Randy C. Sutton

This motion concerned the approval of a proposed settlement and counsel fees in a national class action against pharmaceutical companies.

The class action alleged that the atypical antipsychotic medications ABILIFY and ABILIFY MAINTENA caused various compulsive behaviours due to inadequate warnings.

The court approved a $14.75 million settlement fund, which includes compensation for class members suffering psychological harm, residual catastrophic injury, and financial loss, as well as honoraria for representative plaintiffs and class counsel fees.

The court found the settlement to be fair and reasonable, falling within the 'zone of reasonableness' despite objections from some class members regarding compensation adequacy and counsel fees.

This case involved a contractual dispute over a settlement agreement between pharmaceutical companies GSK and Pharmascience.

GSK claimed a stipulated payment from Pharmascience, alleging that a third-party generic manufacturer (Teva) had triggered a payment clause by entering the Canadian market.

The central issue was the interpretation of the term 'sale of its valacyclovir product in the Canadian market' within an exception clause, specifically whether it referred to ex-factory sales or downstream sales.

The court found that the term objectively meant ex-factory sales, considering the commercial context, the parties' control over sales, and the agreement's overall purpose.

Since Teva's ex-factory sales ceased within the 60-day period stipulated in the exception, the exception applied, and no payment was owed by Pharmascience.

The court dismissed GSK's action.

The plaintiffs appealed the dismissal of their motion to certify a class action against several discount brokers regarding the receipt of mutual fund trailing commissions.

The motion judge had found no basis in fact for the core proposed common issue of whether the receipt of such commissions contravened applicable Canadian securities law prior to their explicit prohibition in 2022.

The Divisional Court dismissed the appeal, finding that the motion judge correctly applied the 'some basis in fact' test, properly concluded that all pleaded causes of action relied on the allegation of illegality, and appropriately held the plaintiffs to their strategic concession that the entire action would fail if the core issue was not certified.

Hospira Healthcare India Private Limited and Hospira Inc. (Applicants) brought an application to enforce Letters Rogatory issued by the Supreme Court of the State of New York.

The Letters Rogatory sought documentary and oral evidence from Jack Rotsztain and 1827216 Ontario Inc. (Respondents), who were non-parties to the underlying U.S. action.

The U.S. action involved allegations that Apotex Corp. breached an exclusivity agreement by secretly contracting with a different supplier, Qilu, through 182 Ontario, with Mr. Rotsztain acting as its nominal president and counsel.

The Respondents opposed the application, arguing the requests were overly broad, not relevant or necessary, otherwise obtainable, unduly burdensome, and contrary to Canadian public policy, particularly regarding solicitor-client privilege.

The court, applying the six discretionary criteria for enforcing letters rogatory, found that the Applicants failed to establish relevance, necessity, or that the evidence was not otherwise obtainable.

Crucially, the court determined that enforcing the broad requests would be unduly burdensome and infringe upon recognized Canadian legal principles, especially the sanctity of solicitor-client privilege, amounting to a "fishing expedition" not permitted under Ontario's rules for non-party discovery.

The application was dismissed.

The plaintiffs brought a motion to certify a class action against seven discount brokers, alleging that their receipt of mutual fund trailing commissions prior to the 2022 prohibition was illegal.

The court found that the plaintiffs failed to satisfy the 'some evidence' requirement to show that the practice contravened applicable Canadian securities law.

The evidence filed by the plaintiffs themselves demonstrated that the practice, while controversial, was not illegal before the regulatory amendments took effect.

The motion for certification was dismissed.

The moving party, Telus Communications Inc., brought a motion for leave to appeal the orders of Perell J. dated January 12, 2021 and August 19, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000 all-inclusive.

The appellant, Princes Gates GP Inc. (PG), appealed a trial judgment finding it liable for breach of contract and bad faith termination of agreements with the respondent tenant, 2505243 Ontario Limited (250), a food services provider.

The trial judge awarded 250 reliance damages and employee compensation damages.

PG argued errors in findings of improper termination, refusal to assist with the Canada Emergency Commercial Rent Assistance Program (CECRA), bad faith, and damages calculation.

The Court of Appeal dismissed PG's appeal, upholding the trial judge's findings that PG's actions contributed to 250's inability to pay rent, their refusal to assist with CECRA was unjustified, and their termination was in bad faith by misleading 250 while secretly negotiating with a new provider.

The court also affirmed the reliance damages award and the employee compensation damages.

The defendants brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded agreed costs of $15,000 to the responding plaintiff.

This is a costs endorsement following an appeal.

The appellants argued that their appeal raised novel issues in the public interest, warranting no costs award.

The court rejected this, finding the appeal involved the application of well-established legal principles.

The respondent, GlaxoSmithKline Inc., successfully resisted the appeal and was awarded partial indemnity costs, fixed at $25,000, inclusive of disbursements and taxes, limiting the award to costs associated with time spent by two senior lawyers.

The appellant, Stericycle ULC, appealed an order dismissing its application for a declaration that it, rather than Daniels Sharpsmart Canada Limited, was the primary supplier for Provincial Health Services Authority (PHSA) under a public tendering process.

Stericycle argued that the application judge erred in contract interpretation, allowing impermissible bid repair, and failing to properly apply the duty of good faith.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation of the "Six Month Provision" or the contract start date.

