

1 Notice of Motion dated November 5 2019 1 6

2 Affidavit of Rebecca Coleman sworn November4 2019 7 15

A Statementof Claim dated February 14 2000 and

Amended Statementof Claim dated September 13

2001 in Ontario Superior Court of Justice File No CP

1737 00

16 39

B Smith v Armstrong et al 2018 ONSC 2435 dated April

17 2018

40 54

C Statementof Claim in Ontario Superior Court of Justice

File No CP 18 0224 00CP dated January 18 2019

55 74

D Amended Statement of Claim in Ontario Superior Court

of Justice File No CP 18 0224 00CP dated April 9

2019

75 95

E Notice of Intent to Defend in Ontario Superior Court of

Justice File No CP 18 0224 00CP dated July 16

2019

96 102

F Statementof Claim in Federal Court File No T 724 19 103 127

G Statement of Claim in Federal Court File No T 725 19 128 156

H Statementof Claim in Federal Court File No T 726 19 157 178

I Letter from plaintiffs counsel to the Prothonotary

Furlanetto dated July 22 2019

179 181

J Statementof Claim in Federal Court File No T 1319 19 182 230

K Statement of Claim in Federal Court File No T 1320 19 231 270

L Statement of Claim in Federal Court File No T 1321 19 271 311

M Email from plaintiffs counsel to defendants counsel

dated August 19 2019

312

TAB DOCUMENT PAGES

Direction from Prothonotary Furlanetto dated

September 27 2019

316 319

0 Joint email to the Federal Court dated September 9

2019

320 324

P Email from defendants counsel to plainitffs counsel

dated September 26 2019 and email from defendants

counsel to the Federal Court dated September 27

2019

325 331

Q Direction from Prothonotary Furlanetto dated October

1 2019

332 340

R Joint letter to the Federal Court dated October 4 2019 341 343

S Direction from Prothonotary Furlanetto dated October

8 2019

344 345

Volume 2 of 2

3 Written Representations of the Moving Party Her Majesty the

Queen in right of Canada dated November6 2019

346 372

1 Annex I Comparison of allegations against Roche in

the Dowe proposed class action to allegations against

canada in the Federal court actions

373 375

2 Annex II Comparison of allegations against Canada

in Dowe proposed class action to allegations against

Canada in the Federal Court actions

376 382

3 Annex Ill Draft Third Party Claim 383

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

000346

WRITTEN RESPENTATIONS OF HER MAJESTY THE QUEEN

IN RIGHT OF CANADA

MOTION RETURNABLE DECEMBER 12 2019


FEDERAL COURT

BETWEEN

SHAUN WILLIAM ARNTSEN MICHAEL GRANT RUDE and MARTIN

LEPINE

Plaintiffs

and


Defendant

and


BETWEEN

DAVID BONA CLAUDE LALANCETTE SHERRI ELMS

Plaintiffs

and


Defendant


BETWEEN

CHRISTIAN McEACHERN and PHILLIP

000347

Plaintiffs

and


Defendant

and


BETWEEN

STEPHEN BOULAY TYSON MATTHEW BOWEN ALISON CLARK

ALEXANDER DEELEY BENJAMIN DOMINIE ROGER GAUTHIER TYLER

COADY MICHAEL BUZNY STEPHANE CHARBONNEAU JASON

ANDERSON ANN BASTIEN MATTHEW BLEACH WADE COOPER

HAROLD DICKSON KYLE GETCHELL IAN LANG JORDAN LOGAN AL

NEHME MAXIME GABORIAULT JUSTIN PAQUETTE BRAD PETERS

KIRK POWELL ISAAC PRESIDENT ERNEST SMITH RANDY J SMITH

ANDREW STAFFORD JASON LE NEVEU DANIEL HASLIP RICHARD

FIESSEL GARY SANGSTER CODY KULUSKI ADRIAN DROHOBYCKY

JIMMY LAROCQUE LANCE COVYEOW SALVADOR RENATO ZELADA

QUINTANILLA TREVOR GROHS CHRISTOPHER CHARTIER ROB

COBB GREG HART EWARLD HOLLY TRAVIS JONES DANIEL

JOUDREY JOSEPH MOORE BRANDON KETT WILLIAM ALDON

NICKERSON JUSTIN NORMAN JUDY OCHOSKI OWEN PARKHOUSE

LANDON PERRY THOMAS BOWDEN CURTIS GIBSON LEO VEMB

LEROY BOURGOIN JEREMY LEBLANC MARK VERRALL CONRAD

KEEPING WILLIAM PERRY JEFFRY FLEMING TIMOTHY MILLS

STEPHEN BARTLETT SCOTT FIERLING ADAM LANG NATHAN

BLAKE CHRISTOPHER MADENSKY GORDON MAIDMENT MICHAEL

DESMOND JOHN RYAN TOM BRYSON BRADLEY QUAST JODY

HARTLING ANDREW JASON GUSHUE ROBBIE LATREILLE LUC

CHAMPAGNE ANTONY PETERS DARYL INGLIS DANIEL

BOUDREAULT and JUSTIN TOBIN

Plaintiffs

and

HER MAJESTY THE QUEEN IN RIGHT OF

000348

Defendant

and


BETWEEN

ALLAN ALEXANDER MARK AUCOIN DEAN BERGSTROM ROBERT

GARY BURNS MICHAEL KENNETH ESTEY MARIE CLAUDE LEMIEUX

JOSEPH DANIEL ROBERT LIZOTTE BRAD LOCKE PATRICK

MACDONALD MELVYN NEVILLE ALLEN SZABON RANDY TITUS

GRAHAM MASON VERNON MACKAY STEVE WRATHALL KEVIN

DAWE TERRENCE HURLEY JOHN ALEXANDER WILT PETER THORP

LEVITT PETER BARNES DAVE BURTCH JOHN JOSEPH HARDY

JEFFEREY HARRISON ANDREW BLACKIE BLAISE BOURGEOIS

MICHAEL THIER MURRAY CLARKE JAMES HOWARD MACKAY

SHELDON ERNEST ROBERTS MICHAEL BENNETT FREDERICK

ROBERT PERRY STEPHEN SIMMONS THOMAS KEARNEY MICHAEL

HACKETT WAYNE FRANK ALAIN PELLEGROMS DONALD WAYNE

COLE MARK DIOTTE RICHARD ROY CAMERON STEVEN LIVELY

JAMES KEITH SHEPPARD JOSEPH LOREN BOLT YVES JOSEPH

LEGERE DARLENE ARSENEAULT JASON HOEG DONALD FOX

MICHAEL BECH PIERRE GENTES THOMAS YURKIW MARIE

GODFREY RUBY SMITH PETER CHIASSON MARK ROYAL MARK

STRICKLAND and MICHAEL THIBODEAU

Plaintiffs

and


Defendant

and


BETWEEN

WILLIAM AITKEN BRENDA CAMPBELL TOM GOODBODY MICHAEL

HOPPING STEPHANE LEROUX ANDY MOSIENKO DAVID NYYSOLA

000349

NEIL DODSWORTH KEVIN MORROW JOSEPH JASIN PAUL

MORNEAULT COLIN WILMS JAMIE P GRENIER JOHN ARTHUR

ARMSTRONG CHRIS HODD STEVEN M D BARTON ALAN BROWN

TONY HILL TRENT HOLLAHAN GERARD MOORES DARREN

VERVILLE JOHN DOWNS DINO SIMONE ROBERT MACDONALD

NORMAN HARRISON RODERICK MACKAY KEITH LOSIER PHILLIP

PALMER THOMAS PATRICK HANEY RICKIE CHAYKOWSKI PETER

OLAND JOHN RALPH MCMILLAN GARY JOHN REID JASON CLAUDE

FLANDERS JODY DANIAL GILLIS MILES WALTON JOSEPH ANDRE

VAILLANCOURT DEAN HISCOCK BRIAN PETER JEFFERSON BRIAN

MCGEAN BRENT COUNTWAY PAUL TURMEL ERIC ST GELAIS

ROBERT FARQUHAR DWAYNE SPENCER RONALD HERBERT

OCONNOR KEVIN JOHN STEWART MARTIN GAGNON PERRY

ANTLE TRACY BARNSDALE EAMONN BARRY GRAHAM FORD

PHILIPPE JOSEPH CERE MASON EDWARD HUDDLESTON and

CHRISTOPHER BRECKON

Plaintiffs

and


Defendant

WRITTEN REPRESENTATIONS

OVERVIEW

1 The Defendant Her Majesty the Queen in Right of Canada Canada

desires to bring a third party claim against Hoffmann La Roche Limited

Roche the manufacturer and distributor of the anti malarial drug mefloquine

for contribution and indemnity under the Negligence Actl of Ontario in the

above noted six 6 actions Federal Court actions

1R S O 1990 c N

000350

2

2 Canadasdesire is genuine and the Federal Court would lack jurisdiction

over the third party claim Staying the proceedings in Federal Court would not

cause any prejudice or injustice to the plaintiffs since essentiallythe same claim

for damages already exists in the Ontario Superior Court of Justice OSCJ It

is therefore in the interest of justice that the matter be litigated in the OSCJ

where Roche who could potentially be responsible for the alleged damages is

already a co defendant

3 For these reasons these proceedings should be stayed pursuant to

section 50 1 and paragraphs 50 1 a and b of the Federal Courts Act2

PART I STATEMENT OF FACTS

