Williams v. Apotex Inc., 2014 ONSC 894

By E.M. Morgan, J.
Ontario Superior Court
Feb 07, 2014

Eyvone Williams, Plaintiff

– AND –

Dr. Ravi Kakar and Apotex Inc., Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Eyvone Williams, in person

Vanessa Voakes, for the Defendant, Apotex Inc.

S. Rogers, for the Defendant, Dr. Ravi Kakar

HEARD: February 6, 2014


[1] This is a motion under Rule 21 brought by the Defendant, Apotex Inc. (“Apotex”), to strike out the claim against it.

[2] The Plaintiff alleges that she was injured when she suffered a serious allergic reaction to a medication, allopurinol, manufactured by Apotex and prescribed by the Defendant, Dr. Ravi Kakar (“Dr. Kakar”). At the hearing of this motion she made it clear that she continues to suffer painful dermatological and other symptoms until now.

[3] Dr. Kakar has crossclaimed against Apotex for contribution and indemnity, but takes no position on this motion. Apotex has not sought any relief against Dr. Kakar, but counsel advises that Dr. Kakar will be discontinuing its crossclaim in the event that Apotex is successful in this motion.

[4] The Plaintiff issued the Statement of Claim on October 19, 2012. That pleading describes a telephone conversation with Apotex’s office and a number of aborted phone calls to Apotex, as well as a visit by the Plaintiff to Apotex’ office on April 27, 2011. It contained no cause of action against Apotex and virtually no allegations whatsoever that Apotex had caused her any harm.

[5] Before Apotex brought the present motion, the Plaintiff revised her pleading and issued an Amended Statement of Claim on June 6, 2013. This amended pleading was equally devoid of a cause of action against Apotex, although it did add certain facts which amount to allegations that Apotex has caused the Plaintiff harm. Specifically, the Amended Statement of Claim alleges that Apotex failed to test the medication consumed by the Plaintiff to see what caused Plaintiff’s allergic reaction.

[6] Finally, one week before this motion, on January 30, 2014, the Plaintiff issued a Fresh As Amended Statement of Claim. This pleading was delivered to counsel for Apotex within the past week. While it does not allege negligent manufacture of the medication, it does plead against Apotex in negligent misrepresentation and failure to warn.

[7] The first thing to note about the Fresh As Amended Statement of Claim is that in para 5 it states that the Plaintiff took allopurinol as a result of Dr. Kakar’s directions. This is also reflected in Dr. Kakar’s Statement of Defense, which states that he prescribed the medication for the Plaintiff and that he informed her about the medication and obtained her informed consent.

[8] The Plaintiff’s allegation of negligent misrepresentation is unparticularized and difficult to understand. There is no actual representation that is mentioned as being misleading. Rule 25.06(8) of the Rules of Civil Procedure provides that misrepresentation must be pleaded with full particulars. Where, as here, there is no indication as to what the misrepresentation is, the cause of action will fail.

[9] The duty to warn is a bit more detailed in the Fresh As Amended Statement of Claim, but it is also destined to fail. The essence of this claim is contained in paragraph 11 of the most recent pleading, which asserts that the Plaintiff suffered a variety of health problems “[a]ll because of Apotex’s negligence to warn consumers of the danger of allopurinol.” This allegation is repeated in para 13 and culminates in paras 15 and 19 with the allegation that the failure to warn also consisted of a failure to advise Health Canada of the problems with the medication.

[10] Counsel for Apotex points out that this court held in Martin v Astrazeneca Pharmaceuticals, 2012 ONSC 2044 (CanLII), 2012 ONSC 2044, that an allegation of failure to warn must be made with specificity and must contain material facts in relation to the warnings. As the court put it at para 159, a “bare pleading” can give rise to no tenable cause of action for duty to warn.

[11] Moreover, the allegation of failure to warn presumes that Apotex was under a duty to warn. In the circumstances, however, there was no such duty. Dr. Kakar, as the prescribing physician, was in the position of a “learned intermediary” who effectively deflected any potential liability away from Apotex as manufacturer. See Dow Corning Corp. v Hollis, [1995] 4 SCR 636.

[12] The Court of Appeal found in Buchan v Ortho Pharmaceutical (Canada) Ltd., [1986] OJ No 1331, at para 23, that “the duty of manufacturers to warn consumers is discharged if the manufacturer provides prescribing physicians, rather than consumers, with adequate warning of the potential danger.” The rational for the learned intermediary principle, as the Court pointed out at para 24 of Buchan, is that the prescribing physician is in the best position to warn based on his knowledge of the patient and the product. The patient places primary reliance on the physician, making that physician the intermediary that has the duty to advise and warn the consumer.

[13] Accordingly, the Plaintiff’s case, as pleaded in the Fresh As Amended Statement of Claim, cannot succeed against Apotex. It simply does not raise a cause of action that is possible in law. Furthermore, it is the Plaintiff’s third pleading in a row that suffers from this problem. As the court noted in Abernaethy v Canada, 2013 ONSC 7065 (CanLII), 2013 ONSC 7065, at para 27, pleadings are not meant to be a moving target. The Plaintiff has filled in the pleadings with more facts each successive time, but none of those facts amount to a cause of action that can be sustained.

[14] The Plaintiff has indicated that she had retained what she thought was a law firm to represent her in this matter, but she states that she was misled by a firm holding themselves out as a firm of “lawyers and paralegals” who charged her a significant amount of money. Apparently it was that firm that drafted the Amended Statement of Claim. These are disturbing allegations. I note that Stinson J. endorsed the record at the first appearance in this motion on October 7, 2013 asking counsel for Apotex to assist the Plaintiff by reporting to the Law Society the Plaintiff’s troubles with the firm that misled her. Counsel has advised me today that a report has indeed been submitted to the Law Society.

[15] The Plaintiff has advised me, however, that she drafted the Fresh As Amended Statement of Claim herself and that she stands by that pleading. She defended her latest pleading at the hearing before me and argued in support of it in response to the Apotex motion.

[16] It is plain and obvious that the action cannot succeed and that the Plaintiff’s claim, in any of its incarnations, must be struck. It is equally plain that any further amendment will inevitably result in a further successful motion to strike. Jack v Canada (Attorney General), [2004] OJ No 3294 (SCJ). I do not doubt that the Plaintiff has suffered a medical trauma of some kind – her sincerity came through very clearly at the hearing of the motion where she represented herself quite passionately. However, the legal impediments are such that her claim must be struck at this time.

[17] The Plaintiff’s claim, as currently embodied in the Fresh As Amended Statement of Claim, as well as in any and all previous versions, is struck without leave to amend.

[18] In my view, the Plaintiff has suffered a great deal and has been put to financial hardship by a law firm – or, perhaps, by someone masquerading as a law firm – that was supposed to represent her but that has greatly let her down. I will exercise my discretion not to award any costs of this motion.

Morgan J.

Date: February 7, 2014