Before: The Honourable Madam Justice D. Smith
Reasons for Judgment
|
Counsel for the Plaintiffs: |
C. Rhone D. Montrichard
|
|
Counsel for the Defendants: |
H. Poulus, Q.C. |
|
Date and Place of Trial: |
March 4, 2004 |
|
|
Kamloops, B.C. March 15 & 16, 2004 |
|
|
New Westminster, B.C. |
I. OVERVIEW
[1] The defendants seek further and better particulars pursuant to Rule 19(16) of the Rules of Court following certification of this action as a class proceeding. Their demand relates to 21 particulars provided by the plaintiffs in response to the defendants’ fourth demand for further and better particulars. Attached to these reasons is a copy of the defendants’ demand.
[2] The defendants also seek an order pursuant to Rule 19(24) of the Rules of Court striking Particular #32 provided by the plaintiffs, as not being material to any of the common issues to be tried.
[3] For the reasons set out below, I have concluded that both applications must be dismissed, with two minor exceptions in regard to the application for further and better particulars.
II. THE APPLICATIONS
[4] This is a complex products liability action that was commenced on January 6, 2000. It involves claims for general and punitive damages based in negligence and a failure to warn. The action is brought on behalf of individuals implanted with bipolar leads, which are a component of an artificial cardiac pacing system.
[5] The representative plaintiffs allege the defendant Medtronic, Inc., a designer and manufacturer of leads, and the defendant Medtronic of Canada Ltd., a Canadian marketer of the leads in question, negligently designed, manufactured, marketed and distributed the leads and/or negligently failed to warn of a risk associated with the use of the leads that was known or ought to have been known to the defendants.
[6] The defendants admit they owed a duty of care to the plaintiffs. They deny they breached the standard of care at the material time or that any act or omission that might be attributed to them caused the plaintiffs any harm.
[7] The issues raised in the defendants’ application for further and better particulars may be summarized as follows:
(a) Are the plaintiffs required to provide particulars of the standard of care they allege the defendants should have followed before marketing the lead implants?
(b) Are the defendants’ demands for further and better particulars a request for evidence rather than material facts?
III. POSITION OF THE PARTIES
[8] The defendants seek particulars regarding the standard of care the plaintiffs allege they ought to have followed in order to disprove: (i) that the standard of care the plaintiffs claim they should have followed did not exist or was not applicable at the material time; (ii) that the defendants did not breach the standard of care the plaintiffs allege they should have followed; and, (iii) if the defendants did breach the standard of care the plaintiffs allege they should have followed the breach did not cause the harm claimed by the plaintiffs.
[9] The defendants further submit that particulars of the standard of care are material and necessary facts that must be provided in order for the defendants to know the precise nature of the case against them and to better prepare and manage the trial of the common issues.
[10] The plaintiffs reply that particulars of the standard of care they allege the defendants breached constitute opinion evidence to be provided by their expert witnesses at trial and are not material and necessary facts that should appear in the pleadings. They also submit that the particulars already provided plead the material facts from which the defendants can identify the acts or omissions the plaintiffs allege caused the harm. In short, the plaintiffs state the defendants are seeking evidence and not material facts, which does not fall within the ambit of Rule 19(16).
IV. BACKGROUND FACTS
[11] The defendants’ application for further and better particulars arises out of a fourth demand for particulars. On March 24, 2000, before certification, the defendants made their first demand for particulars. Kirkpatrick J., who was the assigned case management judge at the time, ordered some particulars and held the balance unnecessary for the purposes of the certification application (see: Hoy v. Medtronic, 2000 BCSC 1902).
[12] The action was certified on September 27, 2001 (see: Hoy v. Medtronic (2001), 94 B.C.L.R. (3d) 169, 2001 BCSC 1343). On May 29, 2003, the certification order was upheld on appeal (see: Hoy v. Medtronic (2003), 14 B.C.L.R. (4th) 32, 2003 BCCA 316.