A BACKGROUND

4 One hundred and ninety five 195 plaintiffs who were members of the

Canadian Armed forces CAF allege that between 1992 to 2017 the CAF and

the Department of National Defence DND ordered them to take the anti

malarial drug mefloquine before and during their deployment to malaria

endemic regions e g Somalia and Afghanistan when the CAF and DND knew

or ought to have known that taking the drug causes serious neurological and

psychiatric side effects

2R S C 1985 c F

000351

3

5 Roche is the manufacturer and distributor of mefloquine sold under the

trade name Lariam3 In the early 1990s prior to its approval for sale in the

Canadian market mefloquine was available as part of a study or clinical trial

known as the Lariam Safety Monitoring Study SMS sponsored by Roche and

approved by Health Canada DND provided CAF members with mefloquine as

part of this study 4

B PROCEDURAL HISTORY

1 The Smith Proposed Class Action in the OSCJ

6 In 2000 a proposed class action was commenced against Canada and

Roche on behalf of members of the CAF who were deployed to Africa in 1992

and allegedly took mefloquine 5

7 Mr Smith alleged that the requirement that he and other members of

the CAF deployed to Africa in 1992 take mefloquine constituted battery was a

breach of fiduciaryduty and amounted to negligence on the part of Canada and

3John Dowe and Anna Zacios Dowe Cyprian Dowe and Thailand Dowe by

Their Litigation Guardian Anna Zacios Dowe v The Attorney General of

Canada and Hoffman La Roche Limited Amended Statement of Claim dated

April 9 2019 Dowe Amended Statement of Claim at paras 4 and 20 Affidavit

of Rebecca Coleman Coleman Affidavit Her Majesty the Queens Motion

Record HMQ MR Tab 2C p 58 and p644

Dowe Amended Statement of Claim at paras 2 4 and 5 HMQ MR Tab 2C p

78

5Smith v Barry Armstrong and the Attorney General of Canada and Hoffmann

La Roche Limited Court File No CP 1737 00 Smith Statement of Claim

dated February 1 2000 Coleman Affidavit HMQ MR Tab 2A pp 17

000352

4

Roche Damages in the amount of 4 billion were claimed for their alleged

injuries suffered as a result of taking the drug 6

8 On September 13 2001 Mr Smith amended his statement of claim

adding a claim that the manner in which the drug was provided to the plaintiffs

breached their rights under the Canadian Charter of Rights and Freedoms

Charter7

9 In April 2018 seventeen years after it was commenced the Smith

proposed class action was dismissed for delay 8

2 The Dowe Proposed Class Action in the OSCJ

10 In January 2019 essentially the same proposed class action was

recommenced in the OSCJ with a new representative plaintiff John Dowe9

Both Canada and Roche are again named as defendants

11 On April 9 2019 the same counsel who represent the plaintiffs in these

Federal Court actions filed an amended statement of claim in Dowe They

6Smith Amended Statement of Claim dated September 13 2001 at paras 1

and 4 HMQ MR Tab 2A pp 28 29

7ibid HMQ MR Tab 2A pp 28 39

8Smith v Armstrong et al 2018 ONSC 2435 Coleman Affidavit HMQ MR Tab

2B pp 41 54

9John Dowe v The Attorney General of Canada and Hoffman La Roche

Limited Statement of Claim dated January 18 2019 HMQ MR Tab 2C pp 56

74 and letter from plaintiffs counsel dated July 22 2019 HMQ MR Tab 2C pp

180 181

000353

5

made significant amendments to the original statement of claim10

For instance

they expanded the class from CAF members who had served in Somalia to

include all members of the CAF members of the Royal Canadian Mounted

Police RCMP and or other federally regulated agents who were seconded to

or served with the CAF or were seconded to and served on United Nations

deployments or other international deployments to various other malaria

endemic regions 11 They also added a claim under the Family Law Act FLA

of Ontario new claims of wilful concealment on the part of Canada and Roche

and new alleged injuries i e tinnitus dizziness vertigo anxiety and

depression 12

12 The plaintiffs in Dowe allege that both Canada and Roche were

negligent in how they provided mefloquine to the class members13 They also

raise the tort of battery against both Canada and Roche14 They claim damages

related to neurological and psychological harms medical expenses and

damages under the FLA for loss of care They also claim punitive damages

against both Canada and Roche15

10Dowe Amended Statement of Claim Coleman Affidavit HMQ MR Tab 21 pp

76 95

11ibid at para 16 HMQ MR Tab 2D p 81

12ibid at paras 12 17 37 and 39 HMQ MR Tab 2D pp 80 82 and 89 90

13ibid at paras 25 and 26 HMQ MR Tab 2D pp 83 86

14ibid at paras 34 HMQ MR Tab 2D p 88

15ibid at paras 45 46 HMQ MR Tab 2D p 92 93

000354

6

13 On July 16 2019 Canada served and filed its Notice of Intent to Defend

in Dowe 16

3 The Federal Court Actions

14 On May 1 2019 three statements of claims were filed in Federal Court

on behalf of eight 8 plaintiffs who were also members of the CAF and who

also allegedly took the anti malarial drug mefloquine 17

15 On August 14 2019 three additional statements of claim were filed in

Federal Court on behalf of one hundred and eighty seven 187 plaintiffs who

were also members of the CAF and who allegedly took the anti malarial drug

mefloqu ine 16

16 Thus so far six 6 Federal Court actions have been filed on behalf of

195 plaintiffs Counsel for the plaintiffs have indicated that they have been

retained by six hundred and eighty eight 688 individuals including the ones

for which actions have already been filed Counsel have also indicated that

16Coleman Affidavit HMQ MR Tab 2E pp 97 102

17Arntsen et al v Her Majesty the Queen in Right of Canada Court File No T

724 19 HMQ MR Tab 2F pp 104 127 Bona et al v Her Majesty the Queen in

Right of Canada Court File No T 725 19 HMQ MR Tab 2G pp 129 156 and

McEachern et al v Her Majesty the Queen in Right of Canada Court File No

T 726 19 HMQ MR Tab 2H pp 158 179

18 Boulay et al v Her Majesty the Queen in Right of Canada Court File No T

1319 19 HMQ MR Tab 2J pp 183 230 Alexander et al v Her Majesty the

Queen in Right of Canada Court File No 1 1320 19 HMQ MR Tab 2K pp

232 270 and Aitken et al v Her Majesty the Queen in Right of Canada Court

File No 1 1321 19 HMQ MR Tab 2L pp 272

000355

7

they expect to be retained by several hundred more individuals19

Several

additional actions are therefore expected to be brought in Federal Court

17 Many of the same or similar allegations made by the plaintiffs in Dowe

against Roche to support their claim that it breached its duty of care are also

made against Canada in these Federal Court actions A chart comparing these

allegations is attached as Annex I to these written representations

18 The allegations made by the plaintiffs against Canada in Dowe to

support their claim that it breached its duty ofcare are identical or similar to the

