Kate Crawford

The plaintiffs successfully resisted a summary judgment motion brought by the defendants in a test case.

The plaintiffs sought enhanced partial indemnity costs of $300,000, while the defendants argued for no costs due to divided success or deferral to the trial judge.

The court rejected the defendants' arguments, finding the plaintiffs were wholly successful in resisting the motion despite failing on a 'boomerang' summary judgment request.

The court awarded the plaintiffs partial indemnity costs of $235,768.86, finding the time spent and rates charged were reasonable given the complexity, importance, and high stakes of the test case.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

The defendants in a proposed opioid class action moved to dismiss the proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

In response, the plaintiff brought a cross-motion for a nunc pro tunc timetable order and commenced parallel proceedings in Manitoba.

The parties reached a settlement wherein the competing motions were dismissed without costs, the Manitoba proceedings would be discontinued, and the Ontario action would be deemed commenced on October 2, 2020, making it subject to the amended certification test under the Smarter and Stronger Justice Act, 2020.

The court approved the settlement and issued the consent orders.

The plaintiff brought a motion on consent for an order granting leave to discontinue the proposed class action without costs and without notice to putative class members.

The certification motion had previously been dismissed and the action continued as an individual action.

The court granted the motion, finding no prejudice to former proposed class members who had sufficient opportunity to bring their own claims, which were being case-managed together.

The appellants appealed a motion judge's decision declaring that the limitation period for putative class members remained suspended under s. 28(1) of the Class Proceedings Act following the denial of class certification.

The Court of Appeal dismissed the appeal, holding that s. 28(1) provides an exhaustive list of circumstances that resume a limitation period, and denial of certification is not among them.

Consequently, the limitation period remains suspended indefinitely following a denial of certification, a result the court noted must be addressed by the Legislature.

Following the dismissal of a motion to certify a class action regarding unreliable hair drug testing at the Motherisk Drug Testing Laboratory, the plaintiff brought a motion under s. 7 of the Class Proceedings Act, 1992 to continue her action and join approximately 200 co-plaintiffs.

The court held that the limitation periods for the putative class members remain suspended under s. 28 of the Act until the defendants successfully move to dismiss the proceeding without an adjudication on the merits.

The court also held that the test for joining co-plaintiffs under s. 7 is the same as the test under the Rules of Civil Procedure.

The motion to join the co-plaintiffs was dismissed without prejudice due to insufficient pleading of material facts.

The appellant appealed the dismissal of her motion to certify a class action against the Hospital for Sick Children and others regarding the systemic negligence of the Motherisk Drug Testing Laboratory.

The motions judge had found that a class proceeding was not the preferable procedure because resolving the common issues of systemic negligence would not significantly advance the individual class members' claims, which required highly individualized proof of causation and damages.

The Divisional Court dismissed the appeal, finding no error of law or palpable and overriding error in the motions judge's discretionary balancing of the preferable procedure factors.

The plaintiff moved to certify a proposed class action arising from allegedly unreliable Motherisk hair-strand drug and alcohol testing used in child protection, family, and criminal proceedings.

The court held that while the pleading disclosed a cause of action and there was evidence of a broad group of potentially affected persons, the proposed proceeding failed on common issues, preferable procedure, and representative plaintiff criteria.

The court found the alleged systemic negligence did not materially advance the class members' real claims because compensable harm depended on highly individualized proof that a particular test result was false and adversely influenced a particular proceeding.

The litigation plan for individual hearings was found unworkable and procedurally unfair.

Certification was refused.

The representative plaintiffs moved for approval of a $2.375 million settlement in a class action concerning the under-dosing of chemotherapy drugs at several hospitals.

The defendants, who supplied and administered the drugs, denied liability, arguing there was no evidence of clinical impact on patient outcomes and that the plaintiffs' psychological harm did not meet the legal threshold for a recognizable psychiatric illness.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class given the significant litigation risks, the lack of evidence showing clinical harm, and the recommendations of experienced class counsel.

The court also approved class counsel's requested fees of $400,000.

The plaintiffs commenced a medical negligence action alleging improper treatment at a hospital that preceded a stroke suffered by the main plaintiff.

The plaintiffs later sought court approval under Rule 7 to dismiss the action, including the claim of a minor plaintiff, asserting that they were unwilling to fund a necessary neurological expert opinion on causation.

The court scrutinized the request due to the involvement of a minor and the absence of sufficient evidence addressing the merits of the claim.

The judge emphasized that counsel undertaking professional negligence cases on a contingency fee basis must anticipate the risk of funding necessary expert evidence.

Although the court initially refused approval and sought further information, the prolonged inactivity and the plaintiff’s inability to fund expert evidence ultimately justified dismissal of the claim without costs.