Gina M. Scarcella

The plaintiff brought a certification motion for a class action regarding systemic negligence.

During the hearing, the judge noted a statement in the plaintiff's factum suggesting the judge had previously stated the case was ideally suited for a class action.

Concerned about a reasonable apprehension of bias, the judge inquired about the comment.

After clarification that the comment was misreported and actually related to US class action regimes, the judge adjourned the first day to allow parties to consider a recusal motion.

Neither party wished to bring a recusal motion.

The plaintiff requested an adjournment due to lost hearing time, which the Crown did not oppose.

The hearing was adjourned.

In a proposed class action brought by a former RCMP officer alleging systemic sexual harassment and discrimination against female RCMP members, the defendant Crown moved under Rule 21 to strike the statement of claim for disclosing no reasonable cause of action.

The Crown argued that systemic negligence claims against the RCMP amounted to impermissible direct liability contrary to the Crown Liability and Proceedings Act, that no contractual employment relationship existed, and that the claim was statute‑barred.

The court held that the breach of contract claim was untenable because the employment relationship of RCMP members is statutory rather than contractual and struck that portion of the claim.

However, the court found it was not plain and obvious that the systemic negligence claim failed, holding that the pleadings could support vicarious liability of the Crown for collective misconduct of Crown servants.

The limitation issue could not be resolved on a pleadings motion.

The federal government sought costs of $16,235.75 on a partial indemnity scale against the Barbra Schlifer Commemorative Clinic and the City of Toronto following the dismissal of their respective motions for leave to appeal and leave to intervene regarding changes to the firearms registry.

The court declined to award costs against the City of Toronto, noting the usual rule that intervenors are neither granted nor awarded costs and that the City acted in good faith.

The court also declined to award costs against the Clinic, recognizing it as a non-profit organization that advanced a claim in the public interest with a genuine interest in the issues in dispute.

The moving party sought leave to appeal a decision refusing an interlocutory injunction to prevent the federal government from destroying data about unrestricted firearms in the Firearms Registry.

The moving party argued that the destruction of data would disproportionately affect women and endanger their safety, violating sections 7 and 15 of the Charter.

The Divisional Court dismissed the motion, finding no conflicting decisions that applied different principles and no good reason to doubt the correctness of the motion judge's discretionary decision to refuse the injunction.

The City of Toronto sought leave to intervene in a motion for leave to appeal a decision refusing an interlocutory injunction regarding the federal firearms registry.

The underlying application by the Barbra Schlifer Commemorative Clinic challenged the constitutionality of legislation eliminating the requirement to register unrestricted firearms.

The court dismissed the City's motion to intervene, finding that the City could not make a useful contribution to the narrow issue of whether leave to appeal should be granted, as no further evidence would be admitted and the applicant could fully argue the relevant issues.

Following a decision on a special case in favour of the plaintiff, the parties reached a consensus on costs.

The Court of Appeal ordered costs of $15,000 inclusive of taxes and disbursements payable forthwith by Canada to the plaintiff.

The plaintiff brought a class action against the Attorney General of Canada alleging Health Canada was negligent in regulating temporomandibular joint implants.

The defendant moved to decertify the action, arguing the pleadings did not establish a private law duty of care.

On a special case stated to the Court of Appeal, the court held that while a regulator's public statements alone do not create proximity, the plaintiff's allegations that Health Canada repeatedly misrepresented the safety of the implants and failed to correct the misrepresentation despite knowing the risks could arguably establish a prima facie duty of care.

The motion was granted, allowing the claim to proceed.

The plaintiff brought a class action against the manufacturer of a medical device and the Attorney General of Canada, alleging Health Canada was negligent in its regulation of the device.

The Attorney General moved to strike the claim on the basis that it owed no private law duty of care to the plaintiff.

The motions judge dismissed the motion, finding a full factual record was necessary.

On appeal, the Divisional Court allowed the appeal and struck the claim, holding that it was plain and obvious under the Anns test that the federal government did not owe a private law duty of care to individual consumers of medical devices, and that residual policy considerations negated any such duty.

The appellant sought a declaration that s. 43 of the Criminal Code, which justifies the reasonable use of force by way of correction by parents and teachers against children, violates ss. 7, 12, and 15(1) of the Charter.

The Supreme Court of Canada dismissed the appeal, holding that s. 43 does not offend the Charter.

The Court found that s. 43 is not unconstitutionally vague or overbroad, does not constitute cruel and unusual punishment, and does not discriminate against children, as it is grounded in their actual needs and circumstances by protecting them from the blunt instrument of the criminal law for minor disciplinary contacts.