allegations made against Canada in these Federal Court actions The plaintiffs

also raise breach of fiduciary duty battery and breach of their rights under the

Charter against Canada in both Dowe and in these Federal Court actions A

chart comparing the allegations of breach of duty of care and the torts raised

against Canada in both proceedings is attached as Annex ll to these written

representations

PART II POINTS IN ISSUE

19 The issue in this motion is whether the Federal Court should stay these

proceedings pursuant to section 50 1 and paragraphs 50 1 a and b of the

Federal Courts Act

19Coleman Affidavit para 12 HMQ MR Tab 2 p 13 and Tab 2M p

000356

8

PART III SUBMISSIONS

A A STAY OF PROCEEDINGS SHOULD BE GRANTED UNDER SECTION

50 1 OF THE FEDERAL COURTS ACT

20 Section 50 1 provides in part as follows

50 1 1 Stay of Proceedings The Federal Court shall on

application of the Attorney General of Canada stay proceedings

in any cause or matter in respect of a claim against the Crown

where the Crown desires to institute a counter claim or third party

proceedings in respect of which the Federal Court lacks

jurisdiction

2 Recommence in provincial court if the Federal Court

stays the proceedings under subsection 1 the party who

instituted them may recommence the proceedings in a court

constituted or established under a law of a province and

otherwise having jurisdiction with respect to the subject matter of

the proceedings

21 The Federal Court has held that the purpose of section 50 1 is to ensure

that issues in a claim against the Crown are not split between the Federal Court

and Provincial Courts2

To succeed on a section 50 1 motion Canada must

demonstrate that 1 the Crown genuinely desires to institute a third party

claim and 2 the third party claim is outside the jurisdiction of the Federal

Court21

20 StoneyBand v Canada Minister of Indian and NorthernAffairs 2006 FC 553

at para 25 Her Majesty the Queens Book of Authorities HMQ BOA Tab

8

21Dobbie v Canada Attorney General 2006 FC 552 at para 8 Dobbie HMQ

BOA Tab

000357

9

1 Canadas Desire to institute a Third Party Claim is Genuine

22 To satisfy the first requirement The Federal Court will consider the

following three elements

a the evidence of a genuine desire to commence a third party

proceeding

b whether the information provided about the proposed third party

claim is clear or if it is vague and un particularized and

c whether the third party claim has any possible likelihood of

success22

a Evidence of a genuine desire to commence a third party claim

23 As mentioned Roche is the manufacturer and distributor of the anti

malarial drug mefloquine which the plaintiffs allege caused them harm Roche

was named as a defendant in Smith and again in Dowe

24 The plaintiffs in Dowe allege that both Canada and Roche were

negligent in how they provided mefloquine to the class members and claim

punitive damages against both of them Annex I shows the similarities between

the allegations of breaches of duty of care made against Roche in Dowe and

those made against Canada in these Federal Court actions Should the

allegations against Roche in Dowe be proven to be true and assuming

causation is established Roche would be partially or entirely responsible for

the injuries the plaintiffs allege they have suffered because of taking mefloquine

22ibid at para 11 HMQ BOA Tab

000358

10

in these 6 Federal Court actions As such Roche should also defend against

the plaintiffs allegations in Federal Court

25 Canadas desire to Commence a third party claim against Roche is

genuine Indeed since Roche is already a defendant in the OSCJ Canada

intends to deliver a defence and cross claim against Roche in that Court

b The information provided about the third party claim is clear

26 In a motion under section 50 1 of the Federal Courts Act the Federal

Court does not require that Canadas third party claim satisfy the ordinary rules

of pleading As long as it shows the general basis of the claim it will satisfy the

requirement that the information about the claim is clear23

27 A draft third party claim which sets out the basis upon which Canadas

third party claim would be made is attached as Annex III to these written

representations The information provided about the third party claim is clear

The draft third party claim also provides further support of Canadas genuine

desire to institute a third party claim against Roche in these Federal Court

actions

c The third party claim has a possible likelihoodofsuccess

28 To satisfy the third element Canada has to demonstrate that its claim

plainly has a possibility of success The Federal Court has defined this

23ibid at para 14 HMQ BOA Tab

000359

11

threshold as a much lower threshold than reasonable likelihood of success24

A further assessment of the merits of the claim falls to the judge seized with

the hearing of the action on its merits25

29 The mere existence of essentially the same claim in the OSCJ where

Roche is already a defendant and where the plaintiffs have made the same or

similar allegations of breaches of duty of care against both Roche and Canada

shows that Canadas proposed third party claim in these Federal Court actions

has a possibility of success

30 Even if the plaintiffs were successful in discontinuing their claim against

Roche in the OSCJ Canadas proposed third party claim would still have a

possibility of success The fact that Roches potential liability in relation to its

role in the SMS in the early 1990s and its distribution of mefloquine has been

raised justifies Roches involvement in these proceedings 26

24ibid at paras 17 and 18 HMQ BOA Tab 3

25ibid at para 17 HMQ BOA Tab 3

26Almost identical circumstances were present in Dobbie In that case the

Federal Court found that Canadas proposed third party claim for contribution

and indemnity against the manufacturers and distributors of Agent Orange that

was alleged to have caused injuries to the plaintiff class members who were

soldiers and civilians at CFB Gagetown had a possibility of success Agent

Orange along with Agent White and Agent Purple were sprayed on and

around CFB Gagetown by aircraft in a test spraying Dobbie class members

also included civilians who lived in the area Dobbie at para 4 HMQ BOA Tab

3

000360

12

2 The Third Party Claim is Outside the Jurisdiction of the Federal

Court

31 Fora proceeding to be within the jurisdiction of the Federal Court it must

satisfy the three part test established by the Supreme Court of Canada in ITO

International Terminal Operators v Miida Electronics27

For the Federal Court

to be properly seized of the matter

1 there must be a statutory grant of jurisdiction by the

federal Parliament

2 there must be an existing body of federal law which is

essential to the disposition of the case and which

nourishes the statutory grant of jurisdiction and

3 The law on which the case is based must be a law of

Canada as the phrase is used in s 101 of The

Constitution Act 186728

32 The first part of the TO test requires that a federal statute grant

jurisdiction to the Federal Court The cause of action of the claimant must be

founded on some existing federal law whether statute or regulation or

common law29

Canadas third party claim for contribution and indemnity

against Roche would not be founded on some existing federal law but rather

on the Negligence Act of Ontario It would therefore fall outside the jurisdiction

of the Federal Court Accordingly the first part of the TO test is not met

271986 1 SCR 752 ITO HMQ BOA Tab 4 The three part test in ITO was

recently confirmed by the SCC in Windsor City v Canadian Transit Co 2016

SCC 54 at para 34 Windsor HMQ BOA Tab 10

28ITO at para 12 p 766 HMQ BOA Tab 4

29Windsor at para 42 HMQ BOA Tab

000361

13

33 The second and third part of the TO test are also not met as there is no

existing body of federal law essential to the disposition of the case and the law

on which the case would be based would not be a law of Canada3

The

Federal Court has held that the second and third elements often overlap 31

B A STAY OF PROCEEDINGS SHOULD ALSO BE GRANTED UNDER

PARAGRAPHS 50 1 A AND B OF THE FEDERAL COURTS ACT

34 Paragraphs 50 1 a and b provide as follows

50 1 Stay of proceedings authorized The Federal Court of

Appeal or the Federal Court may in its discretion stay

proceedings in any cause or matter

a on the ground that the claim is being proceeded

with in another court or jurisdiction or

b where for any other reason it is in the interest of

justice that the proceedings be stayed

35 In determining whether to stay proceedings under paragraph 50 1 a

and b of the Federal Courts Act the Federal Court may consider a number of

factors including whether the alleged facts legal issues and relief sought are

similar whether the continuation of the action would cause prejudice and

injustice whether a stay would work injustice on the plaintiff the possibility of

