Anna Leslie Robinson Tombs

This decision concerns the costs arising from the dismissal of the plaintiff's motion for leave to commence a secondary market securities class action and to certify the action.

The defendants sought substantial indemnity costs, while the plaintiff argued for partial indemnity and a discount due to the alleged novel and public interest nature of the litigation.

The court awarded partial indemnity costs of $693,805.39, finding no basis for substantial indemnity as there was no reprehensible conduct or unproven fraud allegations.

The court also rejected the argument for a discount under s. 31(1) of the Class Proceedings Act, concluding that the issues were not novel or of broad public interest, particularly as they had been previously litigated.

A minor deduction was made for online research disbursements.

The plaintiff sought leave to bring a statutory secondary market misrepresentation claim under the Securities Act and to certify a class action for both statutory and common law negligent misrepresentation claims.

The claims arose from the defendant mining company's alleged failure to immediately disclose a pit wall instability and subsequent rock slide at its Chilean copper mine.

The court dismissed the motion for leave, finding no reasonable possibility of success that the events constituted a 'change' to the company's business, operations, or capital, as they were inherent mining risks managed in the ordinary course.

The court also dismissed the certification motion for the common law claim, holding that individual issues of reliance made a class proceeding unmanageable and not the preferable procedure.

The defendant brought a motion to amend its defence and counterclaim and to add a third party claim, alleging that the plaintiff's asset sale violated the Fraudulent Conveyances Act and the Assignments and Preferences Act.

The plaintiff opposed the motion, arguing that the proposed amendments and third party claim were statute-barred.

The court found that the defendant knew or ought to have known the material facts underlying the proposed claims more than two years before bringing the motion.

The court dismissed the motion, holding that the proposed claims were statute-barred and that adding them would cause non-compensable prejudice to the impecunious plaintiff.

The appellants appealed the dismissal of their motion for certification of a proposed class proceeding against the manufacturers of the anti-coagulant drug Pradaxa.

The appellants alleged the respondents breached a duty to warn that there was no antidote for the drug.

The motions judge found that the duty to warn was not a common issue, concluding there was no basis in fact that the failure to warn was a source of harm common across the class.

On appeal, the Divisional Court held that the motions judge did not err in principle or impermissibly weigh competing expert evidence, but correctly applied the 'some basis in fact' test using undisputed evidence.

The appeal was dismissed.

The plaintiffs brought a motion for certification of a class action against the manufacturers of Pradaxa, an anticoagulant drug.

The plaintiffs alleged that the defendants breached their duty to warn consumers and healthcare professionals about the lack of an antidote for the drug, which could lead to excessive bleeding.

The court dismissed the certification motion, finding that the plaintiffs failed to establish that the proposed common issues actually existed or could be answered in common across the class.

The court noted that the decision to prescribe an anticoagulant and the need for a reversal agent are highly patient-specific, and there was no basis in fact to conclude that the absence of an antidote posed a common and material risk across the class.

The plaintiff was successful on a motion for a stay of proceedings and security for costs against the defendant.

In this costs endorsement, the court fixed the plaintiff's costs of the motion at $15,500 on a partial indemnity basis.

The court considered the extensive litigation history, the defendant's unpaid costs awards, and the reasonable expectations of the parties.

The defendant was ordered to pay the costs by a specified date, failing which its forthcoming motion to set aside the trial judgment would be dismissed.

The plaintiff sought an order prohibiting the defendant, Rosen Ridge Farms Ltd., from pursuing an upcoming motion to set aside a trial judgment unless outstanding costs orders were satisfied and security for costs for the new motion was posted.

The court found that Rosen Ridge had repeatedly failed to comply with previous costs orders and that its claim of impecuniosity was not valid given its shareholder's refusal to post security.

The court ordered Rosen Ridge to pay $47,000 in outstanding costs and post $40,000 as security for costs by June 30, 2016, failing which its motion to set aside the trial judgment would be automatically dismissed.

In a proposed pharmaceutical products liability class action concerning the anticoagulant drug Pradaxa®, the defendants sought production of additional medical records of the proposed representative plaintiffs prior to the certification motion.

The plaintiffs resisted, arguing certification is a procedural step and that extensive medical disclosure was unnecessary and intrusive at the pre‑certification stage.

The court held that the scope of pre‑certification disclosure depends on the nature of the particular class action and that, in a drug‑related products liability claim alleging serious adverse effects, more detailed medical evidence was relevant to the certification criteria.

The court concluded it was apparent from the pleadings that limited records confirming ingestion of the drug were insufficient.

Production of the requested medical records was therefore ordered.

The applicant sought declaratory relief that certain software licensing agreements were not part of any contract governing its use of software used in manufacturing systems and that it owed no further licensing fees.

The dispute arose after the respondents conducted an audit and claimed additional fees based on a per‑core licensing model introduced after a software upgrade.

The court held that the application procedure under Rule 14.05(3) was inappropriate where key facts regarding delivery and acceptance of licensing terms were disputed.

Because the applicant bore the onus of proving entitlement to declaratory relief and the evidentiary record was incomplete and conflicting, the court declined to determine the contractual issues on the application record.

The application was dismissed and costs were awarded to the respondents.