Peter J. Pliszka

The Court of Appeal for Ontario considered appeals and cross-appeals from a certification decision in a proposed class action regarding alleged defects in BMW vehicles equipped with N20 engines.

The court found that the certification judge erred in certifying causes of action for negligent design/manufacturing resulting in repair costs and in defining the class to include persons who incurred such costs.

The court held that neither of the proposed representative plaintiffs had a valid cause of action and set aside the certification order.

The appellants, pharmaceutical manufacturers and distributors of opioid products, challenged the constitutional validity of s. 11 of British Columbia's Opioid Damages and Health Care Costs Recovery Act, which authorizes British Columbia to act as representative plaintiff in a class action on behalf of all federal, provincial, and territorial governments in Canada unless they opt out.

The majority held that s. 11 is intra vires, characterizing its pith and substance as a procedural mechanism under s. 92(14) of the Constitution Act, 1867 (Administration of Justice in the Province) that facilitates intergovernmental cooperation without creating or altering substantive rights.

The majority further found that s. 11 maintains a meaningful connection to British Columbia and respects the legislative sovereignty of other governments.

Côté J. dissented, finding that the pith and substance of s. 11 engages and derogates from property and civil rights of extra-provincial governments under s. 92(13), that no meaningful connection exists, and that ss. 11(1)(b) and (2) should be severed as ultra vires.

The Court of Appeal for Ontario considered an appeal and cross-appeal, along with motions to quash.

The parties agreed that the appeal and cross-appeal were sufficiently interrelated to be heard together to avoid duplication and ensure consistency.

Consequently, the court, on consent, dismissed both motions to quash without costs, ordering the consolidated appeal and cross-appeal to proceed.

The appellants sought to certify a class proceeding against pharmaceutical companies for negligently manufacturing valsartan, alleging contamination with NDMA and NDEA, which are potential carcinogens.

The claim was for damages related to an increased risk of cancer, costs of medical services and monitoring, refunds for drugs, and psychological damages.

The motion judge dismissed the certification, finding no viable cause of action based on concrete injury.

The Court of Appeal dismissed the appeal, affirming that claims for genotoxic injury (molecular changes without perceptible effect), psychological harm (not meeting the 'serious and prolonged' or 'ordinary fortitude' thresholds), and pure economic loss (as the product was discarded and not imminently dangerous) were not compensable in tort.

The court also upheld the dismissal of claims for battery, consumer protection breaches, Competition Act breaches, and unjust enrichment, concluding that the pleadings did not disclose viable causes of action or meet commonality criteria for certification.

This appeal concerned a motion judge's order regarding a class action.

The core issues were whether a discontinued cause of action and defendants could be added to an existing class action (the Martin action) and whether that action would then be governed by the old Class Proceedings Act, 1992, or the amended Act.

The motion judge had ordered the "recast" Martin action to proceed under the amended Act and denied leave to add a party (MicroPort Orthopedics Inc.) based on limitations.

The Court of Appeal found that the motion judge erred in ordering the Martin action to be governed by the amended Act, as Section 39 of the amended Act clearly dictates that actions commenced before October 1, 2020, remain under the old Act.

The court also found an error in dismissing the motion to add MicroPort Orthopedics Inc. based on the Limitations Act, stating that limitation periods are typically individual issues in class actions.

The appeal and cross-appeal were allowed in part, clarifying that the Martin action continues under the old Act, and a re-filed Rowland action (including MicroPort Orthopedics Inc.) would proceed under the amended Act.

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.

This is a motion to discontinue a proposed class action concerning automobile airbags that had been recalled.

The action, which had not been certified, sought compensation for pure economic loss.

Due to developments in case law, particularly the Supreme Court of Canada's clarification on pure economic loss for defective products, the litigation risk increased, and the prospects for certification and substantial economic recovery diminished.

Class Counsel sought leave to discontinue the action with prejudice and without costs.

The court granted the motion, finding that the action was commenced for a proper purpose, the test for discontinuance was satisfied, and putative class members were not prejudiced, as limitation periods remained suspended.

This is a class action certification motion concerning allegedly defective N20 engines in BMW vehicles.

The plaintiffs sought to certify a class of owners/lessees of BMW vehicles with these engines, alleging design and/or manufacturing defects causing sudden loss of power.

The court analyzed the five certification criteria under the Class Proceedings Act, 1992.

While a cause of action in negligence was found, it was significantly narrowed to exclude claims for pure economic loss, limiting recovery to repair costs for actual damage or to avert imminent damage.

The proposed class definition was also narrowed to include only those who incurred such repair expenses by the judgment date.

One of the two proposed representative plaintiffs was deemed unsuitable as she had no recoverable loss.

The motion for certification was granted, but with substantial limitations on the scope of the class and the recoverable damages, and with only one representative plaintiff.

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.

This endorsement addresses the quantum of costs following the Plaintiffs' successful certification motion in a class action.

