Byron David Shaw

This was a Rule 7.08 motion for court approval of a $5 million settlement for a minor, Ethan Ajayi, in a medical negligence action.

Unusually, the plaintiffs' counsel did not support the settlement terms but was instructed by the litigation guardian to seek approval.

The court approved the settlement and the associated legal fees, finding it to be in the minor's best interests given the inherent risks of litigation, particularly concerning causation and liability.

The decision also addressed the granting of a partial sealing order to protect solicitor-client privileged information, while declining the request for an in camera hearing, thereby balancing the principle of open courts with the need to preserve fair trial rights.

The plaintiff, Dr. Darryl Gebien, sought court approval for a Third-Party Funding Agreement with Omni Bridgeway Ltd. for a proposed class action against numerous pharmaceutical companies regarding the opioid crisis.

Several defendants objected to specific provisions of the agreement, including those related to amendments, assignments, attornment, costs enforcement, termination procedures, accrued costs, and confidentiality.

The court found that while the agreement generally met the requirements for approval, several of the defendants' objections, particularly concerning comprehensive attornment by Omni Bridgeway Ltd. and the broad confidentiality provisions, were "genuinely meaningful" and required resolution.

The motion for approval was adjourned to allow the parties to address these issues, with the court emphasizing that it is not its role to draft the agreement.

This appeal concerned proposed class actions against auto insurers for improperly deducting HST from statutory accident benefits (SABs) and against the Financial Services Commission of Ontario (FSCO) for alleged regulatory failures.

The motion judge had dismissed claims against insurers due to the exclusive jurisdiction of the Licence Appeal Tribunal (LAT) under s. 280 of the Insurance Act, but allowed claims against FSCO to proceed.

The Court of Appeal upheld this decision, confirming the LAT's exclusive jurisdiction over SAB disputes and affirming the court's jurisdiction over tort claims against the regulator.

The court also refused leave to appeal the motion judge's costs order, finding it within his discretion.

The plaintiffs brought a motion, with the defendants' consent, to certify a proposed class action for settlement purposes, approve a settlement agreement, approve the plan for disseminating notices, approve the forms of the notices, and grant a privacy and disclosure order.

The class action concerned defective implantable cardioverter or cardiac resynchronization therapy defibrillators manufactured by the defendants, which were prone to premature battery depletion.

The court found that all criteria for certification under the Class Proceedings Act, 1992, were satisfied, noting that these criteria may be applied less rigorously in a settlement context.

The motion was granted, approving the certification for settlement, the settlement agreement, and related procedural orders.

The Plaintiffs, Khurram Shah and Alpina Holdings Inc., brought a competition law class action against numerous defendants concerning an alleged price-fixing conspiracy for Lithium Ion Battery Cells (LIBs).

This decision addresses the Plaintiffs' motion for court approval of settlement agreements reached with three groups of defendants: NEC Corporation and NEC Tokin Corporation (collectively 'NEC'), Samsung SDI Co., Ltd. and Samsung SDI America, Inc. (collectively 'Samsung'), and Sony Corporation, Sony Energy Devices Corporation, Sony Electronics, Inc., and Sony of Canada Ltd. (collectively 'Sony').

The Plaintiffs also sought approval of class counsel fees and disbursements related to these settlements.

The court reviewed the settlements for fairness, reasonableness, and best interests of the class, considering factors such as likelihood of success, counsel's recommendation, and absence of objections.

The court also assessed the reasonableness of the requested contingency fees and disbursements.

The court approved all three settlement agreements and the requested class counsel fees and disbursements.

The plaintiff, Gregory Lennox, sued Dr. Andrew Burns for medical negligence following a colostomy reversal surgery that resulted in permanent disability, including femoral nerve damage and bowel dysfunction.

Lennox alleged failure to obtain informed consent, negligent surgical technique (including blunt dissection and failure to abandon the procedure), and negligent post-operative care for C-difficile infections.

The court found that Dr. Burns obtained informed consent, as the risks of not completing the procedure or femoral nerve damage were not material or foreseeable.

The court also found that Dr. Burns met the standard of care in his surgical technique and post-operative management, despite expert disagreement on some points.

While acknowledging the plaintiff's unfortunate outcome and the potential for femoral nerve damage to have been avoided if the surgery was terminated earlier, the court concluded that the plaintiff failed to prove negligence or causation for the majority of the claimed damages.

The action was dismissed.

Former psychiatric patients alleged that experimental ‘social therapy’ programs at a provincial psychiatric facility between 1968 and 1979 constituted torture and unlawful experimentation.

The plaintiffs moved to amend their statement of claim to add five additional former patients as plaintiffs decades after the events.

The defendants argued the claims were statute‑barred under historical limitation provisions in the Medical Act, Health Disciplines Act, Mental Hospitals Act, and Mental Health Act.

The court held it was not plain and obvious that those limitation provisions applied where the alleged conduct amounted to torture rather than professional services or treatment.

The motion to amend and add the additional plaintiffs was granted without prejudice to the defendants’ right to later raise limitation defences.

The plaintiff moved for the appointment of a receiver over the books and records of several corporate defendants following loans exceeding USD $111 million for casino and gaming ventures in Jamaica and the Dominican Republic.

The defendants failed to provide required financial reporting, access to records, and audited statements despite contractual obligations and prior court orders.

Evidence indicated possible fraudulent reporting, significant discrepancies in financial information, and unexplained diversion of approximately $50 million to related entities.

The court held that the defendants had repeatedly obstructed access to records and that the circumstances justified the equitable appointment of a receiver to secure and review corporate books and records.

The motion was granted.

The defendants moved for a stay of an action concerning approximately $35 million in reserve funds retained from Casino Rama revenues.

The plaintiff alleged that maintaining the reserves breached limits imposed under a later revenue-sharing agreement, while the defendants argued the dispute arose under an earlier agreement that required arbitration.

The court considered the competence-competence principle and jurisprudence directing courts to defer to arbitration where it is arguable that a dispute falls within an arbitration clause.

Because the dispute arguably arose under the earlier contract incorporating arbitration provisions, the court held that the matter should proceed to arbitration.

The action was therefore stayed pending determination by an arbitrator of whether the dispute falls within the arbitration agreement.

The appellant union challenged the employer's unilaterally imposed mandatory random alcohol testing policy at a paper mill.

The arbitration board allowed the grievance, finding the policy unjustified absent evidence of a workplace alcohol problem.

On judicial review, the board's decision was set aside, and the New Brunswick Court of Appeal dismissed the union's appeal.

The Supreme Court of Canada (6-3) allowed the appeal, holding the arbitration board's decision was reasonable.

The majority found the board properly applied the established arbitral "balancing of interests" test, which requires evidence of enhanced safety risks to justify random testing.

The dissent would have found the board's decision unreasonable for departing from the arbitral consensus on the evidentiary threshold without explanation.

The plaintiffs brought a medical malpractice action alleging negligence and lack of informed consent arising from cosmetic breast augmentation and tummy tuck surgery.

The court excluded the plaintiffs’ expert evidence because the expert lacked familiarity with the Ontario standard of care, leaving no admissible evidence on the negligence claim.

The court therefore dismissed the standard of care allegations but proceeded on the issue of informed consent.

Considering the patient’s limited English proficiency, education, and the circumstances surrounding the consultations and consent forms, the court found that the physician failed to ensure the patient understood the material risks and consequences of the procedures.

The court held that a reasonable person in the patient’s circumstances would not have proceeded had adequate disclosure been made, and awarded damages.