John A. Campion

Apotex brought an action against MDS (now Nordion) for breach of contract and negligence arising from bioequivalence studies conducted by MDS for Apotex's generic drug applications to the FDA.

The FDA refused to accept the studies due to MDS's failure to comply with U.S. regulatory requirements, forcing Apotex to repeat or certify the studies and delaying the launch of its drugs.

The court found MDS breached the Master Laboratory Services Agreement and its duty of care.

The court rejected MDS's defences regarding standing and the limitation period.

Apotex was awarded over $11.3 million in damages for the costs of repeating/certifying the studies and for lost profits due to the delayed market entry.

A secondary market misrepresentation class action was brought against a coal mining company and its former CFOs and directors following the company's restatement of financial statements for 2010-2012.

The motion judge granted leave to proceed against the company but denied leave against the individual defendants, finding they had established a reasonable investigation defence.

The Court of Appeal reversed, holding that the motion judge erred by treating the leave motion as a mini-trial and failing to consider significant credibility issues and gaps in the evidentiary record.

The court found that the defendants' position—that they should evade liability because they previously made material misrepresentations in the restatement but are now telling the truth—was inconsistent with fundamental securities regulation principles requiring scrupulous continuous disclosure.

The defendant corporation moved for leave to appeal a decision granting the plaintiff leave to commence a secondary market securities misrepresentation action against it.

The motion judge had dismissed the action against the individual directors and officers, finding they established a reasonable investigation defence, but allowed the action against the corporation to proceed based on a restatement of financial results.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's order because the corporate identification doctrine suggests the corporation should also benefit from the reasonable investigation defence established by its directing minds.

The plaintiffs were successful on a bifurcated motion for leave to appeal a class action certification order.

They sought costs of $65,000 on a partial indemnity basis for the portion of the motion dealing with the remaining issues.

The defendant opposed an award of costs at this time, arguing for a single costs award at the end of the appeal.

The court rejected the defendant's argument, finding that the issues were discrete and an attendance-by-attendance award was appropriate.

The court fixed costs at $55,000, payable forthwith, after adjusting for duplication of time by senior counsel.

In a class action arising from a train derailment where the defendants admitted liability, the parties could not agree on a litigation plan for the individual issues phase to determine damages.

The plaintiffs proposed a plan involving a test case for mental distress damages, while the defendants proposed a more cumbersome procedure.

The court rejected both plans as inadequate for achieving access to justice and judicial economy.

The court proposed an alternative three-tiered claims procedure based on the amount claimed and directed the parties to negotiate a final plan based on this proposal.

In a class action arising from a train derailment where the defendants admitted liability, the parties could not agree on a litigation plan for the individual issues phase to determine damages.

The plaintiffs proposed a plan involving a test case for mental distress damages, while the defendants proposed a more cumbersome procedure with extensive discovery rights.

The court rejected both plans as inadequate and contrary to the goals of access to justice and judicial economy.

The court proposed a three-tier procedure based on the quantum of damages claimed and directed the parties to negotiate a plan based on this proposal.

The plaintiff sought leave under s. 138.8 of the Securities Act to pursue a secondary market misrepresentation class action arising from a mining company’s public restatement of prior financial statements related to “bill and hold” revenue recognition.

The court held that the explicit restatement acknowledging prior errors and internal control weaknesses created a reasonable possibility that the claim against the issuer could succeed at trial.

However, the individual officers and directors demonstrated a reasonable investigation defence through detailed evidence of their reliance on professional auditors and careful review of revenue recognition practices.

As a result, the statutory leave requirement was satisfied only as against the issuer company.

Leave was refused against the individual defendants.

The respondents were successful on a motion for leave to appeal and the subsequent appeal.

They sought costs of $82,692.85 for the leave motion and $108,534.16 for the appeal.

The appellant argued the amounts were excessive and sought its own costs for the leave motion.

The Divisional Court found the respondents' claimed costs excessive given the focused nature of the issues and the number of hours docketed.

The court fixed costs payable to the respondents at $120,000.00 inclusive of HST and disbursements.

This was a costs decision arising from an individual issues motion in a class proceeding after judgment on common issues had been granted.

The representative plaintiffs sought recovery of counsel fees and substantial disbursements incurred through the common issues phase, including occupational therapy and psychological assessment reports for class members.

The court held that Rule 49 offers were not to affect costs at this stage, excluded certain unrecoverable disbursements, and treated only part of the medical assessment expenses as attributable to successfully advancing the action to the individual issues phase.

Costs of $214,624.41 all-inclusive were awarded, with the balance of certain disbursements reserved for the individual issues phase.

The appellant courier company appealed a class action certification order, arguing the motions judge erred in certifying a common issue regarding whether its customs brokerage services were 'unsolicited' under the Consumer Protection Act.

The appellant contended that determining whether services were unsolicited required an individualized inquiry into each consumer's knowledge and intent.

The Divisional Court dismissed the appeal, finding the claim was systemic and based on standard form contracts that did not mention brokerage fees, meaning the issue could be determined on a common basis without individualized inquiries.

The plaintiffs sued their insurer for allegedly breaching a hold harmless agreement related to outstanding accounts from health service providers.

When the insurer failed to deliver statements of defence, the plaintiffs obtained a noting in default and a default judgment.

The motion judge refused to set aside the defaults.

