Randy C. Sutton

The plaintiff, Robert Drynan, brought a motion to approve a third-party litigation funding agreement in a class action against Bausch Health Companies Inc. and related entities, alleging misleading marketing of COLD-FX® products.

The court addressed the defendants' objections concerning security for costs, litigation autonomy, overcompensation, and access to justice.

After amendments to the funding agreement to cap recovery for the funder and class counsel at 33.3% of proceeds and defer court approval for certain expenses, the court approved the agreement, finding it fair, reasonable, and conducive to access to justice, while protecting the defendants' interests.

The plaintiff killed his son while experiencing a psychotic episode allegedly caused by the antidepressant Paxil, manufactured by the defendant.

He was found not criminally responsible and was under the jurisdiction of the Ontario Review Board until receiving an absolute discharge in December 2009.

He commenced an action against the defendant in October 2011.

The defendant moved for summary judgment, arguing the action was statute-barred.

The motion judge dismissed the motion, finding the plaintiff lacked the psychological capacity to sue until his absolute discharge.

The Court of Appeal allowed the appeal, finding the motion judge materially misapprehended the evidence.

Exercising its fact-finding powers, the Court concluded the plaintiff failed to rebut the presumption of capacity under s. 7(2) of the Limitations Act, 2002, as he had demonstrated the ability to instruct counsel, manage affairs, and understand the litigation process well before his discharge.

The action was dismissed as statute-barred.

The Plaintiffs sought costs after successfully certifying a class action and dismissing a stay motion.

The court awarded the Plaintiffs $700,000 in all-inclusive costs, comprising $366,149.88 in disbursements and $333,850.12 in fees.

The court emphasized the discretionary nature of costs, the importance of certification motions in class actions, and the need for unsuccessful parties to provide their own bills of costs for comparison.

A portion of the costs ($30,000) was specifically allocated to two defendants (Bristol-Myers and Otsuka) for the stay motion, which the third defendant (Lundbeck) did not participate in.

A case management teleconference was held to schedule three motions for leave to appeal a decision of Morgan J. The Divisional Court set a timetable for the exchange of motion materials and directed that the motions proceed in writing before a single panel.

The court also provided detailed instructions for the creation of an electronic drop box, the formatting of electronic documents, and the filing of factums and compendiums in light of the COVID-19 suspension of ordinary court operations.

The plaintiffs brought a motion to certify a class action against the manufacturers and marketers of the antipsychotic drugs Abilify and Abilify Maintena, alleging negligence, failure to warn, and conspiracy regarding the risk of impulse control disorders.

The defendants opposed certification and brought a motion to stay the proceeding as an abuse of process, citing a parallel authorized class action in Québec.

The court found that the plaintiffs met all the criteria for certification under section 5(1) of the Class Proceedings Act, including establishing a plausible methodology for proving general causation.

The court dismissed the defendants' stay motion, finding that the Ontario action was not an abuse of process despite the last-minute amendments to the Québec claim that mirrored the Ontario pleading.

The plaintiffs brought an action against GlaxoSmithKline following the sudden and unexplained death of their five-year-old daughter, who died five days after receiving the H1N1 vaccine (Arepanrix).

The plaintiffs alleged that the manufacturer breached its standard of care by failing to adequately test the vaccine and failing to warn of its risks, and that the vaccine caused the child's death.

The court dismissed the action, finding no expert evidence to establish a breach of the standard of care regarding the vaccine's testing, approval, or disclosure of risks.

Furthermore, the court rejected the plaintiffs' expert evidence on causation, relying instead on the forensic pathologist and epidemiological experts who concluded there was no evidence linking the vaccine to the child's death.

The defendant brought a motion for summary judgment to dismiss the plaintiff's product liability action as statute-barred.

The plaintiff had killed his son while experiencing a psychotic episode, which he alleged was caused by the defendant's antidepressant medication.

The court found that while the plaintiff had cognitive awareness of his potential claim earlier, he lacked the psychological capacity to commence the action until his absolute discharge from the Ontario Review Board.

The motion for summary judgment was dismissed.

The parties appeared before the court to advise that the contested issue of carriage had been resolved by consent.

The court approved an agreed-upon schedule for the proceedings leading up to a certification motion and potential jurisdiction motions, including deadlines for the production of medical and gambling records, delivery of materials, cross-examinations, and factums.

The plaintiffs, franchisees of the defendant, brought a motion for partial summary judgment seeking declarations that the defendant franchisor breached the Arthur Wishart Act by failing to provide a disclosure document upon renewal of their franchise agreement, and breached its duty of fair dealing.

The franchisor argued it was exempt from providing a disclosure document under s. 5(7)(f) of the Act because there was no material change.

The court dismissed the motion, finding that whether the terms of the renewal agreement constituted a material change, especially in the context of the franchisor's shift toward a corporate service model, presented a genuine issue requiring a trial.

The representative plaintiff in a certified class action moved to discontinue the action against Pfizer Canada Inc. and Pfizer Inc. The action alleged neuropsychiatric adverse events from the drug varenicline (CHAMPIX®).

The decision to discontinue followed the release of the EAGLES Study, which did not support the allegations of generic causation.

The defendants consented to discontinuance without costs.

