Jill McCartney

The representative plaintiffs moved to discontinue their Ontario class action regarding allegedly defective surgical staplers, intending to rely instead on an overlapping class action in British Columbia.

The defendants opposed the discontinuance and sought an indefinite adjournment, arguing that discontinuing the Ontario action before the resolution of their stay application in B.C. would prejudice absent class members by restarting the limitation period.

The court agreed that the risk of limitations prejudice to absent class members was too great and adjourned the motion indefinitely.

The court also invoked the Canadian Judicial Protocol for the Management of MultiJurisdictional Class Actions to coordinate with the B.C. court.

The plaintiffs in a certified class action regarding transvaginal mesh devices brought a motion to approve the Notice of a Settlement Approval Hearing, the Notice Plan, and minor amendments to the 2017 Certification Order.

The parties had entered into a $21.5 million settlement.

The defendants consented to the motion.

The court approved the expansion of the class definition to include individuals implanted with the devices up to the date of the order, finding it fair and necessary.

The court also approved the proposed notices and notice plan, finding they met the statutory criteria under the Class Proceedings Act, 1992.

During a medical malpractice trial concerning an ulnar nerve injury sustained during orthopedic surgery, the defendants objected to the plaintiffs' expert orthopedic surgeon testifying on causation and standard of care issues not expressly stated in his written reports.

The court ruled that under Rule 53.03, an expert cannot testify on matters that open up a new field not mentioned in their report, nor can the court be left to infer opinions.

The expert was precluded from offering opinions on causation and the standard of care for the initial consultation, as these were not clearly articulated in his reports.

Following the successful certification of a class action regarding transvaginal mesh devices, the plaintiffs sought costs of $900,000 on a partial indemnity basis.

The certification motion was heard in two phases, with the first phase adjourned to allow the plaintiffs to gather additional evidence.

The court found that the plaintiffs were the successful party and entitled to costs.

However, recognizing that the defendants should not have to pay for the plaintiffs' 'education' from the first phase unless the defendants are ultimately found culpable, the court awarded $425,000 payable forthwith (accounting for a $25,000 deduction for an abandoned motion) and $450,000 payable in any event of the cause.

The plaintiffs sought certification of a proposed national class action alleging negligent design and failure to warn in relation to transvaginal mesh medical devices used to treat stress urinary incontinence and pelvic organ prolapse.

The court held that the pleadings disclosed viable causes of action and that the proposed class definition satisfied the identifiable class requirement under the Class Proceedings Act, 1992.

However, the plaintiffs failed to establish some-basis-in-fact for common issues, particularly because no specific design defect in the polypropylene mesh or common inadequacy in the warnings across nine different products was identified.

The evidence demonstrated significant variation among the devices, their uses, and potential complications, undermining commonality.

The certification motion was therefore adjourned under s. 5(4) of the Act to allow the plaintiffs an opportunity to amend their materials and provide further evidence supporting common issues.

A medical malpractice action arising from the treatment of a young patient presenting with neurological symptoms at a rural hospital.

The physician failed to recognize the possibility of stroke, lowered the patient’s blood pressure aggressively, and delayed consultation with a tertiary neurology centre.

The court held that the physician breached the standard of care by failing to include stroke in the differential diagnosis, lowering blood pressure despite neurological signs, and delaying transfer for specialist assessment.

Applying the “but for” causation test from Clements v. Clements, the court found that the precipitous blood pressure reduction and delayed administration of heparin promoted clot formation which caused the catastrophic stroke.

The plaintiffs established causation on a balance of probabilities and were awarded damages.

During a medical malpractice trial, the defendants brought a motion under s. 12 of the Ontario Evidence Act seeking leave to call more than three expert witnesses.

The case involved allegations that an emergency room physician negligently failed to recognize stroke symptoms and delayed transfer for specialized care, allegedly resulting in quadriplegia.

The court considered factors relating to duplication, fairness between parties, necessity of additional expert evidence, and litigation cost.

Finding that the issues concerned only standard of care and causation and that three experts were sufficient to address them, the court concluded that allowing additional experts would create unnecessary duplication and disadvantage the plaintiffs.

Leave to call more than three medical experts was therefore refused.