On appeal, the Court of Appeal allowed the appeal and set aside the defaults, finding that the insurer had a reasonable explanation for its failure to defend because the hold harmless agreements had not yet been triggered, and that the plaintiffs would suffer no prejudice from setting aside the defaults.

The defendant, United Parcel Service Canada Ltd., sought leave to appeal an order certifying a class proceeding under the Class Proceedings Act, 1992.

The proposed appeal challenged the certification of common issues relating to whether the defendant's brokerage fee practices constituted false or unconscionable representations, forced renegotiation of contracts, or breached requirements for future performance agreements under the Consumer Protection Act, 2002.

The Divisional Court found no conflicting decisions or good reason to doubt the correctness of the motion judge's certification order.

The motion for leave to appeal was dismissed.

The landlord defendants appealed an order certifying a class action against them founded on common law negligence following a series of devastating propane explosions.

The appellants argued that as landlords, they owed no duty of care to third parties in the surrounding residential neighbourhood.

The Divisional Court dismissed the appeal, finding it was not plain and obvious that the landlords had no obligation to act, given allegations that they knew of the highly dangerous propane business and the foreseeable risk of catastrophic harm to nearby residents.

The applicants sought further relief in an ongoing Commercial List proceeding involving the appointment of a manager over several corporations.

A respondent argued that the court was functus officio because the earlier order appointing the manager was final, invoking cause of action estoppel.

The court rejected this argument, emphasizing that receivership or management orders are inherently ongoing and include come‑back clauses allowing parties to seek further directions.

The judge held that such orders are intended to function as a “living declaration,” and that additional relief or amendments to the application could be considered without requiring a new proceeding.

The preliminary objection was dismissed and the court retained jurisdiction to hear further matters in the proceeding.

The applicants moved for the appointment of an Inspector as receiver/manager over 31 jointly owned commercial real estate corporations.

The court found significant evidence of oppressive conduct by the respondents, including the unauthorized placement of mortgages, misappropriation of funds for personal use, co-mingling of bank accounts, and failure to maintain proper books and records.

Concluding that the applicants' interests required protection and that the respondents had breached their contractual obligations, the court held it was just and convenient to appoint the receiver/manager.

The plaintiffs and four defendants (the Teskey defendants) sought leave to appeal a decision regarding the certification of a class action arising from a propane facility explosion.

The motions judge had refused to certify claims against the Teskey defendants in strict liability, nuisance, and under the Occupiers' Liability Act, but certified a claim in common law negligence.

The Divisional Court dismissed the plaintiffs' motion for leave to appeal, finding no reason to doubt the correctness of the refusal to certify those claims against the landlords.

The Court granted the Teskey defendants' motion for leave to appeal the certification of the common law negligence claim, finding good reason to doubt whether the landlords owed a duty of care to neighbours based on the lease provisions.

The appellant appealed a decision of a Master who declined to proceed with a reference related to a judgment for partition and sale of several apartment properties.

After obtaining the judgment, the appellant privately sold its minority interest to the majority owner outside the reference process and removed the instrument registering the judgment for sale.

The appellant later sought to continue the reference solely to pursue an accounting against the property manager for alleged overcharged management fees.

The court held that the reference was governed by the judgment for sale and that the accounting was merely ancillary to the sale process.

Because the appellant’s private transaction rendered the judgment for sale moot, the Master correctly found that she lacked jurisdiction to continue the reference.

The appeal was dismissed.

The moving party sought leave to appeal to the Divisional Court from decisions of the Ontario Municipal Board (OMB) refusing to change the designation of the appellants from two individuals to a ratepayers' association.

The moving party argued the OMB erred in its interpretation of its rules regarding minor errors and reviews.

The Divisional Court dismissed the motion for leave to appeal, finding no error of law or jurisdiction in the OMB's conclusion that the individuals who signed the appeal forms were the proper parties.

The Court also addressed a potential conflict of interest involving the moving party's counsel and adjourned the issue of costs.

In a class proceeding arising from a major propane facility explosion, the plaintiffs sought to amend their statement of claim and certify claims against additional defendants associated with the ownership and leasing of the facility property.

The court considered whether the proposed amended pleading satisfied the s. 5(1)(a) requirement of the Class Proceedings Act by disclosing a reasonable cause of action.

Claims in strict liability and nuisance against the property-owning defendants were struck because the pleadings failed to meet the legal prerequisites and improperly characterized the alleged nuisance.

Negligence claims under the Occupiers’ Liability Act were also dismissed because the alleged damages occurred off the premises and the statute only applies to persons entering the premises.

However, the court held that the plaintiffs had properly pleaded a viable common law negligence claim based on the defendants’ alleged rights of control and failure to intervene in unsafe operations.

Certification against the remaining defendants proceeded solely on the basis of the common law negligence cause of action.

In a certified class proceeding arising from explosions at a propane facility, class counsel moved for an order restraining an insurer and its counsel from communicating directly with class members during the court‑approved opt‑out period.

The insurer’s counsel had sent letters stating the insurer would opt insured class members out of the class action and pursue their claims through a subrogated action.

The court held the communications were misleading, interfered with the solicitor‑client relationship between class counsel and class members, and violated the Rules of Professional Conduct.

The court reaffirmed that insureds retain control of litigation until fully indemnified for both insured and uninsured losses.

An order was made prohibiting the insurer and its counsel from communicating with affected class members without court approval or consent of class counsel during the opt‑out period.