Frank J. McLaughlin

The plaintiffs brought a motion to certify a class action against the manufacturers and marketers of the antipsychotic drugs Abilify and Abilify Maintena, alleging negligence, failure to warn, and conspiracy regarding the risk of impulse control disorders.

The defendants opposed certification and brought a motion to stay the proceeding as an abuse of process, citing a parallel authorized class action in Québec.

The court found that the plaintiffs met all the criteria for certification under section 5(1) of the Class Proceedings Act, including establishing a plausible methodology for proving general causation.

The court dismissed the defendants' stay motion, finding that the Ontario action was not an abuse of process despite the last-minute amendments to the Québec claim that mirrored the Ontario pleading.

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 in a long-standing medical malpractice action sought an adjournment of an 8-week jury trial, scheduled to commence April 15, 2019, due to a recent breakdown in counsel-client relationship and subsequent change of solicitors.

The defendants opposed the adjournment, emphasizing the age of the action, extensive trial preparation, and the significant delay a new trial date would entail.

The court, while expressing reluctance and noting that the change of counsel at the eleventh hour did not constitute an "exceptional circumstance" under the Toronto practice direction, ultimately granted the adjournment on terms.

This decision was influenced by the complexity of the medical negligence case and the involvement of a party under disability, necessitating new counsel sufficient time to review the file and address critical issues like Medicare and Medicaid.

The parties appeared before the court to advise that the contested issue of carriage had been resolved by consent.

The court approved an agreed-upon schedule for the proceedings leading up to a certification motion and potential jurisdiction motions, including deadlines for the production of medical and gambling records, delivery of materials, cross-examinations, and factums.

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.

A Teva employee fraudulently requisitioned and deposited 63 cheques into accounts under names matching or resembling real customers.

The majority held the collecting banks were liable in conversion because the payees were neither fictitious nor non-existing under s. 20(5) of the Bills of Exchange Act.

The Court restored the motions judge’s decision and rejected the banks’ false-payee defence.

The appellants appealed a jury verdict dismissing their medical negligence action arising from delayed diagnosis and treatment of an anastomotic leak following routine bowel surgery, which resulted in septic shock and bilateral below-knee amputations.

The jury found five defendants breached the standard of care but that none of the breaches caused the injuries.

The Court of Appeal addressed the proper causation test in delayed diagnosis cases involving multiple tortfeasors, finding that the trial judge's use of the word "necessary" from Clements in jury questions and instructions was problematic and that the phrase "caused or contributed to" should not have been rejected.

However, the court held that the jury clearly accepted the defence theory that a rare necrotizing infection, not the delay, caused the injuries, and no reformulation of questions or instructions would have changed the verdict.

The Plaintiffs' medical negligence action against the Defendants was dismissed after a jury found breaches of standard of care but no causation.

The Defendants, as successful parties, sought costs.

The court, exercising its discretion under the Courts of Justice Act and Rules of Civil Procedure, rejected the Plaintiffs' arguments for no costs based on "divided success" access to justice concerns, or the Canadian Medical Protective Association covering the physicians' costs.

The court awarded costs on a partial indemnity basis to the Defendant Physicians and the Defendant Hospital, fixing specific amounts.

While the main Plaintiff, Jordan Sacks, was held liable for the bulk of the costs, the Family Law Act claimants (Jordan's wife and parents) were held liable for apportioned, rather than joint and several, amounts to ensure fairness given the derivative nature and comparatively modest value of their claims.

An employee of the respondent perpetrated a large-scale fraud by requisitioning cheques payable to six entities and depositing them into accounts he controlled.

Two of the entities were invented, and four were customers not owed money.

The respondent sued the appellant banks for conversion.

The Court of Appeal allowed the banks' appeal, finding they had a valid defence under s. 20(5) of the Bills of Exchange Act.

The court held that the two invented payees were non-existing, and all six payees were fictitious because the respondent's directing minds never formed an intention to pay them.

In a jury trial for medical negligence arising from hospital treatment, the parties disputed the proper wording of causation questions to be put to the jury and whether the jury should provide particulars explaining any finding of causation.

The plaintiffs argued the jury should be asked whether the defendants' breach 'caused or contributed to' the injury, relying on principles recognizing multiple causes in negligence.

The defendants argued the jury must be instructed using the Supreme Court of Canada’s 'but for' causation test articulated in Clements.

The court held the jury questions should follow the 'but for' formulation, finding the 'cause or contribute' wording risked confusion.

The court also ruled that if causation were found, the jury should be required to provide particulars of its reasoning due to the complexity of the medical evidence and multiple defendants.

In a medical negligence action arising from alleged delayed diagnosis of a postoperative complication leading to catastrophic injuries, the defendant physicians brought a motion seeking permission for one defendant physician to testify at trial by videoconference.

The physician was on maternity leave in another province and argued that attending in person would cause expense and inconvenience.

The court considered Rule 1.08 of the Rules of Civil Procedure and the efficiency principles articulated in Hryniak v. Mauldin.

The court held that the request was inappropriate because the proposed witness was a party defendant whose credibility and conduct were in issue, and the plaintiff had a fundamental right to have the parties attend court for trial.

