Harvin D. Pitch

The defendants appealed a motion judge's decision to certify a class action against them regarding the manufacture and distribution of the anti-psychotic drug Zyprexa.

The plaintiffs alleged negligence and claimed restitutionary relief based on waiver of tort.

The defendants argued that proof of the amount of wrongful gain could not be a common issue and that a class proceeding was not the preferable procedure.

The Divisional Court dismissed the appeal, finding that given the uncertain state of the law regarding waiver of tort, a full evidentiary record was necessary, and the motion judge did not err in certifying the common issues or finding a class action to be the preferable procedure.

Following a mandatory mediation, the parties reached a settlement.

A dispute arose over whether one of the defendants was a party to the settlement agreement in his personal capacity.

The plaintiffs brought a motion to enforce the settlement and obtained an order compelling the mediator to testify about the mediation communications.

The defendants appealed.

The Divisional Court allowed the appeal, applying the Wigmore conditions to find that the communications during the mediation were privileged and the mediator could not be compelled to testify, as the public interest in maintaining the confidentiality of the mediation process outweighed the interest in disclosure.

The appellant's husband, who suffered from a bi-polar disorder, entered into a loan agreement with the respondent bank and later committed suicide.

The bank sued the husband's estate for the outstanding loan, and the appellant sued the bank personally for negligent misrepresentation and breach of contract, alleging the bank failed to follow its internal guidelines and ensure she had independent legal advice.

The Court of Appeal upheld the striking of the appellant's personal claims, finding the bank owed no duty to warn her about its internal policies.

In the bank's action, the Court held that the estate's defence of equitable set-off was not subject to the two-year limitation period under the Trustee Act, but struck the defence anyway because the underlying claims had already been dismissed.

The appellant law firm appealed an order regarding the assessment of its legal accounts to its former client.

The Court of Appeal found that a combination of a letter and a voicemail message constituted a concluded agreement between the parties for the payment of the account.

As part of this agreement, the client waived her right to have the account assessed.

The appeal was allowed, the lower court order was set aside, and the client was ordered to pay the outstanding account of $32,384.87 plus costs.

The appellant appealed a judgment ordering him to repay a $90,000 loan to the respondent estate.

The appellant argued the action was barred by the six-year limitation period because the loan arose from a promissory note with a fixed repayment date of November 30, 1990.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the debt was a continuing one and that the appellant had acknowledged the debt on multiple occasions, taking it outside the limitation period.

Appeal concerning priority between prior perfected PPSA security interests and a later court-ordered charge granted to a mortgagee in possession for occupancy costs incurred while warehousing the bankrupts' personal property.

The court held that the priority issue was not governed by either the Bankruptcy and Insolvency Act or the Personal Property Security Act, and instead had to be resolved under common law and equitable principles.

The majority concluded that, although the appellants' security interests were first in time, their continuing and concerted misconduct in delaying payment of occupancy costs justified postponing their priority in favour of the mortgagee's charge.

The appeals were dismissed and the mortgagee's priority was upheld.