Peter J. Pliszka

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 plaintiff sought court approval to dismiss his proposed class action regarding the recalled drug Valsartan.

Following a carriage agreement with another class action and discovering that one defendant did not manufacture the active ingredient, the plaintiff sought to dismiss the action against all defendants without costs.

The court approved the dismissal under section 29 of the Class Proceedings Act, 1992, finding no prejudice to putative class members as other actions were proceeding across Canada.

The appellants appealed the dismissal of their motion for certification of a class proceeding regarding emissions 'defeat devices' in certain diesel vehicles.

The motions judge had denied certification on the basis that a class proceeding was not the preferable procedure, as the vehicles had been recalled and repaired, and there was no evidence of compensable loss.

The Divisional Court dismissed the appeal, finding no error in principle or palpable and overriding error of fact in the motions judge's conclusion that a class action was not the preferable procedure.

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.

Following the dismissal of the plaintiffs' motion for certification in an emissions defeat device class action, the successful defendants sought costs totaling $965,012 on a partial indemnity basis.

The plaintiffs argued for a maximum award of $125,000, noting their own costs were $550,263.

The court fixed costs at $560,000 all-inclusive on a partial indemnity scale, finding this amount fair and reasonable given the complexity of the issues, the number of defendant groups, and the costs reasonably incurred by the plaintiffs themselves.

The plaintiffs brought a motion to certify a class action against the defendants regarding an alleged emissions defeat device in certain diesel-engine vehicles.

The defendants had already initiated a recall to repair the defeat device at no cost, rendering the vehicles compliant with emissions regulations.

The court dismissed the certification motion, finding that the plaintiffs failed to provide any evidence of compensable harm, such as paying a premium price or experiencing reduced fuel economy post-repair.

Without compensable harm, the court held that a class action would not advance the goals of access to justice, behaviour modification, or judicial economy.

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.

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.