Malcolm Ruby

The plaintiffs sought to certify a class action against Smith & Wesson for design negligence following the Danforth Shooting, where a stolen M&P®40 handgun without "authorized user" (smart gun) technology was used to kill and injure multiple people.

The plaintiffs argued that Smith & Wesson was negligent in failing to incorporate authorized user technology into the handgun's design.

The court dismissed the certification motion, finding that the plaintiffs failed to satisfy the common issues and preferable procedure criteria.

Specifically, the plaintiffs did not provide expert evidence from a firearm design expert to establish some basis in fact that the absence of authorized user technology constituted a design defect, or that an alternative design was feasible without impairing the handgun's utility for its intended military and police users.

In a proposed class action against a firearm manufacturer for design negligence following a mass shooting, the defendant moved to strike portions of the plaintiffs' layperson affidavit evidence filed for the certification motion.

The impugned evidence included foreign patents for 'smart gun' technology and firearm-related crime statistics.

The court granted the motion to strike, finding that expert evidence in handgun design was required to establish some basis in fact for the design negligence claim, and a layperson could not provide the necessary factual logic or theory.

The court granted the plaintiffs leave to file additional expert evidence and rescheduled the certification motion.

During a class action trial regarding the federal government's alleged negligence in preventing mad cow disease, the defendant sought to read into evidence discovery transcripts from the current representative plaintiff, the deceased former representative plaintiff, and other class members.

The court denied the request to read in the current representative plaintiff's evidence, applying the rule in Browne v. Dunn, as the plaintiff had already testified and the evidence did not merely fill a gap.

The court also denied leave to read in the deceased former plaintiff's evidence under Rule 31.11(6) and (7), finding the excerpts to be of limited importance and lacking cross-examination.

However, the court permitted the defendant to read in discovery evidence from other class members, as it provided helpful real-world insight into the financial impact on different cattle producers.

During a common issues trial regarding the federal government's alleged negligence in preventing the spread of Bovine Spongiform Encephalopathy (mad cow disease), the plaintiff sought to admit eight foreign public records for the truth of their contents.

The defendant argued the documents should only be admitted to show the government's knowledge of them.

The court held that the documents, which included reports from the World Health Organization and the European Commission, met the criteria for the public documents exception under s. 25 of the Ontario Evidence Act and were admissible for the truth of their contents, though the court reserved judgment on the weight to be given to them.

The plaintiffs commenced a proposed class action against the manufacturer of a handgun used in a mass shooting, alleging negligent design, public nuisance, and strict liability for failing to incorporate authorized user ('smart gun') technology.

The defendant moved to strike the statement of claim under Rule 21 for disclosing no reasonable cause of action.

The court dismissed the motion regarding the negligence claim, finding it fell within the established duty of care categories for goods dangerous per se and products liability.

However, the court struck the claims for public nuisance and strict liability, concluding they were legally untenable in the context of product liability.

The parties in a class action jointly sought an adjournment of the trial commencement to allow time to finalize settlement discussions.

The court granted the adjournment, moving the trial start date from February 1, 2021, to February 16, 2021, noting that no further adjournments would be granted.

The defendants in a 15-year-old class action regarding the federal government's response to the mad cow disease crisis brought a motion to adjourn the peremptory trial date of January 18, 2021, to September 2021.

They cited difficulties preparing due to the COVID-19 pandemic and the late delivery of supplementary expert reports by the plaintiff.

The court dismissed the motion for a lengthy adjournment, finding that the parties were well-resourced to conduct a virtual trial and that the late expert reports were responsive to the defendants' own late productions.

The trial commencement was postponed by two weeks to February 1, 2021, to allow for the completion of remaining pre-trial steps.

Following earlier rulings quashing garnishment notices issued against diplomatic bank accounts of a foreign state, the court determined the appropriate costs award.

The proceedings involved complex and novel issues of diplomatic immunity, state immunity, and international law relating to enforcement of a judgment against a foreign state.

Although the foreign state was the successful party, the court declined to award substantial indemnity costs due to the absence of improper litigation conduct and the novelty of the issues.

A third‑party bank that participated extensively in the litigation was found not to be a necessary party and was denied costs.

The creditor was ordered to pay the foreign state partial indemnity costs fixed at $100,000 inclusive of disbursements and HST.

A judgment creditor sought to enforce an international arbitration award by garnishing bank accounts held by a foreign state’s embassy in Canada.

The foreign state moved to quash the notices of garnishment, asserting diplomatic immunity over the embassy accounts.

The court held that assurances from the ambassador created a strong presumption that the accounts were used for diplomatic purposes under customary international law and the Vienna Convention on Diplomatic Relations.

The creditor’s evidence, including payments of litigation costs and scholarship funds to students, did not demonstrate non‑diplomatic or commercial use sufficient to rebut the presumption.

The garnishment notices were therefore quashed and further enforcement against the accounts was prohibited.

The plaintiff brought an urgent motion under Rule 45.02 of the Rules of Civil Procedure seeking an order preserving a specific fund by requiring the defendants to pay into court the anticipated proceeds of sale of a commercial property, or a portion thereof, pending determination of outstanding damage claims arising from a failed closing under an agreement of purchase and sale.

The court reviewed the governing test requiring a proprietary claim to a reasonably identifiable fund, a serious issue to be tried, and a balance of convenience favouring the order.

The court held that the plaintiff’s claim was for unproven damages, including an alleged abatement of the purchase price and lost profits, rather than a proprietary interest in the sale proceeds.

As the plaintiff failed to establish a legal right to a specific fund as required by Rule 45.02, the motion was dismissed without consideration of the remaining elements of the test.

Following a damages inquiry in which the defendants were awarded damages including legal costs, the defendants sought additional partial indemnity costs for a prior recusal motion.

The court determined that the costs associated with the recusal motion had already been included in the damages award for legal costs following review of the defendants’ docketed accounts.

Because those costs were already compensated in the earlier award, they could not be recovered again.

The court therefore dismissed the belated request for additional costs and declined to award further costs for the present dispute.

The defendants sought over $100 million in damages following a damages inquiry ordered after the plaintiffs wrongfully obtained ex parte Mareva and Anton Piller orders that shut down the defendants' lottery telemarketing business.

The court found that most of the financial losses and lost business opportunities were caused by an American Temporary Restraining Order that pre-dated the ex parte orders, not the ex parte orders themselves.

However, the court awarded $250,000 for the loss of an opportunity to transition the business in an orderly fashion, $1,000 for a seized cell phone, and $703,576 for legal expenses incurred in setting aside the orders and participating in the inquiry, for a total award of $954,576.