Peter J. Pliszka

In a proposed class action regarding allegedly defective power steering in MINI Cooper vehicles, the plaintiff moved under Rule 30.04(2) of the Rules of Civil Procedure to inspect documents referenced in the defendants' statement of defence.

The defendants refused, arguing the requests were for non-specific documents and were premature given the pending certification motion.

The court dismissed the motion, holding that the right to inspect under Rule 30.04(2) is not absolute and the court retains discretion under Rule 30.04(5) to refuse production based on disproportionality and untimeliness.

The court found the plaintiff's request was an improper attempt to obtain pre-certification documentary discovery without showing relevance to the certification criteria.

The plaintiffs in a proposed class action brought a pre-certification pleadings motion to replace a representative plaintiff and add Scarsview Motors Ltd. as a defendant, intending to certify a defendant class of FCA dealers.

Scarsview resisted its addition, arguing prejudice and unsuitability as a representative.

The court granted the plaintiffs' motion, finding the causes of action against Scarsview properly pleaded and its addition necessary to preserve potential remedies related to implied warranties.

The court deferred Scarsview's affidavit evidence regarding prejudice and unsuitability to the certification stage, emphasizing that such issues are best addressed on a proper record at certification, not on a pleadings motion.

Costs were awarded to the plaintiffs.

The plaintiffs successfully opposed a motion by the Zimmer defendants to stay their action.

The court awarded the plaintiffs costs of $10,826.50 on a partial indemnity basis, payable "in any event of the cause," acknowledging the novelty and importance of the motion while deferring actual payment until the action's merits are determined.

The court approved a class action settlement concerning the Zimmer Durom Hip Implant, along with Class Counsel's fees and an honorarium for the Representative Plaintiff and a Class Member.

The settlement provides compensation for revised and medically precluded Class Members, with a claims-made structure and no cap on the defendants' liability.

The court found the settlement fair, reasonable, and in the best interests of the class, despite objections regarding the eligibility deadline for revision surgery.

The defendants, Zimmer GmbH, Zimmer, Inc., and Zimmer of Canada Limited (collectively "Zimmer"), moved for an order staying the individual action brought by the plaintiffs, Heather Ann Crider and Adrian Wilson, against them.

Zimmer argued that the plaintiffs were class members in overlapping medical products liability class actions (McSherry in Ontario and Jones in British Columbia) concerning the "Durom Cup" hip implant device manufactured by Zimmer, and thus their individual claims should be stayed or barred by res judicata.

The court found that while Ms. Crider technically remained a class member in the McSherry action due to compliance with the court-ordered notice plan, she had informally communicated her intent to opt out of the class action to class counsel prior to the opt-out deadline.

The court concluded that Ms. Crider should be permitted to opt out of the McSherry Action, preserving her litigation autonomy, and therefore dismissed Zimmer's motion for a stay.

The plaintiff sought certification of a products liability action concerning an allegedly defective hip implant as a class proceeding under the Class Proceedings Act, 1992.

The defendants consented to certification.

The court considered the statutory criteria under s. 5(1), including the existence of a cause of action, an identifiable class, common issues, preferability, and adequacy of the representative plaintiff.

The court noted parallel litigation in British Columbia concerning the same medical device and concluded that certification would protect the rights of class members who did not opt into the British Columbia action.

The court found all statutory criteria satisfied and certified the proceeding as a class action.

The moving defendant sought summary judgment dismissing a product liability action arising from a catastrophic motor vehicle accident in which the driver suffered quadriplegia after the driver’s seatback collapsed during a rollover.

The motion argued that the defendant seat assembler had no role in designing or manufacturing the allegedly defective recliner mechanism supplied by another manufacturer.

The court found that much of the evidence relied upon by the moving party was inadmissible, including transcripts from unrelated proceedings, discovery evidence of its own witness, and unsworn materials.

Applying the principles from Hryniak v. Mauldin, the court held that it lacked the necessary admissible evidence to make findings of fact or fairly resolve the dispute on a summary judgment motion.

The court declined to exercise expanded fact‑finding powers or conduct a mini‑trial, particularly given the presence of a jury notice and the possibility that negligence could be inferred from circumstantial evidence.

Following reasons dismissing a motion to stay or dismiss an action for lack of jurisdiction, the court addressed the quantum and scale of costs payable to the successful responding party.

The plaintiff sought substantial indemnity costs due to the complexity of a cross‑border employment dispute and the defendant’s attempt to pre‑empt Ontario proceedings with litigation in another jurisdiction.

The defendant argued costs should be limited to partial indemnity as the motion was reasonably brought.

Applying the principles in Rule 57.01(1) of the Rules of Civil Procedure and the proportionality considerations articulated in Boucher v. Public Accountants Council for the Province of Ontario, the court found substantial indemnity appropriate.

Costs were fixed at $19,177.07 payable within 30 days with post‑judgment interest if unpaid.

The defendant moved under Rule 21.01(c) of the Rules of Civil Procedure to stay or dismiss an Ontario wrongful dismissal action on the basis that the court lacked jurisdiction and that North Carolina was the more appropriate forum.

The moving party relied on contractual terms stating that the agreement was governed by the laws of North Carolina and argued that related proceedings had already been commenced there.

The responding party argued that she had worked in Ontario for 27 years, was paid in Canadian dollars through a Canadian bank, and that the termination occurred in Ontario.

Applying the forum non conveniens principles articulated in Van Breda and subsequent appellate authority, the court held that the defendant had not met the high burden required to displace the plaintiff’s chosen forum.

Ontario was found to be the appropriate forum given the location of the plaintiff, witnesses, and the employment relationship.

Following dismissal of the plaintiff’s $4.5 million action alleging that corporate sponsors of a soccer association owed a duty to ensure adequate insurance coverage for players, the court determined the issue of costs.

The successful defendants sought substantial partial indemnity costs following a Rule 21 motion that terminated the claim at an early stage.

The court held that while the defendants were entitled to significant costs, the hours claimed by counsel were excessive and involved duplication of work.

Considering the factors under Rule 57.01 of the Rules of Civil Procedure, the court reduced the requested amounts and fixed reasonable costs payable to the successful defendants.

The defendants, corporate sponsors of a soccer organization, brought a motion under rules 21.01(1)(b) and 25.11 of the Rules of Civil Procedure to strike a negligence claim arising from a catastrophic soccer injury.

The plaintiff alleged the sponsors had a duty of care to ensure that the organization maintained adequate insurance coverage for players.

The court held that mere financial sponsorship and advertising relationships do not create a proximate relationship giving rise to a duty of care to participants.

The pleadings failed to establish reliance, proximity, or control over the event or insurance arrangements.

The statement of claim disclosed no reasonable cause of action and was struck.

Two competing groups of plaintiffs brought carriage and stay motions regarding proposed class actions against Zimmer for allegedly defective hip implants.

The court considered the problematic of multiple class actions across Canada, including the differences between opt-in and opt-out regimes.

The court granted carriage to the McSherry action, which was coordinated with a certified British Columbia class action, and stayed the competing Mets, D'Anna, and Ducharme actions, finding this to be in the best interests of the class members.