Malcolm N. Ruby

This decision concerns a class action brought by victims and families of the 2018 Danforth Avenue shooting against Smith & Wesson Corp., alleging negligence for failing to implement authorized user technology in its handguns.

The Court of Appeal for Ontario held that the plaintiffs’ negligence claim should proceed as a class action, finding that the claim disclosed a reasonable cause of action and that the certification judge erred by applying a merits-based test at the certification stage.

The court struck the strict liability and public nuisance claims, holding that Canadian law does not recognize such claims against product manufacturers in these circumstances.

This addendum to a costs decision addresses two requested corrections: one regarding a consent order on costs for a motion to be in the cause of the certification motion, and another clarifying the actual amount of partial indemnity costs requested by the plaintiffs.

The court acknowledged the factual corrections but affirmed that these changes do not alter the original exercise of discretion regarding costs.

This appeal arose from the dismissal of a class proceeding claiming damages against the Crown for negligence related to the presence of Bovine Spongiform Encephalopathy (BSE) in Canada between 2003 and 2008.

The trial judge dismissed the claim, finding it barred by section 9 of the Crown Liability and Proceedings Act, and also that no duty of care was owed and no negligence occurred.

The Court of Appeal upheld the dismissal, focusing solely on the application of section 9.

It found that various government programs providing financial assistance to cattle farmers in response to the BSE outbreak constituted "compensation" under section 9, thereby barring the negligence claim as it sought double recovery for the same factual basis of loss.

The plaintiffs in a proposed class action brought two motions: one seeking leave to file third and fourth supplementary affidavits from an expert, Dr. Jooyoung Lee, and another compelling the defendant, Smith & Wesson Corp., to provide answers and documents from a cross-examination.

The court dismissed both motions, finding that the supplementary affidavits were not relevant to the certification criteria and that the requested discovery questions were primarily merits inquiries or fishing expeditions, disproportionate to the needs of the certification motion.

The plaintiff brought a class action on behalf of Canadian cattle farmers against the Government of Canada, alleging negligence in its response to the threat of Bovine Spongiform Encephalopathy (BSE), commonly known as 'mad cow disease'.

The plaintiff claimed that Canada failed to implement a ruminant-to-ruminant feed ban in a timely manner and failed to prevent cattle imported from the United Kingdom from entering the animal feed chain, which led to the discovery of a BSE-infected Canadian cow in May 2003 and the subsequent closure of international borders to Canadian cattle and beef.

The court dismissed the action, finding that the claim was barred by section 9 of the Crown Liability and Proceedings Act because the class members had received compensation through various government financial assistance programs.

Furthermore, the court held that Canada did not owe a private law duty of care to the cattle farmers and that its policy decisions regarding the monitoring of imported cattle and the timing of the feed ban were reasonable and did not breach the standard of care.

During a common issues trial concerning the impact of Bovine Spongiform Encephalopathy (BSE) on Canadian farmers, the plaintiff sought to admit the affidavit and cross-examination transcript of a deceased witness, Mr. Mel McCrea.

The defendant, the Attorney General of Canada, objected on the basis of necessity, arguing that other witnesses could provide similar information.

The court applied the principled exception to the hearsay rule, finding that Mr. McCrea's evidence met both the necessity and reliability thresholds.

The court emphasized the unique nature of Mr. McCrea's first-hand account regarding the first Canadian-born BSE-diagnosed cow and the prior cross-examination, ruling the evidence admissible.

This ruling addresses a hearsay objection raised by the defendant during a common issues trial concerning the 2003 Bovine Spongiform Encephalopathy (BSE) outbreak.

The defendant sought to strike out several paragraphs from the affidavit of Lawrence Sears, the plaintiff's principal, arguing they contained inadmissible hearsay.

The court dismissed the objection, finding that the statements in the affidavit were based on Mr. Sears' personal knowledge, experience, and observations, and thus were not hearsay.

The judge emphasized that the evidence could be tested through cross-examination.

This ruling addresses the admissibility of the plaintiff's expert reports as evidence-in-chief in a complex common issues trial concerning the Bovine Spongiform Encephalopathy (BSE) outbreak.

The defendant objected to the hybrid trial process, arguing that expert evidence should be presented viva voce rather than through reports.

The court dismissed the defendant's objection, affirming the trial judge's discretion to admit expert reports as direct evidence in non-jury hybrid trials, consistent with prior case management orders.

The decision emphasized that this approach enhances trial efficiency and does not prejudice the opposing party's right to cross-examination.

The plaintiff in a certified class action regarding the federal government's response to the Mad Cow Disease outbreak brought a motion under the Interprovincial Summonses Act to compel the attendance of the former federal Minister of Agriculture, Ralph Goodale, as a witness at trial.

The court dismissed the motion, finding that while the proposed witness's evidence would be relevant, it was neither necessary nor essential to the administration of justice.

The plaintiff already had copious documentary and oral discovery, and the federal government planned to call sixteen civil servants from Agriculture Canada at trial.

The representative plaintiff in a certified class action regarding the introduction of Mad Cow Disease into Canada brought a motion for approval of a third-party litigation funding agreement.

The court applied the four-factor test for approving such agreements and found that the funding was necessary for access to justice, made a meaningful contribution, protected the defendant's interests, and did not overcompensate the funder.

The court approved the agreement and pre-approved the funder's return of up to 10 percent of any recovery.

Following certification of a proposed class proceeding concerning a medical product, the court determined the appropriate costs award for the certification motion and a related motion to strike an affidavit.

The court considered the factors in Rule 57.01 of the Rules of Civil Procedure and s. 31 of the Class Proceedings Act, 1992.

Although the plaintiffs were successful in obtaining certification, the evidentiary record and legal issues were relatively modest and the defendants made timely concessions that narrowed the scope of the dispute.

The court concluded that a conservative costs award was appropriate and reduced the plaintiffs’ claimed fees to a reasonable partial indemnity level.

The defendants were awarded costs for their successful motion to strike, which were offset against the certification costs.

An appeal was brought from orders of a Master concerning discovery-related procedural matters and a subsequent costs award in protracted estate litigation.

The appellant, self-represented, challenged the Master's rulings but filed no factum.

The court applied the standard of review applicable to a Master’s decision, requiring an error of law, misapplication of legal principles, or a palpable and overriding error in the assessment of evidence.

After reviewing the extensive reasons of the Master, the court found no such errors.

The appeal was dismissed and the prior costs order confirmed.