The court, while acknowledging the Plaintiffs' entitlement to costs on a partial indemnity scale, disallowed a claim for nearly $20,000 in docketed time spent on preparing the costs submissions themselves, deeming it novel and not to be encouraged.

The court rejected the Defendants' argument that the Plaintiffs' fees were too high, noting that both sides invested similar hours and the difference in dollar amounts reflected firm structure rather than overwork.

The Plaintiffs were awarded all-inclusive costs of $496,000.

The plaintiffs sought to certify a class action against the defendant pharmaceutical companies for manufacturing and distributing valsartan contaminated with NDMA and NDEA, which are probable human carcinogens.

The plaintiffs claimed damages for psychological harm and pure economic losses (medical bills, medical monitoring, refunds, and wasted pills) arising from the increased risk of being diagnosed with cancer, but explicitly did not claim damages for actually developing cancer.

The court dismissed the certification motion, finding that the law does not recognize a cause of action for the mere creation of risk or for pure economic loss from shoddy but not imminently dangerous goods, and therefore the claims failed to satisfy the cause of action, common issues, and preferable procedure criteria.

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 Plaintiffs brought a motion to amend their Statement of Claim and for partial certification of a proposed national class action concerning BIOCELL textured breast implants.

The amendments sought to add representative plaintiffs from parallel actions and reorganize the claim.

One defendant, Allergan Inc., consented to both the pleading amendments and the partial certification of a defined class and six common issues, including product defect, duty to warn, and consumer protection breaches.

The court granted the amendments and partial certification against Allergan Inc., finding that the proposed class and common issues met the criteria under the Class Proceedings Act, 1992.

The balance of the certification motion against the other defendants was adjourned.

The plaintiffs sought judicial approval of a $25 million settlement in two pharmaceutical class actions alleging that the diabetes drug PIO caused bladder cancer and that the defendants failed to warn of this risk.

The court initially raised concerns about the settlement amount compared to a $2.4 billion U.S. settlement, but approved it after class counsel provided evidence of recent scientific studies undermining causation and differences in market size and litigation risk.

The court also approved class counsel's 30% contingency fee and awarded a reduced honorarium of $1,500 to each representative plaintiff.

The plaintiff, having successfully certified a class action against BMW, sought substantial indemnity costs for the certification motion, totaling $367,210.28.

BMW proposed a costs award between $225,000 and $285,000.

The court awarded the plaintiff $300,000 on a partial indemnity basis, inclusive of fees, disbursements, and HST.

The court declined to award substantial indemnity costs, finding that Rule 49 (Offer to Settle) is an ill fit for certification motions and that defendants are entitled to resist certification without incurring punitive costs, provided their conduct does not unnecessarily lengthen proceedings.

The court also largely rejected BMW's arguments of overbilling by class counsel.

This initial case conference in a proposed class action concerning allegedly defective breast implants addressed procedural coordination across multiple jurisdictions and the establishment of a certification motion schedule.

The court set a detailed schedule for the Ontario certification motion, including deadlines for records and cross-examinations, with the hearing scheduled for December 2021.

The court declined to mandate an immediate multi-jurisdictional case conference, emphasizing that inter-plaintiff counsel agreement is the primary mechanism for resolving overlapping claims.

Additionally, the court directed plaintiffs to ensure proper service on unserved foreign defendants to prevent delays.

The plaintiff brought a motion to certify a class action against the defendants regarding alleged defects in the power steering systems of certain Mini Cooper vehicles.

The plaintiff alleged the defects could cause a dangerous loss of power steering or a vehicle fire.

The defendants admitted the power steering system was defective but denied it posed an unreasonable safety risk or caused fires.

The court found that the plaintiff had pleaded a viable cause of action in negligence and met the 'some basis in fact' standard for the remaining certification criteria, including an identifiable class, common issues, preferable procedure, and representative plaintiff.

The certification motion was granted.

The defendants sought costs following their success on two interlocutory motions in a proposed class action: the dismissal of the plaintiff's motion for document production and the granting of the defendants' motion to strike inadmissible affidavit evidence.

The plaintiff argued for a significantly reduced costs award, citing divided success and the novelty of the production issue.

The court rejected the plaintiff's arguments, finding no divided success and that the defendants' costs were reasonable and proportionate.

Costs were fixed at $35,000 all inclusive, payable to the defendants in any event of the certification motion.

The defendants in a proposed class action regarding allegedly defective power steering in MINI Cooper vehicles brought a preliminary motion to strike portions of an affidavit filed by the plaintiff for the certification motion.

The impugned evidence consisted of charts compiling consumer complaints from a US regulatory database.

The court granted the motion, finding the evidence to be inadmissible multiple-level hearsay.

The court held that even on the lower 'some basis in fact' standard applicable to certification motions, evidence must meet usual admissibility criteria, and the prejudicial effect of the 400 pages of complaints outweighed any probative value.