30 See for instance Dobbie at para 24 where Canadas third party claim

against the manufacturers and distributors of Agent Orange was governed

entirely by the common law of negligence and New Brunswicks Tortfeasors

Act HMQ BOA Tab 3

31 lbid para 23 HMQ BOA Tab

000362

14

inconsistent decisions and securing the just most expeditious and least

expensive determination of every proceeding on its merits32

36 Dowe and these Federal Court actions are about the same facts and

legal issues For instance in both claims the plaintiffs allege that members of

the CAF were ordered to take mefloquine before being deployed to malaria

endemic regions Both claims deal with the same series of deployments Both

claims allege that the CAF and DND knew or ought to have known that

mefloquine causes serious neurological and psychiatric side effects The torts

raised and the reliefs sought are also the same or similar

37 The plaintiffs in both cases allege that the CAF and DND were aware

of the risks of taking mefloquine and wilfully concealed them or failed to warn

of the risks and failed to properly screen individuals before ordering that they

take the drug In both courts the plaintiffs seek a series of declarations along

with hundreds of millions of dollars in damages for not only negligence and

negligent misrepresentation but also breach of fiduciary duty battery and

breaches of the Charter Annex II shows the similarities between the

allegationsof breach of duty of care and the torts raised against Canada in both

proceedings

32Rakuten Kobo Inc v Canada Commissioner of Competition 2017 FC 382

at para 24 HMQ BOA Tab 6 Canada Attorney General v Cold Lake First

Nations 2015 FC 1197 at paras 20 and 21 HMQ BOA Tab 1 Federal Courts

Rules S0R198 106 Rule 3 Coote v Lawyers Professional Indemnity

Company 2013 FCA 143 at para 12 HMQ BOA Tab

000363

15

38 The proposed class in Dowe may be broader than the list of plaintiffs in

these Federal Court actions as it includes not only members of the CAF but

also members of the RCMP and other federal agents that may have been

deployed to malaria endemic regions However all 195 plaintiffs in these

Federal Court actions could be class members in Dowe

39 The Federal Court has held that where everything that can be

pleaded discussed or decided in the proceeding before this Court is included

in another proceeding the duplicative Federal Court action should be stayed

pursuant to subsection 50 1 33

40 Dowe is sufficiently broad to include everything that can be pleaded

discussed or decided in the Federal Court actions The statement of claim has

been amended by the same counsel who represent the plaintiffs in these

Federal Court actions to include all conceivable claims and damages and

covers the same plaintiffs

41 In Royal Bank v Canadian Imperial Bank of Commerce the Federal

Court stayed a proceeding before the Registrar of Trademarks until the

outcome of a trade mark infringement action pending before the Federal Court

was determined The Court held that the continuation of the administrative

proceedings could cause serious prejudice to the parties and would be an

abuse of the judicial process inasmuch as it would allow decisions to be made

Vilhena Shipping Ltd V Agro Hall Ltd 2003 FCT 756 at para 22 HMQ BOA

Tab

000364

16

without the benefit of highly relevant evidence in circumstances where such

evidence is known to exist and is available to both parties 34

42 As the manufacturer of mefloquine Roche would possess the most

relevantevidenceand expertiseon the medical effects of the anti malarial drug

which it would likely provide to the Court to defend itself in Dowe That

evidence including potential experts employed by Roche would not be readily

available to Canada in these Federal Court proceedings where it is the sole

defendant

43 More generally allowing these proceedings to continue in the Federal

Court would require Canada to litigate in both the Federal Court and Superior

Court in order to maintain a claim for contribution and indemnityagainst Roche

Such duplicative proceedings are clearly prejudicial to Canada

44 Furthermore Dowe is procedurally farther along Canada is prepared to

serve and file a defence and cross claim in that case There are still numerous

actions to be brought in Federal Court and plaintiffs counsel have not been

able to provide Canada or the Court with a timetable of when these actions will

be brought

45 Staying the proceedings in Federal Court would not cause any injustice

to any of the 195 plaintiffs that have already filed their cases in the Federal

Court or for any of the other hundreds of individuals who will eventually file

34 Royal Bank v Canadian Imperial Bank of Commerce 1994 FCJ No 1341

84 FTR 148 at para 16 HMQ BOA Tab

000365

17

theirs As mentioned they should all be members of the proposed class in

Dowe

46 Proceeding with the proposed class action in the OSCJ would be the

most efficient process and consistent with the principles of justice as it would

allow the parties to avail themselves of established rules on class action

litigation Neither the Federal Courts Act nor the Federal Courts Rules address

mass torts Proceeding in the OSCJ also has the added benefit of already

having the drug manufacturer as one of the defendants who could potentially

be found responsible for the plaintiffs alleged damages

47 Moreover there is always a possibility of inconsistent findings of fact

and liability between the Federal Court and the OSCJ if both proceedings are

allowed to continue

48 Even when two proceedings are very close in similarity but are not

exactly parallel the Federal Court has found that s ection 50 equally leaves

it open to the Federal Court to exercise its discretion where the interest of

justice requires an order of stay 35

49 Indeed even if the Federal Court were to find that a stay of proceedings

is not justified under s 50 1 such a stay should still be justified under

paragraphs 50 a and b based on the mere fact that essentially the same

35 Ouje Bougoumou Cree Nation v Canada 1999 FCJ No 1827 176 FTR 307

at para 12 HMO BOA Tab

000366

18

claim has been commenced in the OSCJ36

It would be in the interest of justice

that the matter be litigated in that Court where Roche is already a co defendant

PART IV ORDER SOUGHT

50 For these reasons Canada seeks an order granting a stay of

proceedings pursuant to section 50 1 and paragraphs 50 1 a and b of the

Federal Courts Act

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated at Toronto this November 5 2019




