Gordon McKee

This motion concerned the approval of a proposed settlement and counsel fees in a national class action against pharmaceutical companies.

The class action alleged that the atypical antipsychotic medications ABILIFY and ABILIFY MAINTENA caused various compulsive behaviours due to inadequate warnings.

The court approved a $14.75 million settlement fund, which includes compensation for class members suffering psychological harm, residual catastrophic injury, and financial loss, as well as honoraria for representative plaintiffs and class counsel fees.

The court found the settlement to be fair and reasonable, falling within the 'zone of reasonableness' despite objections from some class members regarding compensation adequacy and counsel fees.

The plaintiff brought a proposed class action against numerous pharmaceutical manufacturers and distributors regarding the marketing and sale of opioids in Canada.

The defendants moved to strike the statement of claim for failing to disclose a reasonable cause of action, and one defendant, Pro Doc Limitée, moved to dismiss the action against it for lack of jurisdiction.

The court granted Pro Doc's jurisdiction motion, finding no real and substantial connection to Ontario.

The court struck the claims against the distributor defendants without leave to amend, finding no viable cause of action.

The court found that while there were viable causes of action against the manufacturer defendants for breach of the Competition Act, negligent misrepresentation, fraudulent misrepresentation, and failure to warn, the plaintiff's pleading was defective.

The court struck the claims against the manufacturer defendants with leave to amend to join representative plaintiffs for each defendant group and to comply with the rules of pleading.

LTL Management LLC, acting as Foreign Representative, brought a motion seeking recognition of a U.S. Bankruptcy Court's dismissal order of its Chapter 11 proceeding, termination of the Canadian CCAA proceeding, discharge of the Information Officer (Ernst & Young) with a release, and approval of the Information Officer's activities and fees.

The motion was unopposed.

The court granted the requested relief, finding that with the foreign main proceeding dismissed and no stay of the appeal, there was no longer a basis for the Canadian recognition proceeding to continue.

The Information Officer's reports, activities, and fees were reviewed and approved, and the CCAA proceeding was terminated.

The plaintiff, Dr. Darryl Gebien, sought court approval for a Third-Party Funding Agreement with Omni Bridgeway Ltd. for a proposed class action against numerous pharmaceutical companies regarding the opioid crisis.

Several defendants objected to specific provisions of the agreement, including those related to amendments, assignments, attornment, costs enforcement, termination procedures, accrued costs, and confidentiality.

The court found that while the agreement generally met the requirements for approval, several of the defendants' objections, particularly concerning comprehensive attornment by Omni Bridgeway Ltd. and the broad confidentiality provisions, were "genuinely meaningful" and required resolution.

The motion for approval was adjourned to allow the parties to address these issues, with the court emphasizing that it is not its role to draft the agreement.

The plaintiffs brought a motion for court approval to discontinue a proposed products liability class action concerning 'Physiomesh', a surgical mesh manufactured by the defendants.

The discontinuance was sought to implement a settlement scheme for individual claims.

The court found that the discontinuance was not brought for an improper purpose and would not prejudice putative class members, as the limitation period suspension would continue for 90 days after notice.

The court approved the discontinuance, finding it beneficial for settling claimants and in their best interests.

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 sought approval of a national class action settlement regarding defective Caterpillar engines, along with approval of class counsel fees and representative plaintiff honoraria.

The settlement established an $8,000,000 escrow fund to compensate class members across Canada, excluding Quebec, where a parallel proceeding was settled.

The court found the settlement fair and reasonable, approved the $2.4 million counsel fee as proportionate to the risk and effort, and granted a $10,000 honorarium to both the Ontario and Quebec representative plaintiffs.

The defendants in a proposed national class action regarding baby powder and ovarian cancer requested that their motion to dismiss or stay the action for delay or abuse of process be heard before the plaintiffs' certification motion.

The defendants argued that the Ontario action was duplicative of parallel class actions in other provinces and had languished for over five years.

The court applied the Cannon factors and determined that the stay/dismissal motion should be heard simultaneously with the certification motion, as doing so would promote judicial economy and allow the court to better assess the preferable procedure and multi-jurisdictional issues.

The plaintiffs brought a motion for approval of a $15.5 million settlement in a class action concerning defective metal-on-metal hip implants.

The settlement provides compensation for class members who underwent premature revision surgery, medically precluded claimants, and family members with derivative claims.

The court approved the settlement as fair and reasonable, noting it compares favourably to similar settlements in other jurisdictions.

The court also approved class counsel's 30% contingency fee and awarded $10,000 honoraria to the lead representative plaintiffs for their extensive contributions over 11 years of litigation.

