Brian Moher

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

The respondent father brought a motion to stay ten prior court orders dating back to 2013, arguing the court lacked jurisdiction because he was not properly served in New York under the Hague Service Convention.

The court found that the Hague Service Convention applied, but that the respondent was properly served by FedEx as permitted by Ontario law and the Convention's postal channel provisions.

The court declined to exercise its discretion to grant a stay under section 106 of the Courts of Justice Act, finding that the respondent failed the RJR-MacDonald test and that staying the orders would cause immense prejudice to the applicant mother, who was owed over $2.5 million in support arrears.

The applicant dentist sought judicial review of a decision by the Health Professions Appeal and Review Board (HPARB), which affirmed a decision of the Inquiries, Complaints, and Reports Committee (ICRC) of the Royal College of Dental Surgeons of Ontario.

The ICRC had ordered the applicant to complete a specified continuing education or remediation program (SCERP) and receive a caution regarding unnecessary dental restorations and providing inaccurate information during the investigation.

The applicant argued the ICRC made impermissible credibility findings and that the HPARB failed to provide meaningful analysis.

The Divisional Court dismissed the application, finding that the ICRC's factual conclusions were reasonable, within its mandate, and supported by the documentary record, and that the HPARB's review was adequate and responsive.

The applicant, Carmela Maria Capone, moved to quash the appeal of the respondent, Zoran Fotak, from two interlocutory orders made in ongoing family law proceedings.

The motion judge had ordered the respondent to bring a stay motion as a condition for his jurisdictional challenge to be heard, clarifying that no decision on the merits of the jurisdictional challenge had been made.

The Court of Appeal found the orders to be interlocutory and not appealable, as they did not determine any substantive claim or defence.

Consequently, the appeal was quashed.

Following the dismissal of a class action concerning medical device implants, the Crown sought over $6.3 million in costs.

The plaintiff argued for no costs based on public interest and access to justice principles under the Class Proceedings Act, and sought costs for an unproven fraud allegation against a witness.

The court significantly reduced the Crown's costs to $385,000, noting the public interest nature of the case, the access to justice mandate, and the Crown's own contribution to the 20-year delay.

OHIP was ordered to pay 10% of the costs, with the remainder payable by the Law Foundation of Ontario.

The respondent brought a motion to set aside ten previous court orders, arguing the court lacked jurisdiction because he was not properly served under the Hague Service Convention.

The applicant brought a cross-motion seeking to refuse the respondent an audience because he remained in continuous breach of those orders.

The court held that a litigant cannot ignore court orders and still demand an audience.

The court directed that the respondent must first bring a motion to stay the impugned orders; if successful, he may proceed with his jurisdiction motion, but if unsuccessful, he will be refused an audience until he complies.

The plaintiff brought a class action against the Crown alleging negligent regulation of Vitek Proplast temporomandibular joint (TMJ) implants by Health Canada.

The plaintiff claimed that the Crown owed a private law duty of care to the class members and breached that duty by failing to properly regulate the devices, issuing Notices of Compliance negligently, and failing to adequately warn the public or recall the devices.

Following a lengthy common issues trial, the Superior Court of Justice dismissed the action.

The court applied the Anns test and concluded that the Crown did not owe a private law duty of care to the class members, as there was insufficient proximity between the regulator and the unidentifiable group of potential implant recipients.

Furthermore, the court found that even if a duty of care existed, the Crown did not breach the applicable standard of care, as its regulatory actions and responses to the evolving scientific understanding of the implants' risks were reasonable and appropriate.

Four patients who received Vitek Proplast Teflon Interpositional implants in their temporomandibular joints in the mid-1980s sued St. Joseph's General Hospital and oral surgeons for injuries caused by the defective implants.

The appellants settled with the oral surgeons and obtained Pierringer Orders.

Three actions were dismissed as statute-barred under the Public Hospitals Act's two-year limitation period.

One action (Hearsey) proceeded to trial.

The trial judge found the hospital 5% at fault, the oral surgeons 20% at fault, the manufacturer 50% at fault, and the distributor 25% at fault, limiting recovery to 5% of damages.

The appellants appealed, challenging the limitation period findings, the rejection of a duty to recall, and the apportionment to non-parties.

The hospital cross-appealed on the limitation period and costs.

The plaintiff brought a motion under Rule 60.12 to strike the defendant's Statement of Defence in a class action, alleging failure to produce documents.

Mid-motion, the plaintiff changed the requested relief to an order for specific further productions and examinations.

The Master found that the plaintiff's mid-motion change in position and late-filed materials prevented the defendant from properly responding.