120 Adelaide Street West

Suite 400

Toronto Ontario

M5H 111

Per Joel Robichaud

Tel 647 256 0546



Tel 647 256 0574


Per Wendy Wright

Tel 647 256 0577


Solicitor for the Defendant

36 Windsor at para 124 HMQ BOA Tab

000367

19

File 10704430

TO The Administrator

Federal Court of Canada

180 Queen StreetWest

Suite 200

Toronto Ontario

M5V 3L6

AND TO Howie Sacks and Henry LLP

Suite 3500 20 Queen Street

West Toronto ON M5H 3R3

Paul Miller on behalf of the

Plaintiffs pmillealishlawyerscom

Tel 416 361 5990

Fax 416 361 0083

AND TO Waddell Phillips PC

Barristers Suite 1120 36

Toronto Street Toronto ON

M5C 2C5

John Kingman Phillips on behalf of the

Plaintiffs johnemaddellphillipsca

Tel 647 220 7420

Fax 416 477 1657

000368

20

PART V LIST OF AUTHORITIES

1 Stoney Band v Canada Minister of Indian and Northern Affairs

2006 FC 553

2 Dobbie v Canada Attorney Genera 2006 FC 552

3 ITO International Terminal Operators v Miida Electronics 1986 1

SCR 752

4 Windsor City v Canadian Transit Co 2016 SCC 54

5 Rakuten Kobo Inc v Canada Commissioner of Competition 2017

FC 382

6 Canada Attorney General v Cold Lake First Nations 2015 FC 1197

7 Coote v Lawyers Professional IndemnityCompany 2013 FCA 143

8 Vilhena Shipping Ltd v Agro Hall Ltd 2003 FCT 756

9 Royal Bank v Canadian ImperialBank of Commerce 1994 FCJ No

1341 84 FTR 148

10 Ouje Bougoumou Cree Nation v Canada 1999 FCJ No 1827 176

FTR

000369

21

APPENDIX A STATUTES AND REGULATIONS

Federal Courts Act

R S C 1985 c F 7

Loi sur les Cours federales

L R C 1985 ch F 7

Stay of proceedings authorized Suspension dinstance

50 1 The Federal Court of Appeal or

the Federal Court may in its

discretion stay proceedings in any

cause or matter

50 1 La Cour dappel federate et la

Cour federale ont le pouvoir

discretionnaire de suspendre les

procedures dans toute affaire

0 a on the ground that the claim is

being proceeded with in another

court or jurisdiction or

0 a au motif que la demande est en

instance devant un autre tribunal

0 b lorsque pour quelque autre

raison linteret de la justice

lexige

0 b where for any other reason it

is in the interest of justice that the

proceedings be stayed

Stay of proceedings Suspension des proc6dures

50 1 1 The Federal Court shall on

application of the Attorney General of

Canada stay proceedings in any

cause or matter in respect of a claim

against the Crown where the Crown

desires to institute a counter claim or

third party proceedings in respect of

which the Federal Court lacks

jurisdiction

50 1 1 Sur requete du procureur

general du Canada la Cour federale

ordonne la suspensiondes

procedures relatives A toute

reclamation contre la Couronne A

regard de laquelle cette derniere

entend presenter une demande

reconventionnelle ou proceder A une

mise en cause pour lesquelles la

Cour na pas competence

Recommence in provincial court

Reprise devant un tribunal

provincial2 If the Federal Court stays

proceedings under subsection 1

the party who instituted them may

recommence the proceedings in a

court constituted or established by or

under a law of a province and

otherwise having jurisdiction with

respect to the subject matter of the

proceedings

2 Le demandeur dans laction

principale peut apres le prononce de

la suspension des procedures

reprendre celles ci devant le tribunal

competent institue par loi provinciale

ou sous le regime de celle

000370

22

Prescription and limitation of

actions

Prescription

3 Pour lapplication des les de

droit en matiere de prescription dans

le cadre des procedures reprises

conformement au paragraphe 2 est

reputee etre la date de lintroductionde laction celle de son introduction

devant la Cour federale si la reprise

survient dans les cent jours qui

suivent la suspension

3 If proceedings are recommenced

under subsection 2 within 100 days

after the proceedings are stayed in

the Federal Court the claim against

the Crown in the recommenced

proceedings is deemed for the

purposes of any laws relating to

prescription and the limitation of

actions to have been instituted on

the day the proceedings in the

Federal Court were instituted

1990 ch 8 art 16

2002 ch 8 art 47

1990 c 8 s 16

2002 c 8 S 47

Negligence Act

R S O 1990 CHAPTER N 1

Loi sur le partage de la

responsabilite

L R O 1990 CHAPITRE N 1

a Extentof liability remedy over

1 Where damages have been

caused or contributed to by the fault

or neglect of two or more persons

the court shall determine the degree

in which each of such persons is at

fault or negligent and where two or

more persons are found at fault or

negligent they are jointly and

severally liable to the person

suffering loss or damage for such

fault or negligence but as between

themselves in the absence of any

contract express or implied each is

liable to make contribution and

indemnify each other in the degree in

which they are respectively found to

be at fault or negligent R S O 1990

c N 1 s 1

a Partage de la responsabilite

indemnisation

1 Si deux ou plusieurs personnes

ont par leur faute ou par leur

negligence cause des dommages ou

contribue a en causer le tribunal

determine leurs parts respectives de

responsabilite Les personnesdont le

tribunal a constate la faute ou la

negligence sont solidairement

responsables envers la personne qui

a subi la perte ou le dommage en ce

qui concerne leur responsabilite

mutuelle a defaut de contrat entre

elles meme implicite chaque

personneest tenue de verser une

contribution aux autres et de les

indemniser selon la part de

responsabilite que le tribunal lui a

attribuee L R O 1990 chap N 1

art

000371

23

b Recovery as between tortfeasors

2 A tortfeasor may recover

contribution or indemnity from any

other tortfeasor who is or would if

sued have been liable in respect of

the damage to any person suffering

damage as a result of a tort by

settling with the person suffering

such damage and thereafter

commencing or continuing action

against such other tortfeasor in

which event the tortfeasor settling the

damage shall satisfy the court that

the amount of the settlement was

reasonable and in the event that the

court finds the amount of the

settlement was excessive it may fix

the amount at which the claim should

have been settled R S O 1990

c N 1 s 2

b Recouvrement entre coauteurs

2 Lauteur dun delft civil peut

recouvrer une contribution ou une

indemnite dun coauteur du delft Si

ce dernier est responsable des

dommages subis par la victime du

ou laurait ete en cas de

poursuite de la fawn suivante

transige avec la victime et ensuite

intente une action contre son

coauteur ou poursuit laction déjà

engagee Dans ce cas le coauteur

qui a effectue la transaction doit

convaincre le tribunal que le montant

de la transaction etait raisonnable Si

le tribunal constate que le montant

etait excessif il peut fixer le montant

auquel la transaction aurait dü

selever L R O 1990 chap N 1 art

2

c Plaintiff guilty of contributory

negligence

3 In any action for damages that is

founded upon the fault or negligence

of the defendant if fault or negligence

is found on the part of the plaintiff

that contributed to the damages thes

court shall apportion the damages in

proportion to the degree of fault or

negligence found against the parties

respectively R S O 1990 c N 1

s 3

c Demandeur egalement coupable

de negligence

3 Dans une action en dommages

interets qui se fonde sur la faute ou la

negligence du defendeur si le

tribunal constate quil y a eu de la

part du demandeur faute ou

negligence qui a contribue aux

dommages le tribunal repartit les

dommages interets selon la part

respective de responsabilitede

chaque partie L R O 1990 chap

N 1 art 3

d Where parties to be deemed

equally at fault

4 If it is not practicable to determine

the respective degree of fault or

negligence as between any parties to

an action such parties shall be

deemed to be equally at fault or

