Justine Smith

The appellants appealed a trial judgment that dismissed their action against GlaxoSmithKline (GSK), alleging that an H1N1 vaccine manufactured by GSK caused their five-year-old daughter's death.

The appeal raised issues concerning GSK's duty to warn (including the learned intermediary rule), its post-marketing commitments, the inference of negligence from circumstantial evidence, and costs.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that GSK adequately warned the learned intermediary (the physician), met its post-marketing obligations, and that the appellants failed to prove negligence or causation on a balance of probabilities.

The court also upheld the trial judge's discretionary costs award.

The plaintiff brought a motion to certify a class action against the manufacturers of COLD-FX products, alleging that representations that the products were 'proven by science' or 'clinically proven' to reduce cold and flu symptoms were false and misleading.

The court found that the plaintiff met all the requirements for certification under section 5 of the Class Proceedings Act.

The court held that the claims under the Consumer Protection Act, the Competition Act, and for unjust enrichment disclosed valid causes of action, as reliance is not required for these claims.

The court certified the class and the proposed common issues against Bausch Health Canada Inc. and Valeant Canada LP, finding that a class proceeding was the preferable procedure.

The applicant, an incumbent biomedical waste disposal provider, challenged the award of a new primary supplier contract to a competitor.

The applicant alleged that the respondents engaged in bid repair and breached their duty of fairness by allowing the competitor to delay the implementation of services and assisting them with regulatory approvals post-award.

The court dismissed the application, finding that the duty of fairness to unsuccessful bidders ended once the contract was awarded, and that the post-award communications were operational in nature and did not constitute bid repair.

The court also rejected the argument that the respondents had irrevocably elected the applicant as the primary supplier by utilizing their services during the transition period.

The plaintiff, Robert Drynan, brought a motion to approve a third-party litigation funding agreement in a class action against Bausch Health Companies Inc. and related entities, alleging misleading marketing of COLD-FX® products.

The court addressed the defendants' objections concerning security for costs, litigation autonomy, overcompensation, and access to justice.

After amendments to the funding agreement to cap recovery for the funder and class counsel at 33.3% of proceeds and defer court approval for certain expenses, the court approved the agreement, finding it fair, reasonable, and conducive to access to justice, while protecting the defendants' interests.

The plaintiff killed his son while experiencing a psychotic episode allegedly caused by the antidepressant Paxil, manufactured by the defendant.

He was found not criminally responsible and was under the jurisdiction of the Ontario Review Board until receiving an absolute discharge in December 2009.

He commenced an action against the defendant in October 2011.

The defendant moved for summary judgment, arguing the action was statute-barred.

The motion judge dismissed the motion, finding the plaintiff lacked the psychological capacity to sue until his absolute discharge.

The Court of Appeal allowed the appeal, finding the motion judge materially misapprehended the evidence.

Exercising its fact-finding powers, the Court concluded the plaintiff failed to rebut the presumption of capacity under s. 7(2) of the Limitations Act, 2002, as he had demonstrated the ability to instruct counsel, manage affairs, and understand the litigation process well before his discharge.

The action was dismissed as statute-barred.

The plaintiffs brought motions for approval of a settlement, class counsel fees, and representative plaintiff honoraria in two class actions concerning defective Takata airbags installed in Mazda, Subaru, and Toyota vehicles.

The settlement provides for an outreach program, out-of-pocket expenses reimbursement, and a customer support program.

The court found the settlement to be fair, reasonable, and in the best interests of the class.

The court also approved class counsel fees of up to $5,850,000 and an honorarium of up to $19,167 to be split among the representative plaintiffs.

The plaintiffs brought an action against GlaxoSmithKline following the sudden and unexplained death of their five-year-old daughter, who died five days after receiving the H1N1 vaccine (Arepanrix).

The plaintiffs alleged that the manufacturer breached its standard of care by failing to adequately test the vaccine and failing to warn of its risks, and that the vaccine caused the child's death.

The court dismissed the action, finding no expert evidence to establish a breach of the standard of care regarding the vaccine's testing, approval, or disclosure of risks.

Furthermore, the court rejected the plaintiffs' expert evidence on causation, relying instead on the forensic pathologist and epidemiological experts who concluded there was no evidence linking the vaccine to the child's death.

The defendant, Toronto Hydro Corporation, brought a motion to dismiss or stay the action due to the plaintiffs' failure to pay approximately $45,000 in interlocutory costs orders.

The court, balancing the interests of allowing a litigant their day in court and enforcing court orders, granted the plaintiffs a final opportunity to comply with the outstanding costs orders.

The action was stayed, and the plaintiffs were ordered to pay the costs in six equal monthly installments, with leave for the defendant to seek dismissal if payments default.

The applicants sought the appointment of an Inspector to investigate several corporations, including a not-for-profit foundation, under the OBCA and CNPCA.

The respondents moved to strike the appointment regarding the foundation, arguing the applicants lacked standing.

The court found the foundation was an affiliate of the OBCA corporations and that the applicants were debt obligation holders under the CNPCA, dismissing the motion to strike.

The media sought to lift a publication ban on the proceedings and the Inspector's reports.

The court lifted the ban on the proceedings but ordered the Inspector to edit its reports to remove conclusions of wrongdoing before they could be published.

Investors brought an application seeking the appointment and confirmation of an inspector to investigate several corporations involved in investment development projects.

An interim order had already appointed an inspector ex parte and required service of the application on the respondents.

At the return hearing, the inspector sought confirmation of the appointment, expanded investigative authority including examinations of additional individuals, and a non‑publication order for investigative reports.

The respondents requested an adjournment to file responding materials and raised jurisdictional issues concerning whether a charitable foundation governed by federal not‑for‑profit legislation could be subject to the inspection.

The court adjourned the application, continued most provisions of the interim order, authorized examinations of specified individuals, and granted a temporary non‑publication order regarding the inspector’s reports.