Douglas Lennox

The plaintiff sought certification of a proposed national class action alleging that a prescription smoking‑cessation drug caused neuropsychiatric adverse events and that the manufacturer breached its duty to warn consumers and physicians.

The court considered the certification criteria under the Class Proceedings Act, 1992, including whether there was some basis in fact for the proposed common issues and whether a class proceeding was the preferable procedure.

The court held that there was some basis in fact for a duty to warn claim against the Canadian manufacturer based on expert and anecdotal evidence of adverse psychiatric events.

The proposed class definition and common issues were amended to focus on specific neuropsychiatric symptoms and the adequacy of product monograph warnings between 2007 and 2010.

The proceeding was certified against the Canadian manufacturer but not against the U.S. parent company, whose involvement lacked a factual basis.

In a proposed pharmaceutical products liability class action concerning alleged neuropsychiatric side effects of the smoking cessation drug Champix, the defendants brought a refusals motion seeking further production of medical and related records from proposed representative plaintiffs during cross‑examinations conducted for a certification motion.

The defendants argued the additional records were necessary to challenge whether there was some basis in fact for the proposed common issues and certification criteria.

The court accepted that the requested information had some relevance but held that the scope of cross‑examination on a certification motion is narrower than discovery and must comply with proportionality principles.

Given that the plaintiffs had already produced medical records and answered extensive questions, compelling further production would improperly extend the inquiry into the merits of the case and impose a disproportionate burden.

The motion to compel further answers and productions was therefore dismissed.

The appellants, automobile insurers, appealed the dismissal of their motions to dismiss class proceedings brought by the respondent insureds.

The insureds claimed that the insurers breached statutory condition 6(7) by reducing their actual cash value payments by the policy deductible when taking title to the salvage in total loss claims.

The motion judge, bound by the Court of Appeal's previous decision in McNaughton, dismissed the insurers' motions.

A five-judge panel of the Court of Appeal held that McNaughton was wrongly decided, as statutory condition 6(7) does not quantify the insurer's payment obligation but merely gives the option to acquire salvage.

The Court overruled McNaughton, allowed the appeals, and dismissed the insureds' actions.

The respondent estate brought a wrongful death action and sought a declaration that a proposed contingency fee agreement with its lawyers was not prohibited by the Champerty Act.

The applications judge granted the declaration.

The Attorney General appealed.

The Court of Appeal held that contingency fee agreements are no longer per se champertous at common law, as the historic rationale for absolute prohibition is no longer justified and access to justice concerns favour their use.

However, a specific agreement may still be champertous if the lawyer has an improper motive, which can be assessed by examining the reasonableness and fairness of the fee structure.

Because the proposed fee was based on a percentage of recovery without a cap, it was premature to determine its fairness before the litigation concluded.

The appeal was allowed and the declaration set aside.

The moving party, a tobacco company, sought leave to intervene in an appeal concerning whether a proposed contingency fee arrangement between the plaintiff and her counsel violated the Champerty Act.

The moving party also sought to expand the evidentiary record.

The court dismissed the motion, finding that the moving party did not have a direct interest in the fee arrangement dispute and that expanding the record would unduly delay the appeal.

The plaintiffs sought to certify a class action on behalf of indirect purchasers (homeowners and end users) alleging that the defendants engaged in a price-fixing conspiracy regarding iron oxide pigment used in construction materials.

The application judge certified the action.

The defendants appealed.

The Divisional Court allowed the appeal and set aside the certification order, finding that a class proceeding was not the preferable procedure.

The court held that the plaintiffs faced insurmountable problems of proof regarding whether the alleged overcharge was passed on to them through the chain of distribution, making the action unmanageable and inappropriate for aggregate damages assessment.

The applicant union sought to certify a bargaining unit of occasional teachers employed by the respondent in its elementary panel.

The respondent argued for a composite unit including both elementary and secondary occasional teachers.

The Board found that a unit limited to the elementary panel was appropriate, mirroring the historical dichotomy in teacher collective bargaining.

The Board further held that occasional teachers on the secondary panel who occasionally worked in primary schools were not employees in the bargaining unit for the purposes of the certification application.