The Plaintiffs sought costs after successfully certifying a class action and dismissing a stay motion.

The court awarded the Plaintiffs $700,000 in all-inclusive costs, comprising $366,149.88 in disbursements and $333,850.12 in fees.

The court emphasized the discretionary nature of costs, the importance of certification motions in class actions, and the need for unsuccessful parties to provide their own bills of costs for comparison.

A portion of the costs ($30,000) was specifically allocated to two defendants (Bristol-Myers and Otsuka) for the stay motion, which the third defendant (Lundbeck) did not participate in.

The plaintiffs brought a motion to discontinue a proposed class action regarding transvaginal mesh implants manufactured by the defendants.

The parties reached a settlement agreement that resolves the claims of many putative class members and provides a process for others to participate or pursue individual claims.

The court approved the discontinuance, finding that it was beneficial to settling class members and did not prejudice the remaining putative class members.

The court also approved the payment of $1,085,000 in costs to class counsel.

The plaintiffs brought a motion to certify a class action against the manufacturers and marketers of the antipsychotic drugs Abilify and Abilify Maintena, alleging negligence, failure to warn, and conspiracy regarding the risk of impulse control disorders.

The defendants opposed certification and brought a motion to stay the proceeding as an abuse of process, citing a parallel authorized class action in Québec.

The court found that the plaintiffs met all the criteria for certification under section 5(1) of the Class Proceedings Act, including establishing a plausible methodology for proving general causation.

The court dismissed the defendants' stay motion, finding that the Ontario action was not an abuse of process despite the last-minute amendments to the Québec claim that mirrored the Ontario pleading.

The appellant appealed a summary judgment order dismissing a motor vehicle negligence claim.

The motion judge found that the appellant made a left-hand turn facing a yellow light in front of an oncoming truck driven by the respondent, who did not run a red light as alleged.

The motion judge concluded there was no genuine issue requiring a trial regarding the respondent's responsibility for the accident.

The appellant argued the motion judge reversed the evidentiary burden and erred in granting summary judgment.

The Court of Appeal upheld the summary judgment, finding the motion judge correctly applied the burden of proof and the appellant failed to meet the onus that shifted to her to demonstrate contributory negligence.

Following a motion regarding the pre-certification production of medical records where the responding party (plaintiffs) was largely successful, the parties submitted costs submissions.

The plaintiffs sought $13,368 on a partial indemnity basis, while the defendants argued for costs in the cause or a maximum of $3,500.

The court found the plaintiffs were entitled to partial indemnity costs but reduced the claimed amount to comply with the Rules Committee's Grid for hourly rates and to account for excessive disbursement claims.

Recognizing the plaintiffs were largely but not entirely successful, the court fixed costs at $6,800 all-inclusive.

In a proposed pharmaceutical class proceeding alleging that anti-psychotic medications caused gynecomastia and that the defendants failed to warn of that risk, the moving defendants sought pre-certification production of broad medical and pharmacy records for five affiants.

The court held that pre-certification medical production must be limited to records bearing on certification issues and rejected any request that effectively sought entire medical files.

It confirmed production of records relating to prescriptions, ingestion, development of gynecomastia, related risk or warning discussions, and related surgeries.

The court refused on the present record to compel further diagnosis and treatment records aimed at individual causation or vague assertions about commonality and preferability, but left the issue open for renewal on cross-examination.

In a certified class proceeding concerning allegedly defective hip implants, the court addressed issues relating to notice to class members and the identification of potential class members.

The court ordered the defendants to make reasonable efforts to locate names and addresses of implant class members contained in product adverse event reports and other related sources where the information was available and the province of residence was not British Columbia or Quebec.

However, the court declined to require an extensive manual internal review of all potential incident reports, finding such a requirement would be disproportionately burdensome and would not materially improve the notice program.

The court also determined the proper title for the certification notice and class counsel’s website, concluding that inclusion of the manufacturer’s name alongside the product identifier was reasonably necessary to inform the intended class.

Following certification of a proposed class action concerning recalled metal-on-metal hip implants, the court determined the appropriate costs award for the certification motion.

The plaintiffs, as the successful parties on certification, sought over $700,000 in partial indemnity costs.

The court found the claim grossly excessive due to over-lawyering, excessive hours, and hourly rates exceeding the applicable guideline ranges.

Applying Rule 57.01(1) of the Rules of Civil Procedure, guidance from appellate jurisprudence, and historical averages for certification motion costs awards, the court significantly reduced the claim.

The court emphasized transparency and predictability in costs awards and fixed costs at $175,000 all-inclusive payable forthwith.