[13] On February 26, 2002, the defendants made a second demand for particulars. The plaintiffs refused that request claiming the demand was premature, as neither discoveries nor document production had been completed. They also questioned the jurisdiction of the court to order particulars of the common issues defined by the certification order on the grounds that the Rules of Court only contemplated an order for further and better particulars of a matter stated in the pleadings.
[14] Despite the plaintiffs’ objections, the defendants brought their second application for further and better particulars. On December 2, 2002, Kirkpatrick J. held that the Class Proceedings Act, R.S.B.C. 1996, c. 50, allowed for the making of any order appropriate to ensure the fair and expeditious determination of a class proceeding, including the making of an order for further and better particulars in respect to the common issues (see: Hoy v. Medtronic, 2002 BCSC 1648). She concluded that an order for particulars of the common issues made pursuant to the Class Proceedings Act did not conflict with the Rules of Court. She held the application was not premature as discovery was not a substitute for particulars and the plaintiffs were in a position to give particulars.
[15] Kirkpatrick J. did not rule on the defendants’ specific demand for particulars. However, as a result of her ruling the plaintiffs agreed to provide responses to all of the particulars demanded by the defendants. In that regard, the parties entered into a consent order on January 13, 2003. On January 15, 2003, the plaintiffs delivered 45 pages containing 297 particulars.
[16] The defendants remained dissatisfied with the particulars provided and made a third demand for further and better particulars. The plaintiffs acknowledged the particulars they had provided were overly broad and agreed to narrow them.
[17] On April 29, 2003, Kirkpatrick J. further directed the plaintiffs to select only those common issues they intended to pursue at trial and to provide particulars with respect to those issues (see: Hoy v. Medtronic, 2003 BCSC 666). On May 14, 2003, the plaintiffs delivered “Limited Particulars in Support of Stage 1 Issues”, together with a letter proposing that the common issues listed in the certification order be bifurcated. The proposed bifurcation of the common issues was opposed by the defendants.
[18] The particulars provided for the “Limited Stage 1 Issues” were still unsatisfactory to the defendants. In response, the defendants applied to de-certify the action as being unmanageable. On May 22, 2003, Kirkpatrick J. directed the plaintiffs to remove all overlap, duplication, and repetition in the particulars they had provided. By June 16, 2003, the 297 particulars had been condensed to 152 particulars that related to the proposed Stage 1 trial of the common issues.
[19] The defendants continued to challenge the adequacy of the particulars and on January 13, 2004, the plaintiffs delivered another set of particulars.
[20] The plaintiffs did not pursue an application for a bifurcated trial and eventually abandoned that proposal. The defendants also did not pursue their application to have the action de-certified. Instead, the parties discussed reducing the number of common issues to be tried and on February 9, 2004, a Consent Order in that regard was entered as follows:
5. The common issues are, and shall be confined to, the following issues and sub-issues:
(a) Did the defendants breach the standard of care in failing to:
(i) Perform sufficient pre-market tests on the leads;
(ii) Design and manufacture leads that were adequate to protect against failure and degeneration during ordinary use by employing P80A as insulation;
(iii) Recall the leads when they knew or ought to have known of the risk of injury prior to implantation of leads into class members;
(iv) Provide adequate warnings as to any risks of the leads to physicians, surgeons and all other intermediaries, as well as class members, of any potential risks or hazards associated with the use of the leads?
(b) If the defendants breached the standard of care owed to the plaintiffs, are the plaintiffs entitled to an award of punitive damages having regard to the nature of the established breaches?
[21] The defendants were still not satisfied with the particulars provided by the plaintiffs. On February 12, 2004, they renewed their demand for further and better particulars.
[22] In an attempt to stave off another motion on this issue, the plaintiffs provided further particulars on February 24, 2004. The parties were still unable to agree on the adequacy of those particulars and this application was filed.