negligent R S O 1990 c N 1 S 4

d Responsabilite reputee egale

4 Sil savere trop difficile de

determiner la part de responsabilite

attribuable a regard de la faute oU

de la negligence a chaque partie

une action les parties sont reputees

egalement responsables L R O

1990 chap N 1 art

000372

24

e Adding parties

5 Wherever it appears that a person

not already a party to an action is or

may be wholly or partly responsible

for the damages claimed such

person may be added as a party

defendant to the action upon such

terms as are considered just or may

be made a third party to the action in

the manner prescribed by the rules of

court for adding third parties R S O

1990 c N 1 s 5

e Jonction de parties

5 Sil appert quune personne qui

nest pas déjà partie A laction

pourrait etre redevable en tout ou en

partie des dommages interets

demandes la personne peut etre

jointe a laction comme defendeur A

des conditions qui sont estimees

justes Elle peut egalement etre mise

en cause conformement aux regles

de pratique en matiere de mise en

cause L R O 1990 chap N 1 art

5

t Jury to determine degrees of

negligence ofparties

6 In any action tried with a jury the

degree of fault or negligence of the

respective parties is a question of

fact for the jury R S O 1990 c N 1

s 6

t Le jury determine la part de

responsabilite des parties

6 Dans une action instruite devant un

jury la part de responsabilite

attribuable aux parties A regard de la

faute ou de la negligence est une

question de fait qui releve du

jury L R O 1990 chap Ni art 6

g When plaintiff may be liable for

costs

T Where the damages are

occasioned by the fault or negligence

of more than one party the court has

power to direct that the plaintiff shall

bear some portion of the costs if the

circumstances render this just

R S O 1990 c N 1 s 7

8 Repealed 2002 c 24 Sched B

s 25

g Condamnation du demandeur aux

depens

7 Si les dommages sont causes par

la faute ou la negligence de plusieurs

parties le tribunal peut ordonnerque

le demandeur paie une partie des

depens Si les circonstances le

justifient L R O 1990 chap Ni

art 7

8 Abroge 2002 chap 24 annexe B

art

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

000373

Canada

in

the

Federal

Court

Action

Cause

of

Action

BREACHES

OF

DUTY

OF

CARE

Failingto

follow

the

Lariam

Study

protocol

Failing

to

obtain

informed

consent

from

the

Plaintiffs

to

participatein

the

Lariam

studyor

to

take

Mefloquine

Failing

to

obtain

informed

consent

from

the

Plaintiffs

to

participatein

the

Lariam

studyor

to

take

Mefloquine

Failingto

warn

the

plaintiffsnot

to

consume

alcohol

while

taking

Mefloquinebecause

of

the

risk

of

adverse

interactions

with

alcohol

including

the

greatly

increased

risk

of

experiencingmental

problems

TVIll

011N

I1UWIn

Failingto

providea

medication

guideor

other

information

to

the

Plaintiffs

regardingthe

properuse

of

Mefloquine

VIJVI

II

IGUlloCal

J

IGGI

III

IU

A

0111

1

111

11VGILIVI

1

2

Failing

to

tell

the

plaintiffsto

immediatelystop

taking

Mefloquineif

they

experiencedanyof

the

following

symptoms

mental

problems

including

anxiety

depression

paranoia

hallucinations

feeling

restless

confused

or

disoriented

unusual

behaviour

or

changesto

mood

nervous

system

Para

NEGLIGENCE

NEGLIGENT

MISREPRESENTATION208

a

208

c

208

c

co

o

CV

tO

co

o

CV

co

o

CV

c

co

c

CV

ai

co

o

CV

co

o

CV

Roche

in

the

Dowe

ProposedClass

Action

Para

I

Cause

of

Action

It

failed

to

follow

the

Lariam

Study

It

failed

to

obtain

informed

consent

from

Dowe

and

the

Class

Members

to

administer

Mefloquine

It

failed

to

obtain

consent

from

Dowe

and

the

Class

Members

to

participatein

the

Lariam

Study

It

failed

to

advise

Dowe

and

the

Class

Members

to

abstain

from

alcohol

consumptionwhile

taking

Mefloquine

dl

IU

blUd

VI

lei

LClJJUlfICRCU

VV11

11

IG

26

a

26

b ci

co

CV

16

0

CV

ai

CO

CV

CO

CV

000374

Canada

in

the

Federal

Court

Actions

Cause

of

Action

changes

includingdizziness

spinning

ringingin

the

ears

loss

of

balance

seizures

or

convulsions

or

issues

with

nerves

including

pricklingor

tinglingsensations

numbness

and

loss

of

an

abilityto

feel

painor

changesin

temperaturea

burning

or

sharp

pain

loss

of

balance

or

co

ordination

feeling

pain

from

a

very

lighttouch

or

muscle

weakness

or

paralysis

Orderingthe

Plaintiffs

to

continue

taking

Mefloquineafter

the

above

symptomswere

reported

Failingto

consider

and

account

for

the

risk

of

interaction

of

Mefloquinewith

other

psychologicalconditions

and

injuries

commonly

experiencedby

CAF

Members

including

anxiety

depressionposttraumatic

stress

disorder

and

traumatic

brain

injury Failing

to

properly

investigatethe

side

effects

adverse

reactions

and

complicationsexperiencedby

the

Plaintiffs

and

other

CAF

members

as

a

result

of

taking

Mefloquine

Failing

to

report

side

effects

adverse

reactions

and

complications

experiencedby

the

Plaintiffs

and

other

CAF

Members

to

Health

Canada

or

the

manufacturer

Requiringthat

the

Plaintiffs

take

an

anti

malarial

drugthat

was

unsuitable

for

use

in

a

militaryor

combat

setting

Failingto

provideand

or

consider

suitable

alternative

anti

malarial

drugsto

Mefloquine

ParaC

co co

0 0

CV CV

co

0

CV

E

co

0

CV

ci 6

OD CO

0 0

CV CV

Roche

in

the

Dowe

ProposedClass

Action

Cause

of

Action

It

failed

to

ensure

that

Canada

was

adheringto

the

Safety

MonitoringStudy2

It

failed

to

properly

investigatethe

side

effects

associated

with

MefloquineIt

continued

to

supply

Mefloquineto

Canada

when

it

knew

or

oughtto

have

known

that

the

Safety

MonitoringStudywas

not

beingfollowed

It

failed

to

ensure

propercommunication

was

occurring

between

Hoffmann

and

Canada

so

that

Hoffmann

and

Canada

could

be

advised

of

the

side

effects

being

experiencedby

Dowe

and

the

Class

Members

It

supplieda

drugto

Dowe

the

Class

Members

and

Canada

that

it

knew

or

oughtto

have

known

was

unsuitable

for

military

use

Para 26gC

13

CV

CO

CV

CD

12

CD

CV

CNI

2

This

allegation

alongwith

26

i

and

26

m

could

not

exist

against

I 000375

I

I

I

I

I

1

ICanada

in

the

Federal

Court

Actions

Cause

of

Action

I

G

G

41

4111

I

1

11

1

411

160

111U

Failing

to

obtain

informed

consent

from

the

Plaintiffs

to

participatein

the

Lariam

studyor

to

take

Mefloquine

Puttingits

own

interests

ahead

of

the

interest

of

the

Plaintiffs

by

ignoringand

remaining

wilfully

blind

to

the

risks

of

Mefloquineto

individual

CAF

Members

DND

and

CAF

repeatedly

representedto

the

Plaintiffs

and

CAF

members

as

a

whole

that

Mefloquinewas

safe

These

representationsspecifically

downplayedor

denied

the

risks

associated

with

Mefloquineand

were

inaccurate

incomplete

false

deceptiveand

or

misleading

Canada

knew

our

ought

to

have

known

that

the

representationsmade

by

CAF

and

DND

regardingthe

safety

of

Mefloquinewere

inaccurate

incompletefalse

deceptive

and

or

misleadinassociated

with

Mefloquineand

were

inaccurate

incomplete

false

deceptiveand

or

misleading

Canada

knew

our

ought

to

have

known

that

the

representationsmade

by

CAF

and

DND

regardingthe

safety

of

Mefloquinewere

inaccurate

incompletefalse

deceptive

and

or

misleading

BATTERY

The

Plaintiffs

assert

that

the

forced

ingestionof

Mefloquine

without

their

consent

in

the

circumstances

pleadedabove

amounts

to

battery

ParaSi

CO

0

4

Ci

CO

0

01

CO

0

4

N C 1

C 1

e

C71

CV

C71CI

1

Roche

in

the

Dowe

ProposedClass

Action

Cause

of

Action

LI

ellIt

providedinaccurate