The Master also concluded that granting the proposed order risked jeopardizing a fixed 17-week trial date, and a Master lacks authority under Rule 37.02(2)(b) to make orders that would effectively adjourn a judge's fixed trial date.

Consequently, the motion was adjourned sine die, and the parties were directed to attend before Justice Firestone for directions regarding the trial date and the relief sought.

This dental malpractice action involved two summary judgment motions based on limitation periods.

The defendant dental surgeon, Dr. Harper, argued the action was time-barred by the one-year limitation period in the Health Professions Procedural Code.

The defendant Hospital relied on the two-year limitation period in the Public Hospitals Act.

The court dismissed Dr. Harper's motion, finding a genuine issue for trial regarding the plaintiff's discoverability of biological hazards.

However, the Hospital's motion was granted, as its limitation period was not subject to discoverability and had expired years before the action was commenced.

The plaintiffs in a proposed class action brought a contempt motion against Merchant Law Group LLP and two of its lawyers for allegedly breaching a carriage order that stayed MLG's Ontario action and prohibited similar class actions without leave.

The court found that MLG's subsequent emails to Ontario residents, which included retainer agreements referencing "class proceedings," were careless, unprofessional, and arguably in breach of the order.

However, the court could not find contempt beyond a reasonable doubt because the emails primarily discussed "joinder actions" and the clarity of the order regarding class actions was established after some of the impugned emails.

Despite dismissing the contempt motion, the court expressed strong displeasure with the respondents' conduct and ordered them to pay $5,000 in costs to the plaintiffs, and issued a further order clarifying future prohibitions on contacting Ontario residents for class actions.

The applicants, cancer researchers at the University Health Network, sought judicial review of the hospital CEO's decision affirming an investigation committee's finding that they committed research misconduct.

The committee found the applicants guilty of falsification, fabrication, and material non-compliance, resulting in a suspension of their research activities.

The Divisional Court held that the CEO's decision was subject to judicial review and reviewable on a reasonableness standard.

The court quashed the findings of falsification and fabrication as unreasonable because the committee could not identify who altered the images.

However, the court upheld the finding of material non-compliance based on systemic flaws in the applicants' laboratory management.

The matter of sanction was remitted for reconsideration.

The applicants sought to bring their application for judicial review before a single judge of the Divisional Court pursuant to s. 6(2) of the Judicial Review Procedure Act.

The underlying application challenged the respondent hospital's decision to suspend the applicants' research activities following a finding of research misconduct.

The court dismissed the motion, finding that the applicants failed to establish the requisite urgency or that a delay would result in a failure of justice, noting the applicants' own delay in bringing the application.

The matter was transferred to be heard by a full panel of the Divisional Court.

The College of Optometrists of Ontario brought disciplinary proceedings against the member for failing to abide by a written undertaking to complete a remedial program.

The member pleaded guilty to professional misconduct.

The Discipline Committee accepted the guilty plea and the joint submission on penalty.

The member was reprimanded, had terms and conditions placed on her certificate of registration requiring completion of a remediation program, and was ordered to pay $5,000 in costs.

The appellant physician appealed a decision of the Discipline Committee revoking his certificate of registration for professional misconduct, including sexual abuse of a patient and conduct unbecoming a physician due to an aggressive outburst at a school concert.

The appellant argued the Committee erred by refusing to sever the sexual abuse allegation, making unreasonable credibility findings, and improperly disciplining him for off-duty conduct.

The Divisional Court dismissed the appeal, finding the Committee's decisions on severance, credibility, and off-duty conduct were reasonable and supported by the evidence.

The appellants appealed a motion judge's order finding them in continued contempt of a previous court order that prohibited them from dispensing prescription eyewear without valid prescriptions.

The motion judge had imposed a fine of $50,000 per day, totaling $16,000,000.

On appeal, the appellants argued they were denied procedural fairness, that the motion judge erred in relying on evidence regarding franchisees, and that the penalty was excessive.

The Court of Appeal dismissed the appeal, finding the appellants had ample opportunity to respond to the allegations but made a tactical decision not to, that the evidentiary inferences were open to the motion judge, and that the massive fine was justified by the brazen and ongoing nature of the contempt.

The appellants, an optician and his associated companies, appealed a finding of contempt and a $1 million fine for flagrantly breaching a court order.

The underlying order prohibited them from prescribing and dispensing corrective lenses without a prescription from an optometrist or physician.

The Court of Appeal dismissed the appeal, finding that the notice of application was adequate, the self-represented appellant received a fair hearing, and the consolidated hearing on liability and penalty did not vitiate the contempt finding.

The $1 million fine was upheld due to the appellants' deliberate and protracted disobedience of the court order.