The inconvenience to the defendant did not constitute sufficient hardship to override due process considerations.

The plaintiffs brought a medical negligence action against the defendant obstetrician following the birth of a child who suffered a catastrophic brain injury resulting in severe cerebral palsy.

The injury was caused by an occult cord prolapse during delivery.

The plaintiffs alleged the defendant failed to recognize risk factors, failed to obtain informed consent, and negligently proceeded with a vacuum-assisted delivery in the delivery room rather than the operating room.

The court dismissed the action, finding that the defendant met the standard of care in his assessment of risk factors, obtained valid consent, and appropriately exercised his clinical judgment in proceeding with the vacuum in response to a non-reassuring fetal heart rate.

Furthermore, the court found that the cord prolapse and resulting injury would have occurred regardless of the defendant's interventions.

A pharmaceutical company brought summary judgment motions against banks for conversion after an employee fraudulently issued corporate cheques payable to entities with names similar to legitimate customers and deposited them into accounts he controlled.

The banks asserted statutory defences under the Bills of Exchange Act, including the fictitious payee rule and the holder in due course provision, and advanced negligence-based counterclaims and equitable set-off.

The court held the payees were plausibly identifiable real entities and therefore not fictitious or non‑existent for the purposes of s. 20(5) of the Act.

It further found that s. 165(3) did not apply because the cheques were not delivered to authorized persons entitled to them.

The negligence-based counterclaims and related defences were barred by the strict liability regime governing cheque conversion.

The plaintiffs appealed a decision denying certification of a proposed class proceeding against the manufacturers of the drug Seroquel, as well as the associated costs award.

The Divisional Court upheld the motion judge's finding that the pleadings failed to disclose a cause of action under s. 5(1)(a) of the Class Proceedings Act and that the plaintiffs failed to meet the evidentiary threshold for the remaining certification criteria.

The court also found no error in principle in the costs award, noting the motion judge properly exercised her discretion.

The appeal was dismissed with costs fixed at $30,000.

Following dismissal of a proposed pharmaceutical class action certification motion, the successful defendants sought $1.2 million in costs.

The plaintiffs argued that no costs should be awarded due to public interest considerations relating to individuals with mental illness or, alternatively, that costs should be limited to $75,000.

The court held that although individuals with mental illness may constitute a historically disadvantaged group, the evidentiary record did not engage the public interest considerations under s. 31 of the Class Proceedings Act, 1992.

Applying the principles governing certification motion costs and considering the complexity of the proceeding, the plaintiffs’ litigation conduct, and comparable awards, the court fixed fees at $475,000 and allowed most disbursements subject to a reduction in travel expenses.

The plaintiffs brought a motion to certify a class action against the defendants, the manufacturers of the antipsychotic drug Seroquel.

The plaintiffs alleged that Seroquel caused various health risks, including weight gain and diabetes, and that the defendants were negligent in their design, testing, marketing, and failure to warn, particularly regarding off-label uses.

The court dismissed the certification motion, finding that the plaintiffs failed to satisfy any of the criteria under section 5(1) of the Class Proceedings Act.

The statement of claim was found to be fundamentally deficient, failing to disclose a valid cause of action.

Furthermore, the court found no identifiable class, a lack of common issues capable of being assessed in common, that a class action was not the preferable procedure, and that the proposed representative plaintiffs were unsuitable.

The appellant obstetrician appealed a trial judgment finding him negligent in the forceps delivery of an infant who suffered catastrophic brain injuries due to an umbilical cord prolapse.

The trial judge found the appellant breached the standard of care by disengaging the fetal head during the procedure.

The appellant argued the trial judge erred in discharging the jury, finding negligence, and assessing causation.

The respondents cross-appealed the future care costs award.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge's decision to discharge the jury was reasonable, his factual findings on negligence were supported by the record, and the damages award was fair.

The appellants sought $207,612.83 in partial indemnity costs for the appeal against the respondent Dr. Librach, who proposed $101,571.06.

The Court of Appeal fixed the appellants' partial indemnity costs against Dr. Librach at $100,000 inclusive of taxes, plus disbursements, noting that even the respondent's proposed figure was on the high end.

The appellants appealed the dismissal of their medical negligence action relating to a birth injury that resulted in cerebral palsy.

The trial judge had dismissed the action against the attending obstetrician, nurse, and hospital.

The Court of Appeal allowed the appeal with respect to the obstetrician, finding that the trial judge made inconsistent findings regarding the interpretability of fetal heart rate monitor outputs and erred in concluding that the bradycardia would have occurred regardless of the application of a vacuum extractor.

A new trial was ordered for the claim against the obstetrician.

The appeal regarding the nurse and hospital was dismissed.

The appellant commenced an application for oppression relief under the Canada Business Corporations Act, supported by an affidavit from an individual who lacked direct knowledge and was unavailable for cross-examination.

When the appellant attempted to substitute the affidavit after the respondents had filed their responding materials, the motions judge struck the application as an abuse of process, with leave to re-introduce it upon payment of costs thrown away.

The Court of Appeal dismissed the appeal, finding the motions judge was entitled to infer prejudice and properly exercised his discretion.