or

misleadinginformation

to

Canada

concerningthe

efficacyof

Mefloquine

It

ignoredcalls

to

discontinue

the

use

of

the

Mefloquine

It

providedstatements

to

the

public

includingall

Class

Members

that

willfullyconcealed

the

true

facts

and

adverse

findingswith

respectto

Mefloquine

damagesthat

occurred

were

caused

by

or

contributed

to

by

the

acts

and

omissions

of

Hoffman

Dowe

and

the

Class

Members

state

their

forced

ingestionof

Mefloquinewithout

their

consent

in

the

circumstances

pleadedabove

amounts

to

battery

ParaCOCN1

0CV

CO

CV

6

CO

OJ

6

CO

CV

v01

I

Ico

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

I

000376

Canada

in

the

Federal

Court

Actions

Cause

of

Action

NI

BREACHES

OF

DUTY

OF

CARE

Failingto

follow

the

Lariam

Study

protocol

Orderingthe

Plaintiffs

on

painof

court

martial

to

take

a

drug

that

it

knew

or

oughtto

have

known

was

not

safe

and

could

have

serious

and

longterm

adverse

health

effects

Failingto

obtain

informed

consent

from

the

Plaintiffs

to

participatein

the

Lariam

studyor

to

take

Mefloquine

Failingto

obtain

informed

consent

from

the

Plaintiffs

to

participatein

the

Lariam

studyor

to

take

Mefloquine

Failingto

adhere

to

International

and

Canadian

standards

regarding

experimentson

human

beings

Orderingthe

Plaintiffs

on

painof

court

martial

to

take

a

drug

that

it

knew

or

oughtto

have

known

was

not

safe

and

could

have

serious

and

longterm

adverse

health

effects

Failingto

warn

the

plaintiffsnot

to

consume

alcohol

while

taking

Mefloquinebecause

of

the

risk

of

adverse

interactions

with

alcohol

including

the

greatly

increased

risk

of

experiencingmental

problems

Failingto

providea

medication

guideor

other

information

to

the

Plaintiffs

regardingthe

properuse

of

Mefloquine

Failing

to

adequatelywarn

the

Plaintiffs

of

the

risks

associated

with

taking

Mefloquine

Para

NEGLIGENCE

NEGLIGENT

MISREPRESENTATIOIco

co

00

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ci

co

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co co

0 0

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co

0

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co

0

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ci

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0 0

CV CV

Canada

in

the

Dowe

ProposedClass

Action

Cause

of

Action

It

failed

to

follow

the

Lariam

Study

The

DND

and

or

the

CAF

ordered

Dowe

and

the

Class

Members

to

take

a

drugthat

it

knew

or

oughtto

have

known

was

not

safe

and

was

not

approvedfor

use

by

Health

CanadaIt

failed

to

obtain

informed

consent

from

Dowe

and

the

Class

Members

to

administer

Mefloquine

It

failed

to

obtain

informed

consent

from

Dowe

and

the

Class

Members

to

participatein

the

Lariam

Study

The

DND

and

or

the

CAF

ordered

Dowe

and

the

Class

Members

to

take

a

drugthat

it

knew

or

oughtto

have

known

was

not

safe

despiteit

being

approvedfor

use

by

Health

CanadaIt

failed

to

advise

Dowe

and

the

Class

Members

to

abstain

from

alcohol

consumptionwhile

taking

MefloquineThe

DND

and

or

CAF

suppliedDowe

and

the

Class

Members

with

alcohol

for

consumptionwhile

taking

MefloquineIt

failed

to

advise

Dowe

and

the

Class

Members

of

the

risks

and

side

effects

associated

with

Mefloquine

al et

t4 I

CV CV 25

c Ci

Ln

CV

6

in

CV

in

CV

ch

Lo

CV

c

in

000377

1CCM

1

JJ

OVILUI

VO

I

V

UIJIL7110

IJOUGO

VVIll

I

nerves

including

pricklingor

tinglingsensations

numbness

and

loss

of

an

abilityto

feel

painor

changesin

temperature

a

burningor

sharp

pain

loss

of

balance

or

co

ordination

feeling

painfrom

a

very

lighttouch

or

muscle

weakness

or

paralysis Orderingthe

Plaintiffs

to

continue

taking

Mefloquineafter

the

1

11G

I

101111

1110

1

Cc4I

I

All

IJ

LI

IC

JI

IJ1JCI

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041

411

Failing

to

adequatelywarn

the

Plaintiffs

of

the

risks

associated

with

taking

Mefloquine

1

1

UF

G1

II

IGU

Meal

Olol

CCI

III

I

11

11

A

0111

1C1111

11

011

1

1110

Failing

to

tell

the

plaintiffsto

immediatelystop

taking

Mefloquineif

they

experiencedany

of

the

following

symptomsmental

problems

including

anxiety

depression

paranoia

hallucinations

feeling

restless

confused

or

6

CO

o

ai00

o

CO

o

c0

cp

C

CO

o

4

co

o

ci

CO

o

u

co

a

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co

o

co

o

cv

CI C 1 CV CNI C 1 N1 0 14 04 I

Ilbt

b

di

IUblUe

el

IMAJ

VVILI

I

IVIClIV1jUll

IC

It

failed

to

administer

Mefloquineto

Dowe

and

the

Class

Members

in

a

safe

and

competent

manner

1

0 Lo 10 CV

C 1 CV 1

0

000378

disoriented

unusual

behaviouror

changesto

mood

nervous

system

changes

includingdizziness

spinning

ringingin

the

ears

loss

of

balance

seizures

or

convulsions

or

issues

with

nerves

including

pricklingor

tinglingsensations

numbness

and

loss

of

an

abilityto

feel

painor

changesin

temperature

a

burningor

sharp

pain

loss

of

balance

or

co

ordination

feeling

painfrom

a

very

lighttouch

or

muscle

weakness

or

paralysis Orderingthe

Plaintiffs

to

continue

taking

Mefloquineafter

the

above

symptomswere

reported

Failingto

consider

and

account

for

the

risk

of

interaction

of

Mefloquinewith

other

psychologicalconditions

and

injuries

commonly

experiencedby

CAF

Members

including

anxiety

depression

posttraumatic

stress

disorder

and

traumatic

brain

injuryFailingto

properly

investigatethe

side

effects

adverse

reactions

and

complications

experiencedby

the

Plaintiffs

and

other

CAF

members

as

a

result

of

taking

Mefloquine

Failing

to

provide

necessarymedical

treatment

to

the

Plaintiffs

in

a

timelymanner

Failing

to

refer

the

Plaintiffs

to

appropriatemedical

specialistsin

a

timelymanner

or

at

all

Failing

to

monitor

or

record

adverse

reactions

and


the

Plaintiffs

and

other

CAF

members

as

a

result

of

taking

Mefloquine

Failingto

properly

investigatethe

side

effects

adverse

reactions

and

complications

experiencedby

the

Plaintiffs

and

other

CAF

members

as

a

result

of

taking

Mefloquine

Failingto

provideand

or

consider

suitable

alternative

anti

malarial

drugsto

Mefloquine

Failingto

provideand

or

consider

suitable

alternative

anti

malarial

drugsto

Mefloquine

Requiringthat

the

Plaintiffs

take

an

anti

malarial

drugthat

was

unsuitable

for

use

in

a

militaryor

combat

setting

C

00 c0

0 0

CV CN1

CO

0

Ni 208

q

CO

0

C i

CO CO

0 0

CNI CV 208

o

208

o

208

p

It

failed

to

diagnosethe

adverse

reactions

and

complications

experiencedby

Dowe

and

the

Class

Members

resultingfrom

takingof

Mefloquine

It

failed

to

provide

necessarytreatment

in

a

timely

manner

to

Dowe

and

the

Class

members

It

failed

to

refer

Dowe

and

the

Class

Members

to

appropriatemedical

specialistsin

a

timelymanner

or

at

all It

failed

to

properly

investigatethe

side

effects

associated

with

Mefloquine

It

failed

to

consider

suitable

alternative

drugs

to

MefloquineIt

failed

to

provideDowe

and

the

Class

Members

with

suitable

alternative

drugsto

Mefloquine

It

selected

an

anti

malaria

drugthat

was

unsuitable

for

use

by

the

military

25

k

tr

CV

ELc

C

Lo

C 1 250 25

p

000379

Failing

to

report

side

effects

adverse

reactions

and


the

Plaintiffs

and

other

CAF

Members

to

Health

Canada

or

the

manufacturer

i

Mefloquineto

individual

UAl

members

Failingto

provideand

or

consider

suitable

alternative

anti

malarial

drugsto

Mefloquine

i