V. DISCUSSION
(a) The demand for further and better particulars
(i) General principles
[23] The Rules of Court create a standard for pleadings that includes particulars. Rule 19(1) provides:
A pleading shall be as brief as the nature of the case will permit and must contain a statement in summary form of the material facts on which the party relies, but not the evidence by which the facts are to be proved.
[24] Particulars of a pleading may be ordered pursuant to Rule 19(16). In Kimpton v. Canada (Attorney General), (2002), 97 B.C.L.R. (3d) 119, 2002 BCSC 67, Macaulay J. confirmed, at ¶18, that particulars in a class action should only be ordered on traditional grounds.
[25] An order for particulars is a discretionary matter that is generally exercised only when necessary in order to enable a defendant to plead and to define issues: see Big Bay Timber Ltd. v. Arkinstall Logging Co. Ltd. (1978), 88 D.L.R. (3d) 494 at 496 (B.C.C.A.). “Necessary” has not been interpreted to mean “helpful” or “of assistance”: see Alford v. Canada, [1999] B.C.J. No. 1937 at ¶14 (S.C.).
[26] The purpose of particulars was outlined in Canulex Ltd. v. Perry, [1982] B.C.J. No. 369 (C.A.) where, at ¶15, Lambert J.A. listed six points for the court to consider in exercising its discretion to order particulars:
1. to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;
2. to prevent the other side from being taken by surprise at the trial;
3. to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;
4. to limit the generality of the pleadings;
5. to limit and decide the issues to be tried, and as to which discovery is required, and
6. to tie the hands of the party so that he cannot without leave go into any matters not included.
[27] In G.W.L. Properties Ltd. v. W.R.Grace, etc. (1993), 79 B.C.L.R. (2d) 126 at ¶17 (S.C.), Lowry J. (now J.A.) further noted that discovery is not a substitute for particulars; nor is the fact that particulars are known (or even best known) by the demanding party an excuse not to provide particulars (also see: Proconic Electronics Limited v. Wong (1985), 67 B.C.L.R. 237 (S.C.); and, McFarlane v. Thornberg, [1997] B.C.J. No. 1849 at ¶39 (S.C.)(Master)). Rather, particulars serve to define the issues upon which examinations for discovery are based: Anglo-Canadian Timber Products Ltd. v. British Columbia Electric Company Ltd. (1960), 31 W.W.R. 604 (B.C.C.A.); G.W.L., supra, at 129; Tse-Ching v. Wesbild Holdings Ltd. (1994), 98 B.C.L.R. (2d) 92 at 100 (S.C.); and, Alford, supra at ¶18.
[28] Detailed particulars have been ordered in complex cases, including products liability cases such as G.W.L., supra, and Cominco Ltd. v. Westinghouse Can. Ltd. (1978), 6 B.C.L.R. 25 (S.C.).
[29] The issue in this case is whether the detailed particulars already pleaded permit the defendants to understand the nature of the case they must meet, to avoid being taken by surprise, and to prepare for Examinations for Discovery.
(ii) Standard of care
[30] In order for the plaintiffs to establish a claim in negligence they must prove an act or omission by the defendants that amounted to a breach of a duty of care owed to the plaintiffs; that the breach fell below the requisite standard of care; and, that but for the breach the foreseeable harm would not have ensued. In order to establish their claim for failure to warn, the plaintiffs must prove the leads were dangerous, that the defendants knew they were dangerous, and that they failed to warn of the attendant dangers.
[31] The defendants have demanded particulars of the standard of care in relation to both claims.
[32] A determination of the standard of care in any given case is a question of mixed fact and law to be determined by the trier of fact. This determination is fluid, not rigid. It is based on whether the evidence adduced at trial demonstrates the defendants’ acts or omissions fell below a standard that was acceptable to the community or was unreasonable in all of the circumstances at the material time.
[33] The meaning of “standard of care” was discussed by several members of the court in Galaske v. O’Donnell, [1994] 1 S.C.R. 670. Cory J., for the majority, stated at ¶40:
The definition of the standard of care is a mixed question of law and fact. It will usually be for the trial judge to determine, in light of the circumstances of the case, what would constitute reasonable conduct on the part of the legendary reasonable man placed in the same circumstances.
