Leah Kelley

The appellant railway company appealed a partial summary judgment dismissing its claims for ongoing coal tar contamination as an abuse of process.

The appellant had previously commenced an action in 1989 for historical and continuing coal tar migration, which was dismissed for inordinate delay and failure to preserve evidence.

The appellant commenced a new action in 2014 claiming damages for continuing migration since 2012.

The Court of Appeal dismissed the appeal, holding that the continuing tort claims were exhausted by the dismissal of the 1989 action, and allowing the 2014 action to proceed would undermine finality and bring the administration of justice into disrepute.

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.

The court granted summary judgment dismissing Canadian National Railway Company's claims relating to coal tar contamination as an abuse of process, since those claims had already been dismissed in 2014 due to inordinate delay and failure to preserve evidence.

The court found that the same fairness concerns that prevented a fair trial in 2014 persisted.

However, the court allowed CN's claims regarding benzene contamination to proceed, finding that these claims did not crystallize until 2014 and were not part of the earlier action.

The decision clarifies the application of res judicata and abuse of process in the context of environmental contamination and continuing torts.

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.

Grand River Enterprises Six Nations Ltd. (GRE) appealed an order from the Superior Court of Justice requiring it, as a non-party, to produce financial documents for the valuation of shares held by a deceased in estates litigation.

The Court of Appeal dismissed the appeal, affirming the motions judge's discretionary decision.

The court found the documents relevant to the estate's valuation and the validity of the deceased's will, and that it would be unfair to proceed to trial without them.

The Court of Appeal upheld the motions judge's application of the Rule 30.10 test, emphasizing deference to the lower court's discretion and the effectiveness of the established Confidentiality Protocol in addressing GRE's concerns about privacy and business interests.