associated

with

Mefloquine

and

were

inaccurate

incompletefalse

deceptiveand

or

misleading

Canada

knew

our

ought

to

have

known

that

the

representationsmade

by

CAF

and

DND

regardingthe

safety

of

Mefloquinewere

inaccurate

incompletefalse

deceptive

and

or

misleading

E

co

0

CV

E

co

0

CV

co

0

CV

6

CO

0

CV

N

N

CV

CV

IR 211 212i

The

DND

failed

to

advise

Hoffman

La

Roche

of

the

side

effects

experiencedby

Dowe

and

the

Class

Members

It

failed

to

ensure

propercommunication

was

occurring

between

the

DND

the

CAF

Hoffman

and

Health

Canada

so

that

Health

Canada

could

be

advised

of

the

side

effects

being

experiencedby

Dowe

and

the

Class

Members The

DND

and

or

the

CAF

providedstatements

to

the

public

includingall

Class

Members

that

willfully

concealed

the

true

facts

and

adverse

findingswith

respectto

Mefloquineand

6

U

NI

in

c i

Cl

u

CV

Lo

000380

cauvc1

11

2

Failingto

follow

the

requirementsof

the

Lariam

study

Failingto

adhere

to

international

and

Canadian

standards

nn

Int

immn

hcainne

FTERY

The

Plaintiffs

assert

that

the

forced

ingestionof

Mefloquine

without

their

consent

in

the

circumstances

pleadedabove

amounts

to

battery

CHARTER

DAMAGESci

LO

Z

6

LO in

C71 C1

11

CJ

LO U

C7I IC 1

L0

1

ICC 1

preferredtheir

own

interests

to

those

of

Dowe

and

the

class

Members

and

breached

their

fiduciaryduties

as

further

particularizedin

paragraph26

above

Dowe

and

the

Class

Members

state

their

forced

ingestionof

Mefloquinewithout

their

consent

in

the

circumstances

pleadedabove

amounts

to

battery

4cf

000381

1

CD

Z71

N

71

Members Failure

to

provide

adequate

psychiatric

and

psychologicalmedical

care

for

Dowe

and

the

Class

Failure

to

respond

adequatelyor

at

all

to

complaintsor

recommendations

that

were

made

by

Dowe

and

the

Class

Members

with

respectto

both

their

condition

and

their

treatmentFailure

to

safeguardthe

physicaland

emotional

needs

of

Dowe

and

the

Class

Members

CoercingDowe

and

the

Class

Members

into

taking

Mefloquine

throughthreat

of

imprisonmentand

non

complianceof

orders

Failingto

use

reasonable

are

in

ensuringthe

safety

well

being

and

protectionof

Dowe

and

the

Class

members

b

insulatin

them

from

ractices

that

would

c6

N

01

ti

rf

c3

N

CO

c i

N

CO

cii

rCr

NCO

ci

r

VI

NCO

rCO

Ntv

r

el

N

CO

N

000382

0

endangeror

would

be

injuriousto

their

health

or

well

being Providingstatements

to

the

public

includingall

class

members

that

willfullyconcealed

the

true

facts

and

adverse

findingswith

respectto

Meflo

uine

Providingthese

statements

with

respectto

Mefloquine

to

the

public

includingall

Class

Members

in

a

manner

that

willfullyconcealed

from

the

Class

the

fact

that

the

injuriesloss

and

damagesthat

occurred

were

caused

by

or

contributed

to

I

C

N

000383

ANNEX III

DRAFT THIRD PARTY CLAIM

1 The defendant Her Majesty the Queen in Right of Canada Canada

claims against Hoffmann La Roche Limited Roche for

a Contribution and indemnity for any amounts which Canada may be

found liable to pay to the plaintiffs in any of the six 6 following

actions T 724 19 1 725 19 1 726 19 1 1319 19 T 1320 19 and

T 1321 19 including any amounts allowed for interest and costs

b Canadas costs of defending the main actions and

c Canadas costs of this third party claim

2 Roche is a corporation incorporated pursuant to the laws of Canada

Roche conducts business in Mississauga Ontario as a manufacturer

and distributor of pharmaceutical drugs including the anti malarial drug

mefloquine At all material times Roche manufactured and distributed

mefloquine sold under the trade name Lariam

3 Mefloquine was approved in January 1993 by Health Canada for the

prevention and treatment of malaria and was introduced to the Canadian

market in December 1993

4 As of August 1990 mefloquine was available to all Canadians through

a clinical trial referred to as a Safety Monitoring Study or SMS

sponsored by Roche and approved by Health Canada At the

000384

2

mefloquine was already on the market in the United Kingdom the United

Sates and many other countries in the world

5 The SMS was intended to ensure that the Canadian public travelling to

various areas with chloroquine resistant malaria had access to

mefloquine under controlled conditions Under the SMS safety data was

to be collected on all travelers who received mefloquine under the

provisions of the study and that information was to be provided to Roche

by the study investigators Roche was required to report to Health

Canada on a regular basis the status of the trial and all adverse drug

reactions

6 The Department of National Defence DND participated in the SMS

from March 1991 to February 1992 During this time ninety six 96 CAF

members received mefloquine through the study

7 One hundred and ninety five 195 plaintiffs allege that between 1992 to

2017 while they members of the Canadian Armed Forces CAF the

CAF and DND ordered them to take mefloquine before being deployed

to the malaria endemic regions e g Somalia and Afghanistan

8 All plaintiffs allege that they were ordered to take mefloquine when CAF

and DND knew or ought to have known that mefloquine causes serious

neurological and psychiatric side effects The plaintiffs allege that the

CAF and DND were aware of the risks of taking mefloquine and willfully

concealed them or failed to warn of the risks and failed to properly

000385

3

screen individuals before ordering them to take the drug The claims

seek a series of declarations against Canada along with hundreds of

millions of dollars in damages for not only negligence but also negligent

misrepresentation breach of fiduciary duty battery and breach of

section 7 of the Canadian Charter of Rights and Freedoms

9 If these Federal Court actions proceed and Canada has to defend it will

deny any and all liability Canada will also deny that the plaintiffs have

suffered the alleged injuries as a result of taking mefloquine Canada

will put the plaintiffs to the strict proof thereof

10 The potential liability of Roche has been raised in essentially the same

claim which was commenced as a proposed class action in the Ontario

Superior Court of Justice OSCJ in January 2019 The representative

plaintiff in that case who is represented by the same counsel who

represents the plaintiffs in these Federal Court actions has made a

series of allegations of breaches of duty of care on the part of Roche

related to its role in the SMS in the early 1990s and its distribution of

mefloquine

11 A chart attached to Canadas written representationsas Annex I shows

the similarities between the allegationsof breaches of duty of care made

against Roche in the OSCJ and those made against Canada in these

Federal Court

000386

4

12 Should the allegations made against Roche in the OSCJ be proven to

be true and assuming causation is established Roche would be

partially or entirely responsible for the injuries the plaintiffs allege they

have suffered in these Federal Court actions

13 Accordingly Canada brings this third party claim against Roche for

contribution and indemnity under the Negligence Act of Ontario R S O

1990 c N 1 as amended

14 Canada proposes that the third party claim be tried concurrently with or

immediately following the trial of the main actions in the City of Toronto

November 5 2019




120 Adelaide Street West

Suite 400

Toronto Ontario

M5H 1T1

Fax 416 973 5004

Per Joel Robichaud

Tel 647 256 0546



Tel 647 256 0574


Per Wendy Wright

Tel 647 256 0577


Solicitor for the

Documents

File No T 724 19 FEDERAL COURT BETWEEN Plaintiffs HER ......Nov 07, 2019 · simmons thomas kearney michael hackett wayne frank alain ... shaun william arntsen michael grant rude