In concurring reasons, La Forest J. stated at ¶2:
… The standard of care owed by the respondent is what kind of action was reasonable under all the circumstances, an issue that is for the trial judge to determine.
And in additional concurring reasons, McLachlin J. (now C.J.C.) stated at ¶66:
The standard of care is for the trial judge to determine on the evidence. It may vary from case to case. It follows that it would be wrong to state as a categorical proposition that a driver’s failure to require a child to wear a seatbelt must always violate the standard required by the community, with the result that such a driver would always be negligent.
[34] The notion of a flexible standard of care was discussed by Linden in Canadian Tort Law, 7th ed. (Markham: Butterworths, 2001) at 121:
Values are involved in this determination [of whether there was a breach of the standard of care]. What must be judged is whether the conduct of this particular defendant in this singular situation was acceptable or unacceptable to the community. The responsibility rests on the instant judge or jury and authoritative guidance is virtually nonexistent. There is almost no law of negligence – there is merely an approach that each tribunal will utilize.
This has been recently recognized in McEvay v. Tory (1990), 49 B.C.L.R. (2d) 162 at 167 (C.A.) where the court refused to create a specific duty on motorists to stop or slow down when a bus stops, preferring to rely on the flexible standard of reasonableness in the circumstances. It was said “Such an inflexible standard of care would cause traffic to come to a virtual standstill every time ‘the man on the Clapham bus’ wants to get off. [Emphasis added.]
[35] This flexible approach to determining the standard of care was applied in the products liability case of Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, where La Forest J., for the court, stated at ¶26:
… it is reasonable and just to require manufacturers, under the law of tort, to make clear, complete and current informational disclosure to consumers concerning the risks inherent in the ordinary use of their products.
[36] The concept of the legal standard of care is to be differentiated from custom or standard protocol, industry standard, industry standard protocol, and standards for the ways in which certain tests are conducted. Evidence of a custom may assist a court in determining whether the legal standard of care was breached but it is not determinative of the issue. As noted by Linden at 183-4:
It is now clear that custom is not conclusive of reasonable care. Thus Mr. Justice Matas has recently reiterated that evidence of compliance with custom ‘is not conclusive’ in a situation where an explosion took place in a school during a chemistry experiment, which was being done in the same way as other schools did it. [citing James v. River East School Division No. 9 (1976), 64 D.L.R. (3d) 338 at 350 (Man. C.A.)]
[37] Evidence of custom or practice was discussed by Hutcheon J.A. in Gaines v. Patio Pools (1984), 51 B.C.L.R. 121 (C.A.). At ¶16, he stated that “…[e]vidence of common practice in a trade is relevant to the issue of standard of care but such evidence is not conclusive.” Similarly, in Waldick v. Malcom, [1991] 2 S.C.R. 456, Iacobucci J. for the court stated at ¶35 that “a custom would [not] necessarily be decisive against a determination of negligence.”
[38] In summary, the above authorities require the plaintiffs to particularize the acts or omissions they attribute to the defendants which they allege fell below what was acceptable to the community or reasonable in all of the circumstances. However, while evidence of custom or practice at the material time may be relevant to the legal standard of care to be determined by the court, such evidence is not conclusive. Indeed, in Hollis, supra, the court concluded the defendants had breached the legal standard of care without any reference to custom or standard practice. The court simply applied the evidence adduced at trial to the standard of care which the court defined.
[39] In this case, almost all of the demands for further and better particulars relate to requests involving the standard of care issue. I have concluded that while the plaintiffs must particularize the defendants’ acts or omissions which they allege breached the standard of care, they are not required to particularize the standard of care they will be alleging the defendants ought to have followed. In that regard, they will likely rely on evidence from experts that such acts or omissions fell below what was acceptable to the community at the time. They might also tender opinion evidence of the custom or practice at the time in order to support their claim that the defendants breached the legal standard of care. However, such evidence would not be a material fact that must (or even should) be particularized and would not necessarily be determinative of whether the defendants breached the legal standard of care. If particulars were provided regarding the alleged standard of care, they might change the flexible approach mandated by the authorities, to a rigid and inflexible approach that could tie the hands of the trier of fact.