The court also found no breach of the duty of good faith or honest performance by HealthPRO or PHSA, as their actions were consistent with the contract's purpose and Stericycle's reasonable expectations.

The appellants appealed a trial judgment that dismissed their action against GlaxoSmithKline (GSK), alleging that an H1N1 vaccine manufactured by GSK caused their five-year-old daughter's death.

The appeal raised issues concerning GSK's duty to warn (including the learned intermediary rule), its post-marketing commitments, the inference of negligence from circumstantial evidence, and costs.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that GSK adequately warned the learned intermediary (the physician), met its post-marketing obligations, and that the appellants failed to prove negligence or causation on a balance of probabilities.

The court also upheld the trial judge's discretionary costs award.

The plaintiff brought a motion to certify a class action against the manufacturers of COLD-FX products, alleging that representations that the products were 'proven by science' or 'clinically proven' to reduce cold and flu symptoms were false and misleading.

The court found that the plaintiff met all the requirements for certification under section 5 of the Class Proceedings Act.

The court held that the claims under the Consumer Protection Act, the Competition Act, and for unjust enrichment disclosed valid causes of action, as reliance is not required for these claims.

The court certified the class and the proposed common issues against Bausch Health Canada Inc. and Valeant Canada LP, finding that a class proceeding was the preferable procedure.

The defendants appealed a decision certifying an Ontario national class action and dismissing a motion to stay the action as an abuse of process due to a parallel, certified Quebec class action.

The Divisional Court dismissed the appeal, finding no error in principle in the motion judge's exercise of discretion.

The motion judge properly considered the history of the proceedings, including the defendants' failure to oppose the Quebec authorization after last-minute amendments, and reasonably concluded the Ontario action was not an abuse of process and was the preferable procedure.

The plaintiff, a food and beverage operator, sued the defendant hotel for unlawful and bad faith termination of their commercial leases and service agreements.

The hotel terminated the agreements during the COVID-19 pandemic, alleging unpaid rent and other breaches, while secretly negotiating with a replacement operator.

The court found the termination was unlawful and in bad faith, as the hotel wrongfully withheld deposits, owed the plaintiff money, and unreasonably refused to assist with a government rent subsidy application.

The court awarded the plaintiff reliance damages for its capital investments and employee termination costs, less a set-off for the hotel's proven counterclaim.

The plaintiff brought a motion to certify a national class action against a telecommunications provider for failing to provide pro-rated refunds to customers who cancelled their wireless service agreements.

The court denied certification for the national class claim under the Telecommunications Act, finding no viable cause of action.

However, the court granted certification for an Ontario subclass advancing claims under the Wireless Services Agreement Act, 2013, finding that the pleadings disclosed a valid cause of action, there was an identifiable class, and the common issues, including aggregate and punitive damages, were suitable for a class proceeding.

The plaintiff brought a proposed class action against a telecommunications provider seeking pro-rated refunds for prepaid wireless services after cancelling her contract.

The plaintiff relied on a statutory cause of action under the Telecommunications Act, alleging the provider breached the CRTC's Wireless Code.

The provider brought a cross-motion to strike the claim.

The Superior Court granted the cross-motion, finding that the plaintiff's claim was essentially for breach of contract, which is expressly excluded from the statutory cause of action by s. 72(3) of the Act.

Alternatively, the court held it would decline to exercise jurisdiction and defer to the CRTC, which has exclusive regulatory authority over the Wireless Code.

The plaintiff brought a proposed class action against a wireless service provider for failing to provide pro-rated refunds upon cancellation of services, relying on the provincial Wireless Services Agreement Act, 2013.

The defendant brought a cross-motion arguing the provincial Act was ultra vires or inoperative due to federal jurisdiction over telecommunications.

The court held that the provincial Act was valid consumer protection legislation, and was not rendered inoperative by the doctrines of federal paramountcy or interjurisdictional immunity.

The applicant, an incumbent biomedical waste disposal provider, challenged the award of a new primary supplier contract to a competitor.

The applicant alleged that the respondents engaged in bid repair and breached their duty of fairness by allowing the competitor to delay the implementation of services and assisting them with regulatory approvals post-award.

The court dismissed the application, finding that the duty of fairness to unsuccessful bidders ended once the contract was awarded, and that the post-award communications were operational in nature and did not constitute bid repair.

The court also rejected the argument that the respondents had irrevocably elected the applicant as the primary supplier by utilizing their services during the transition period.

The plaintiff brought a proposed class action against the defendant employer for unpaid overtime, initially claiming $100 million.

The parties reached a pre-certification settlement of $7 million, which included a new time-tracking system.

The court certified the action for settlement purposes and approved the settlement, finding it fair and reasonable given the adjusted actual loss, comparable settlements, and the significant litigation risk posed by the COVID-19 pandemic's impact on the travel industry.

The court also approved a $10,000 honorarium for the representative plaintiff due to retaliatory employment consequences, and approved class counsel's 25% contingency fee.

The defendants brought motions for leave to appeal an order certifying a class action.

The Divisional Court granted leave to appeal, but limited it to two specific questions: whether the motion judge erred in applying the preferable procedure requirement under s. 5(1)(d) of the Class Proceedings Act given a parallel authorization in Quebec, and whether the judge erred in applying the abuse of process doctrine.

Costs of the motion were fixed at $5,000 and left to the discretion of the panel hearing the appeal.