The court approved the discontinuance under s. 29(1) of the Class Proceedings Act, 1992, finding that the action was brought in good faith, the discontinuance would not prejudice class members (who retain individual claims and receive notice), and it was appropriate for the Class Proceedings Fund to end its exposure to costs given the remote prospects of success.

The plaintiff sought leave to appeal an order dismissing its motion for default judgment against two defendants noted in default.

The motions judge had dismissed the motion, concluding a trial was necessary to address allegations of fraud for piercing the corporate veil and to prove the compact disks were blank.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the decision as the motions judge failed to apply the deemed admissions under Rule 19.02(1) and the appeal raised important issues regarding the requirement to prove liability in default proceedings.

The defendants, Pfizer, brought a motion under Rule 21.01(1)(b) to strike various claims in the plaintiff Apotex Inc.'s Amended Statement of Claim.

Apotex sought relief for being kept out of the market by Pfizer's invalid patent for Viagra, asserting statutory claims under the Patented Medicines (Notice of Compliance) Regulations, Statutes of Monopolies, and Trade-marks Act, and common law claims for unjust enrichment, nuisance, Ashby v. White, and conspiracy.

The court struck the claims under s. 8 of the PMNOC Regulations and the independent cause of action based on Ashby v. White, finding that the statutory conditions for PMNOC damages were not met and Ashby v. White is a principle, not a cause of action.

However, the court dismissed Pfizer's motion to strike the claims under the Trade-marks Act, unjust enrichment, nuisance, and conspiracy, rejecting the 'complete code theory' as insufficiently settled for a preliminary stage motion and finding the pleadings for these claims to disclose a reasonable cause of action.

The defendant moved for leave to amend its statement of defence to plead a limitation period defence and sought summary judgment dismissing the plaintiff’s claim as statute-barred.

The court granted leave to amend under Rule 26.01 of the Rules of Civil Procedure, finding no prejudice that could not be compensated by costs and that the proposed amendment raised a triable issue.

However, the court dismissed the summary judgment motion, holding that the discoverability issue under the Limitations Act, 2002 involved complex factual questions regarding nine different products purchased at different times and representations made by the defendant.

The evidentiary record did not clearly establish when the plaintiff discovered that its losses were caused by the defendant.

The limitation issue was therefore held to require determination at trial.

The plaintiff commenced an action seeking damages arising from the rescission of a Dealer Agreement, which it alleged was a franchise agreement under the Arthur Wishart Act.

The defendants brought a cross-motion to stay the action, relying on a mandatory arbitration clause in the agreement.

The plaintiff argued the arbitration clause conflicted with an exclusive jurisdiction clause and that the summary judgment exception under s. 7(2) of the Arbitration Act applied.

The court found the arbitration clause applied and that the plaintiff failed to meet the heavy burden of showing this was a clear case for summary judgment.

The action was stayed pending the arbitrator's determination of jurisdiction.

Following a certification motion in a proposed class proceeding concerning pharmaceutical product liability, the plaintiff sought partial indemnity costs after obtaining certification against one defendant but not the other.

The court considered Rule 57.01 of the Rules of Civil Procedure and the discretionary principles governing costs in class proceedings.

While the defendants argued the plaintiff’s claim should be substantially reduced due to partial success and limited certification of common issues, the court rejected most of these arguments.

However, because certification was not granted against one defendant, the court reduced the plaintiff’s claimed costs by approximately 20 percent.

Costs of $300,000 all-inclusive were awarded payable forthwith.

The plaintiff sought certification of a proposed national class action alleging that a prescription smoking‑cessation drug caused neuropsychiatric adverse events and that the manufacturer breached its duty to warn consumers and physicians.

The court considered the certification criteria under the Class Proceedings Act, 1992, including whether there was some basis in fact for the proposed common issues and whether a class proceeding was the preferable procedure.

The court held that there was some basis in fact for a duty to warn claim against the Canadian manufacturer based on expert and anecdotal evidence of adverse psychiatric events.

The proposed class definition and common issues were amended to focus on specific neuropsychiatric symptoms and the adequacy of product monograph warnings between 2007 and 2010.

The proceeding was certified against the Canadian manufacturer but not against the U.S. parent company, whose involvement lacked a factual basis.

The appellants appealed a motion judge's decision that a restrictive covenant in a franchise agreement was not ambiguous to the point of being unenforceable as a pure question of law.

The Court of Appeal dismissed the appeal, finding that the provision was not facially ambiguous when read in the context of the entire agreement, and that any factual ambiguities would need to be determined at trial.

The respondents brought a motion before the Court of Appeal regarding the appellants' proposed fresh amended notice of appeal.

The court held that the motion judge's finding on the interpretation of the franchise agreement was a final order and properly appealable.

However, the remaining issues decided under Rule 20 were interlocutory, as the motion judge merely found genuine issues requiring a trial without finally determining them.

The motion was granted, with costs awarded to the moving parties.

The appellant franchisee received a disclosure document from the respondent franchisor more than 14 days after paying a franchise fee, but six months before executing the franchise agreement.

Nearly two years later, the franchisee sought to rescind the agreement under the Arthur Wishart Act.

The Court of Appeal upheld the motion judge's finding that the franchisee had no right of rescission.

Section 6(2) applies only when no disclosure document is ever provided, and section 6(1) requires rescission within 60 days of receiving a late or deficient document, which the franchisee failed to do.