[40] In Chace v. Crane Canada Inc. (1996), 26 B.C.L.R. (3d) 339 (S.C.), another products liability action, Mackenzie J. (now J.A.) commented (at ¶12) that the standard of care issue regarding the alleged manufacture and sale of fractured toilet tanks would be resolved with “… extensive and controversial expert evidence.” Similarly, in this case, the standard of care issue will likely be resolved with extensive and controversial expert evidence, which remains in the domain of evidence rather than material fact; therefore, it need not be particularized.
[41] However, where particulars of a specific standard of care have been pleaded, the court may order further and better particulars of that material fact. Such was the case in Tabrizi v. Whallon Machine Inc. (1996), 29 C.C.L.T. (2d) 176 (B.C.S.C.) where particulars of the alleged standard of care and the alleged failures of the defendants to meet that standard of care were pled.
[42] In this case, the plaintiffs have voluntarily provided some particulars of the standard of care they intend to rely upon in order to establish both of their claims. In that regard, I am of the view the plaintiffs should identify the material passages in their Schedule listing the scientific literature they intend to rely on, as requested in the demand (a)(iv) to Particular 24 and (e)(iv) to Particular 36.
(iii) Evidence and material facts
[43] Rule 19(1) requires a party to plead in summary form the material facts on which the party relies but not evidence by which the facts are to be proved. Distinguishing between material facts and evidence is a line that becomes increasingly blurred as more particulars of the material facts are provided.
[44] A helpful review of the distinction between evidence and material facts was provided in Premakumaran v. Canada (2003), 28 Imm. L.R. (3d) 98, 2003 F.C.T. 635 (T.D.). At ¶7 the court stated:
[7] … Depending upon the circumstances, there is some leeway in the concept of material facts. This was pointed out by Lord Chancellor Selbourne in Millington v. Loring (1880) 6 QBD 190 at 194 where, commenting upon the equivalent of our Rule 174, requiring that a pleading contain a statement of material facts on which the party relies, he said:
If those words, “material facts,” are to be confined to matters which are material to the cause of action, that is to say, facts which must be proved in order to establish the existence of the cause of action, then no doubt the facts in this paragraph were not properly pleaded. But in my opinion those words are not so confined, and must be taken to include any facts which the party pleading is entitled to prove at the trial.
Lord Selbourne went on to elaborate on the concept that material facts included any facts which a party is entitled to prove at trial by discussing examples. However, there is no suggestion that either material facts or particulars go so far as to include evidence and that is certainly made clear in our Rule 174, which I will set out in due course.
[8] In Cercast Inc. v. Shellcast Foundries Inc., [1973] F.C. 28 (F.C.T.D.) Mr. Justice Walsh observed that particulars should stand by themselves, without reference to the evidence supporting them.
[9] A lay litigant and indeed some of us in the profession, can become uncertain about dividing particulars from evidence. Broadly speaking, particulars are to explain what one party is going to try to prove against the other: how a party intends to prove his or her case is a matter of evidence. Justice of Appeal McQuaid, writing for the court in Kay Aviation b.v. v. Rofe (2001), 202 D.L.R. (4th) 683 at 687 (P.E.I. C.A.) said ‘It is not always easy to distinguish between what constitutes “material facts”, “evidence” and “particulars” in the context of pleadings.’. He then went on to refer to what Master Sandler had to say in Copland v. Commodore Business Machines Ltd. (1985), 52 O.R. (2d) 586 (S.C.) at 588.
Material facts must be pleaded; evidence must not be pleaded. In between the concept of “material facts” and the concept of “evidence”, is the concept of “particulars”. These are additional bits of information, or data, or detail, that flesh out the “material facts,” but they are not so detailed as to amount to “evidence”.
