Angus Thomson McKinnon

In a proposed class action concerning a failed condominium development, the plaintiff alleged professional negligence against Blaney McMurtry LLP, a law firm that prepared investment instruments.

Blaney McMurtry LLP brought a motion for a declaration that solicitor-client privilege with its co-defendants had been waived.

The court found that several co-defendants, including those who had settled with the plaintiff and provided an affidavit criticizing the law firm's work, had impliedly waived privilege.

This waiver occurred because they made the quality of legal advice a material issue in the litigation, thereby making it unfair and inconsistent to maintain privilege.

The motion for a declaration of waiver was granted.

This proposed class action concerned a design defect in Kaba Simplex mechanical pushbutton locks manufactured before January 1, 2011, which could be opened using rare earth magnets.

The representative plaintiffs moved for certification of the action for settlement purposes, approval of the settlement, and approval of Class Counsel's fees.

The court granted the motion, finding that the settlement was fair, reasonable, and in the best interests of the class, providing full recovery by rectifying the defect.

The court also approved Class Counsel's fees and honorariums for the representative plaintiffs.

Following an earlier decision staying the plaintiff’s Ontario action on the basis that Quebec was the forum with the clearest connection to the dispute, the court determined costs of the successful defendants’ motion.

The defendants sought partial indemnity costs of $35,536.54, citing the complexity of the motion, extensive affidavit evidence, cross-examinations requiring interpretation, and the seriousness of allegations made in a $5 million claim.

The plaintiff argued the matter was straightforward and that the requested rates exceeded reasonable expectations.

Applying the principles governing costs under s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court fixed costs at a fair and reasonable amount rather than the defendants’ full claimed amount.

Partial indemnity costs of $24,000 all-inclusive were awarded to the defendants.

The defendants brought a motion to dismiss or stay an Ontario action alleging negligent legal advice and breach of contract arising from legal services provided in connection with Quebec litigation.

The plaintiff argued Ontario had jurisdiction because the defendant law firm carried on business in Ontario and an Ontario lawyer participated in providing the impugned tax advice.

The court held that presumptive connecting factors established jurisdiction simpliciter under the framework from Club Resorts Ltd. v. Van Breda.

However, applying the doctrine of forum non conveniens, the court concluded Quebec was clearly the more appropriate forum given the Quebec retainer agreement, Quebec governing law, the location of most witnesses and events, and parallel proceedings in Quebec.

The Ontario action was therefore stayed.

The defendants sought costs relating to four motions in a proposed class action that were ultimately never argued, including motions to strike portions of the statement of claim, for a pre-certification notice, for a sealing order, and for inspection of documents referred to in the pleadings.

The plaintiffs amended their pleadings multiple times and eventually produced certain documents, resulting in the withdrawal or abandonment of the motions.

The court held that the defendants had been put to unnecessary expense due to the manner in which the plaintiffs prosecuted the action.

Exercising its discretion under Rule 57.01(1) of the Rules of Civil Procedure, the court concluded that the defendants were practically the successful party in respect of the abandoned or unargued motions.

Costs of $14,000 all-inclusive were awarded to the defendants, payable in any event of the certification motion.

Costs decision arising from a Rule 21 motion in a proposed class proceeding.

The plaintiffs sought partial indemnity costs after largely resisting the defendants’ motion to strike, while the defendants sought costs because the plaintiffs abandoned several claims during the motion, including conspiracy and negligence claims involving the Attorney General of Canada.

The court found that the plaintiffs substantially succeeded on remaining claims but materially altered their pleadings and abandoned significant allegations during the hearing.

Given the divided success and the altered nature of the action, the court concluded that neither side should receive costs.

A certified class proceeding alleged that a manufacturer negligently designed, tested, marketed, and monitored mechanical heart valves coated with a silver-based antimicrobial surface.

The plaintiffs argued that the coating impaired tissue healing and increased the risk of complications including paravalvular leak, thromboembolism, and death.

After an extensive common‑issues trial involving scientific, epidemiological, and regulatory evidence, the court found the manufacturer exercised reasonable care in product design, testing, and post‑market surveillance.

The court concluded that the coating did not adversely affect tissue healing and did not materially increase the risk of most alleged complications, except for a temporary increase in paravalvular leak risk in the early post‑implant period.

Because negligence and causation were not established, the class action was dismissed.