Robin Deryck Linley

This decision addresses motions for summary judgment in three related product liability actions concerning polypropylene mesh used in hernia repair surgeries.

The plaintiffs, having suffered complications and undergone further surgeries, sued the manufacturer years after the expiry of the basic two-year limitation period.

The court found that the plaintiffs failed to demonstrate that their claims were not reasonably discoverable within the limitation period, emphasizing the requirement of reasonable diligence and the inability to rely on a "eureka moment" or the discovery of a law firm's list to toll the limitation period.

All three actions were dismissed as statute-barred.

This decision concerns the costs arising from an application to enforce Letters Rogatory in a class action context.

The Applicants sought production of source code and deposition from Modiface Inc., a non-party to the underlying U.S. litigation.

The court ordered Modiface to provide compiled and obfuscated code and to submit to deposition, but limited the scope of production.

The decision addresses the appropriate quantum and basis for costs, ultimately awarding $150,000 all-inclusive to the Respondent, balancing the principles of indemnity, proportionality, and reasonableness.

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 Applicants sought to enforce Letters Rogatory from an Illinois court to compel ModiFace Inc., a Canadian non-party, to produce its un-obfuscated source code and provide deposition testimony in a class action against Amazon.

ModiFace resisted, arguing the request was too broad, unnecessary, and contrary to public policy due to the proprietary nature of its source code.

The court, applying Canadian principles of comity and public policy, denied the request for un-obfuscated source code, finding it not relevant, necessary, or otherwise obtainable under Ontario law, and that its production would be unduly burdensome and contrary to public policy.

The court ordered ModiFace to produce compiled and obfuscated code and submit to a deposition with specific procedural protections under Ontario rules.

The plaintiffs brought a motion under Rule 32 of the Rules of Civil Procedure seeking approval for a protocol for destructive testing of a medical device (Stryker Trevo Stent Retriever) that fractured during a medical procedure, leaving a portion in the plaintiff Evelyn Logan's brain.

Both the plaintiffs and the defendant Stryker Canada Corp. agreed on the necessity of testing but disputed the specific method, scope, and costs.

The court found the destructive testing of the "Critical Portion" of the device to be necessary and useful for determining the cause of failure.

While the plaintiffs' proposed protocol was deemed too vague, the court adopted a modified version of Stryker's proposed protocol, balancing the need for testing with the potential prejudice to Stryker.

The court ordered the plaintiffs to bear the cost of the testing and an Exemplar Device, and established a phased testing approach, including preliminary testing on an Extra Wire and an Exemplar Device before proceeding with the Critical Portion, with provisions for Stryker to observe and object to the final method.

No costs were awarded due to divided success.

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 appellant, a real estate development company, appealed a summary judgment dismissing its action against the respondents regarding a request for proposals for the redevelopment of Toronto waterfront property.

The appellant's proposal was disqualified for listing an ineligible person as an advisor.

When the appellant requested reconsideration, the sponsors declined to rescind the disqualification.

The appellant argued the sponsors owed a duty of fairness in the reconsideration process and that the fairness monitor was inadequately involved.

The Court of Appeal dismissed the appeal, finding no unfairness in the reconsideration process on a factual basis, without deciding the legal question of whether a duty of fairness was owed.

The plaintiff, CG Acquisition Inc., commenced an action against P1 Consulting Inc., Ontario Infrastructure and Lands Corporation (IO), and the Liquor Control Board of Ontario (LCBO) after being disqualified from a Request for Proposal (RFP) process.

The defendants brought motions for summary judgment to dismiss CG's claim, which was framed in tort, alleging breach of a common law duty of fairness and negligent investigation/service provision during the reconsideration of its disqualification.

The court granted summary judgment, finding no freestanding duty of fairness or care owed to a non-compliant bidder, and that the defendants' actions during reconsideration were reasonable and protected by a limitation of liability clause in the RFP.

Kaymar Rehabilitation Inc. appealed the dismissal of its action against Champlain Community Care Access Centre regarding a 2003 request for proposals for therapy services.

Kaymar challenged the trial judge's interpretation of the RFP documents, arguing that Champlain improperly allowed bidders without therapy services experience to qualify by accepting "professional services" as equivalent experience.

The Court of Appeal upheld the trial judge's interpretation, finding that the RFP documents clearly permitted such equivalents and that Kaymar had accepted these terms by bidding.

The court also addressed the costs award, reducing it from $1,864,000 to $1,675,000 on a partial indemnity basis.

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.

Competing applications were brought concerning whether a contractual dispute arising from the termination of an agreement to design and build a diabetes registry should proceed by arbitration or litigation.

One party sought appointment of an arbitrator pursuant to the dispute resolution clause in the agreement, while the other sought to have the dispute determined through litigation in the Superior Court and consolidated with related defamation proceedings.

Before hearing the applications, the court proposed procedural options, and the parties agreed to proceed with litigation in the Superior Court under case management with an expedited trial schedule.

The applications were adjourned to a case conference to establish a litigation plan, and related defamation actions were transferred to the Commercial List for coordinated management.

Competing applications were brought concerning whether a contractual dispute arising from the termination of an agreement to design and build a diabetes registry should proceed by arbitration or litigation.

One party sought appointment of an arbitrator pursuant to the dispute resolution clause in the agreement, while the other sought to have the dispute determined through litigation in the Superior Court and consolidated with related defamation proceedings.

Before hearing the applications, the court proposed procedural options, and the parties agreed to proceed with litigation in the Superior Court under case management with an expedited trial schedule.

The applications were adjourned to a case conference to establish a litigation plan, and related defamation actions were transferred to the Commercial List for coordinated management.