Master Sandler then went on:
… [it was] necessary, in any specific type of action, to determine the minimum level of material fact disclosure required for any particular pleading, in order to determine if the pleading is or is not regular. This is not an easy task by any means, and much common sense must be brought to bear in this endeavour. As well, the purpose and function of pleadings in modern litigation must be kept constantly in mind. It is often difficult to differentiate between, and articulate the difference between material facts, particulars, and evidence.
[45] The important distinction to be noted from this passage is that particulars are provided to disclose what one party intends to prove against the other; how the party intends to prove his case is a matter of evidence.
[46] In my view, Master Joyce (now J.) summarized it best in Firestone v. Smith [1991] B.C.J. No. 2660, where he stated at ¶11:
In my view the concern raised by the plaintiff at this stage is that he does not know but would like to know now what precise evidence the defendant may lead in support of his allegations of fact. In my respectful opinion the plaintiff is not entitled to ascertain the evidentiary basis of the defendant’s case by way of this demand for particulars.
[47] As in Firestone, the defendants in this case seek to know the precise evidence the plaintiffs may lead in support of their allegations of material fact. In my view, what they are seeking by way of their demand for further and better particulars is the evidentiary basis of the plaintiffs’ case.
[48] The final set of particulars delivered by the plaintiffs, in my view, were sufficiently concise, specific and selective as to permit the defendants to know with some degree of precision and clarity the acts or omissions the plaintiffs allege constitute the defendants’ breach. I am satisfied they sufficiently identify the issues between the parties and in some particulars even plead the standard of care allegedly breached.
[49] Bouck J. commented in Cominco, supra, at 27:
Occasionally parties can get caught up in the fascination of the interlocutory process and lose sight of the fact that some day the matter must go to trial even though a “perfect” framework does not then exist for its presentation. Sometimes as well one side or the other is merely replying to the overzealousness of his opponent and motions or their opposition are meant to let one another know it will be a long hard fight.
[50] These comments are apposite to every hard fought action. In this case, substantial claims for general and punitive damages are being advanced against the defendants who have the responsibility to prepare a full answer and defence to the claims. However, the plaintiffs represent an aged and dying class of individuals that have been involved in interlocutory proceedings for over four years.
[51] This action is set for trial in February, 2005, for 22 weeks. Examinations for discovery have been scheduled for the end of April and the beginning of May, 2004. In my view, the discovery process must be completed in a timely manner if this action is to be ready for trial. I am satisfied the particulars provided to date meet the requirements in Canulex, supra, and that the pre-trial process should now be completed.
VI. APPLICATION TO STRIKE PARTICULAR
[52] The defendants apply to strike Particular #32 provided by the plaintiffs in the last set of particulars and listed in the attached demand for further and better particulars. That particular states:
32. Medtronic, Inc., failed to advise Medtronic of Canada Ltd. about the Information and Risks.
[53] The defendants submit this particular is unnecessary or superfluous in that if it is established that Medtronic, Inc. failed to advise the class about the information and risks associated with the lead implants, its failure to disclose to a subclass of affected individuals who dealt with Medtronic of Canada Ltd. becomes irrelevant.
[54] However, common issue 5(a)(iv) alleges Medtronic, Inc. failed to:
Provide adequate warnings as to any risks of the Leads to physicians, surgeons and all other intermediaries, as well as class members, of any potential risks or hazards associated with the use of the Leads?
[55] In my view, Medtronic of Canada Ltd., as a Canadian marketer of Medtronic, Inc.’s leads, would prima facie fall within the category of “intermediaries” of Medtronic, Inc. and as such fall within the ambit of the common issue to be tried.
VII. SUMMARY
[56] Subject to those requests specifically allowed, the defendants’ application for further and better particulars is dismissed. The application to strike Particular #32 is also dismissed.
“D.M. Smith, J.”
The Honourable Madam Justice D.M. Smith
