Anthony Tibbs

The appellants appealed the dismissal of their motion to certify a class action against the manufacturers of the prescription drug Celexa.

The proposed class action alleged a failure to warn that the drug is or may be a teratogen causing congenital malformations.

The Divisional Court dismissed the appeal, upholding the Class Proceedings Judge's findings that the proposed common issues lacked sufficient commonality due to the hundreds of potential congenital malformations with unique etiologies, and that a class proceeding was not the preferable procedure because individual issues would overwhelm any common issues.

The appellants appealed a certification order for a class action arising from an infection control lapse at an endoscopy clinic.

The plaintiff sought compensation for the enhanced risk of infection and the psychological trauma of receiving a public health notification, despite testing negative for any blood-borne diseases.

The Divisional Court allowed the appeal and set aside the certification order, finding that a claim for damages based solely on an increased risk of harm, without actual injury, is not a legally viable cause of action.

The plaintiffs brought a motion to certify a class action against the manufacturers of the antidepressant Celexa, alleging it is a teratogen that causes congenital malformations.

The plaintiffs proposed common issues regarding general causation (whether Celexa is or may be teratogenic) and duty to warn.

The court dismissed the certification motion, finding that the proposed common issues failed to satisfy the commonality requirement under s. 5(1)(c) of the Class Proceedings Act, as they would not advance the litigation without individual trials for each specific congenital malformation.

The court also found that a class proceeding was not the preferable procedure due to the overwhelming number of complex individual issues.

The plaintiff sought to certify a class action against an endoscopy clinic and its operator following a public health notice regarding infection control lapses.

The notice advised former patients to be tested for blood-borne diseases.

The plaintiff, who tested negative, sought compensation for exposure to enhanced risk of infection, shock, trauma, and inconvenience.

The court found that the claims raised genuine common issues, including duty of care, standard of care, and foreseeability of harm.

The court also determined that a class proceeding was the preferable procedure for resolving the claims of the 6,800 affected individuals.

The certification motion was granted.

The plaintiff in a certified class action moved to amend the class definition to include participants in a Sea Cadets program, arguing that new evidence showed they were integrated with the DASH program and thus similarly exposed to the alleged abuser.

The Federal Court dismissed the motion, finding that the new evidence did not provide some basis in fact to conclude that the sea cadets were abused or otherwise support the proposed expansion, as it merely showed administrative integration without expanding the evidentiary basis for the abuse claims.

The plaintiff appealed the dismissal of a motion to certify a class proceeding arising from a city bus crash.

The Certification Judge had denied certification on the basis that a class proceeding was not the preferable procedure, noting the plaintiff's strategic choice to pursue complex systemic negligence claims while ignoring direct claims against the bus driver and the city as owner.

The Divisional Court dismissed the appeal, finding no palpable and overriding error or error of law in the Certification Judge's discretionary preferability analysis.

Leave to appeal the costs order of the certification motion was also denied.

A motion for certification of a class action on behalf of families of missing and murdered Indigenous women alleging systemic negligence by the RCMP.

The Federal Court dismissed the motion, finding it plain and obvious that the pleadings disclosed no reasonable cause of action for systemic negligence, breach of fiduciary duty, negligent police investigation, misfeasance in public office, or Charter breaches, as the RCMP owes no private law duty of care to the proposed class.

The plaintiff sought to certify a class proceeding against the City of Ottawa arising from a deadly bus accident at Westboro Station.

The proposed action was structured to plead systemic negligence in transit design and operation while avoiding claims against the city as the owner of the vehicle and employer of the driver.

The court dismissed the certification motion, finding that the proposed class proceeding was not the preferable procedure, as it ignored readily available compensation under the motor vehicle insurance regime and numerous individual actions had already been commenced.

The appellant appealed a motion judge's decision refusing to certify a proposed class action against a medical clinic for infection control lapses during endoscopies.

The motion judge had denied certification on the basis that the appellant failed to establish an identifiable class of two or more people who suffered harm.

The Divisional Court allowed the appeal, finding the motion judge erred in law by requiring evidence of actual harm to multiple people at the certification stage, rather than just an objective basis to identify class members.

