Karin Sachar

This decision concerns a resumed certification motion for a proposed class action against Boston Scientific Ltd. and Boston Scientific Corporation regarding transvaginal mesh medical devices.

The plaintiffs, Susan and Darin Vester, alleged negligent design and failure to warn.

Following an initial adjournment due to a lack of common issues, new expert evidence was presented demonstrating a "some-basis-in-fact" for common issues related to the degradation of the polypropylene mesh (HGX-030-01) and the inadequacy of warnings in the Directions For Use (DFU).

The court found that the new evidence sufficiently identified a discrete defect common to all devices and a plausible medical theory of harm, satisfying the common issues and preferable procedure criteria.

The motion to certify the class action was granted.

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.

Following dismissal of an application alleging privacy breaches and misrepresentations relating to the transfer of insurance assets and insured persons’ information, the court determined the appropriate costs award.

The unsuccessful applicant argued that no costs should be awarded because the matter raised issues of public interest and the law regarding enforcement of privacy rights was uncertain.

The court rejected those submissions, noting the seriousness of the allegations and the prior finding that the proceeding constituted an abuse of process.

Considering the factors under Rule 57.01 of the Rules of Civil Procedure and the respondents’ reduced claim for costs, the court exercised its discretion to award a fixed amount.

Costs were ordered payable to the respondents.

A class action brought by automobile dealers challenged a manufacturer’s 2009 wind‑down agreements issued during the global financial crisis, alleging breaches of the statutory duty of fair dealing, disclosure obligations, and the right of association under franchise legislation.

The court held the manufacturer did not breach its contractual or statutory obligations in implementing the dealer reduction plan or issuing the agreements under urgent restructuring circumstances.

However, the law firm advising the dealer group was found to have breached fiduciary duties, contractual duties, and the standard of care by acting despite conflicts of interest and failing to properly advise the dealers during the restructuring process.

The court concluded that the lawyers’ misconduct deprived the dealers of a real opportunity to negotiate improved termination compensation.

Aggregate damages were therefore awarded for loss of that negotiation opportunity.

The moving parties (insurers) brought a motion to strike out an application seeking declaratory relief regarding alleged breaches of privacy and insurance legislation.

The responding party had commenced multiple other proceedings, including a tort claim, an accident benefits claim, and complaints to regulatory bodies.

The court granted the motion to strike, finding that the application was an abuse of process because declaratory relief would serve no practical purpose and the governing statutes provided their own mandatory procedures for resolving the disputes.

The representative plaintiff appealed an order of a Master dismissing a motion for production of communications between a distressed company and its financial advisor and between the company and government actors.

The court considered whether solicitor‑client privilege extended to communications with a financial advisor who might have served as a CCAA monitor, and whether common interest privilege protected communications with federal and provincial governments during restructuring negotiations.

The court held that the financial advisor’s role was integral to the legal advice provided and that the communications were subject to solicitor‑client privilege.

The court also upheld the Master’s finding that communications shared with governments during negotiations to secure restructuring funding were protected by common interest privilege.

Finding no palpable and overriding error in the Master’s factual determinations, the appeal was dismissed.

In a large commercial dispute arising from a subcontract on an SAP implementation project, the plaintiffs sought an order imposing a discovery plan and requiring further documentary production from the defendant.

The defendant had initially produced substantially fewer documents and later disclosed that thousands of additional documents from a project repository had not been produced due to inadvertence.

The court addressed the role of proportionality in electronic discovery under the Rules of Civil Procedure and emphasized that discovery must be proportionate to the issues and costs of the litigation.

The court ordered additional electronic searches and production from selected custodians and directed restoration and review of backup data using specified search parameters.

The defendant’s cross‑motion seeking reciprocal additional production from the plaintiffs was dismissed.