The matter was remitted to the motion judge to determine the remaining certification criteria.

The appellants appealed the dismissal of their motion to certify a class action against the manufacturer of the drug Celexa, alleging a failure to warn that the drug is a teratogen.

The Divisional Court found that the motion judge made palpable and overriding errors by concluding the appellants had abandoned general causation as a common issue and by analyzing the duty to warn in isolation from general causation.

The appeal was allowed, the decision set aside, and the certification motion was remitted to be heard afresh by another judge.

The plaintiffs brought a motion to certify a class action against the manufacturers of the antidepressant Celexa (citalopram), alleging the drug caused congenital malformations when ingested by pregnant women and that the defendants failed to warn of this risk.

The court found that while the pleadings disclosed a cause of action and there was an identifiable class, the proposed common issue regarding the duty to warn lacked commonality because the risk of birth defects varied widely and individual causation issues would dominate.

The court concluded a class proceeding was not the preferable procedure due to the inevitability of complex individual trials, and dismissed the certification motion.

The moving parties, plaintiffs in a parallel proposed class action in Saskatchewan, sought leave to intervene in the certification motion of an Ontario class action concerning the same subject matter.

The Ontario plaintiffs opposed the intervention.

The court held that while it had inherent jurisdiction to grant standing to intervene, the moving parties failed to show they would make a useful contribution to the certification motion.

The court found the intervention would likely delay proceedings and potentially prejudice a portion of the class.

The motion for leave to intervene was dismissed.

The moving parties brought a motion to quash an appeal.

The responding party argued the appeal should proceed, asserting the order below was not made on consent and the court lacked jurisdiction, while also appealing the costs component.

The Court of Appeal granted the motion and quashed the appeal, finding that the communication contemplated by the order below had already been sent, rendering the order spent and the appeal moot.

The court also noted that no leave to appeal costs had been sought.

The plaintiffs, who had opted out of a rival Alberta class action to pursue an Ontario action, brought a motion to restrain the Merchant Law Group from contacting them.

A junior associate at the Merchant Law Group had sent a letter to one of the plaintiffs, who was already represented by Kim Orr Barristers.

The court found the communication inappropriate and a breach of duties owed to the court.

Although the court declined to issue a formal injunction because no actual harm occurred, it issued a declaration and awarded $15,000 in costs against the Merchant Law Group.

The moving parties, who were granted carriage of the Ontario Volkswagen class action, brought a motion alleging that the responding law firm breached the carriage order by sending a misleading email soliciting putative Ontario class members.

The responding firm agreed to send a court-approved clarifying email and not to execute any retainer agreements received from Ontario residents.

The court awarded the moving parties $40,000 in costs on a substantial indemnity basis due to the responding firm's reprehensible conduct in breaching the court order.

The applicant requested that the adjudicator recuse herself from hearing his human rights application against Wilfrid Laurier University.

The applicant argued that a reasonable apprehension of bias existed because the adjudicator was also hearing a separate application he filed against the University of Waterloo, which could lead her to subconsciously conflate the evidence.

The adjudicator dismissed the request, finding that a reasonable and informed person would not conclude that assigning the same adjudicator to two cases involving the same applicant gives rise to a reasonable apprehension of bias.

In a human rights application against a university, the parties filed several Requests for Orders During Proceedings.

The Tribunal ordered the applicant to produce documents relating to his other post-secondary education pursuits, finding them arguably relevant to the university's defence regarding his ability to achieve academic success.

The Tribunal deferred the university's request to dismiss allegations regarding application fees and the applicant's request to compel all admissions committee members to testify until after the applicant's evidence is heard.

The applicant filed a Request for Order During Proceedings seeking to compel the respondent university to produce all members of its Admissions Committee as witnesses, to produce all related documents, and to exclude these witnesses from the hearing and prohibit them from discussing their testimony.

The respondent asserted privilege over the communications.

The Tribunal ordered that witnesses will be excluded from the hearing room when the hearing resumes, but declined to prohibit them from speaking prior to the hearing.

The Tribunal directed the respondent to file submissions supporting its claim of privilege before deciding on the production of documents and compellability of witnesses.