Robin Deryck Linley

The plaintiff sued the defendant pharmaceutical company for negligence, alleging that its prescription inhaler, Symbicort, caused him to develop a rare disease, EGPA.

The defendant moved for summary judgment on the basis that the plaintiff could not prove general causation.

The court accepted the uncontradicted expert evidence that while there is an epidemiological association between the drug and the disease, there is no causal connection.

Finding no genuine issue requiring a trial, the court granted the motion and dismissed the action.

The moving parties brought motions to quash part of an application for judicial review for lack of jurisdiction and to strike out certain expert evidence.

The underlying application challenged a decision by the Minister of Natural Resources regarding the Abitibi River Water Management Plan and sought a declaration that the Lakes and Rivers Improvement Act regime is unconstitutional for failing to trigger the duty to consult.

The Divisional Court held that it lacked jurisdiction under the Judicial Review Procedure Act to hear the broad constitutional challenge and transferred that portion of the application to the Superior Court.

The motion to strike evidence was adjourned to the panel hearing the judicial review.

The plaintiff commenced a 468-page statement of claim against 38 defendants, alleging that her children's autism was caused by environmental toxins and acetaminophen, and seeking billions of dollars to fund a fecal microbiota transplant program.

A motion judge dismissed the claim against most defendants under Rule 2.1.01 as frivolous and vexatious, but allowed the claims against the Bayer and Johnson defendants to proceed.

The Bayer and Johnson defendants appealed.

The Divisional Court allowed the appeal, finding that the motion judge erred by failing to consider the plaintiff's lack of standing, the court's inability to order the requested research funding, and the numerous hallmarks of querulous litigation present in the claim.

The action was dismissed against the remaining defendants.

This decision addresses motions for summary judgment in three related product liability actions concerning polypropylene mesh used in hernia repair surgeries.

The plaintiffs, having suffered complications and undergone further surgeries, sued the manufacturer years after the expiry of the basic two-year limitation period.

The court found that the plaintiffs failed to demonstrate that their claims were not reasonably discoverable within the limitation period, emphasizing the requirement of reasonable diligence and the inability to rely on a "eureka moment" or the discovery of a law firm's list to toll the limitation period.

All three actions were dismissed as statute-barred.

The moving parties, Johnson & Johnson Inc. and McNeil Consumer Healthcare, Canada, brought a motion for leave to appeal the decision of the lower court dated October 4, 2023.

The Divisional Court granted the motion for leave to appeal, with the issue of costs left to the appeal panel.

This decision concerns the costs arising from an application to enforce Letters Rogatory in a class action context.

The Applicants sought production of source code and deposition from Modiface Inc., a non-party to the underlying U.S. litigation.

The court ordered Modiface to provide compiled and obfuscated code and to submit to deposition, but limited the scope of production.

The decision addresses the appropriate quantum and basis for costs, ultimately awarding $150,000 all-inclusive to the Respondent, balancing the principles of indemnity, proportionality, and reasonableness.

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.

The Applicants sought to enforce Letters Rogatory from an Illinois court to compel ModiFace Inc., a Canadian non-party, to produce its un-obfuscated source code and provide deposition testimony in a class action against Amazon.

ModiFace resisted, arguing the request was too broad, unnecessary, and contrary to public policy due to the proprietary nature of its source code.

The court, applying Canadian principles of comity and public policy, denied the request for un-obfuscated source code, finding it not relevant, necessary, or otherwise obtainable under Ontario law, and that its production would be unduly burdensome and contrary to public policy.

The court ordered ModiFace to produce compiled and obfuscated code and submit to a deposition with specific procedural protections under Ontario rules.

The plaintiffs brought a motion under Rule 32 of the Rules of Civil Procedure seeking approval for a protocol for destructive testing of a medical device (Stryker Trevo Stent Retriever) that fractured during a medical procedure, leaving a portion in the plaintiff Evelyn Logan's brain.

Both the plaintiffs and the defendant Stryker Canada Corp. agreed on the necessity of testing but disputed the specific method, scope, and costs.

The court found the destructive testing of the "Critical Portion" of the device to be necessary and useful for determining the cause of failure.

While the plaintiffs' proposed protocol was deemed too vague, the court adopted a modified version of Stryker's proposed protocol, balancing the need for testing with the potential prejudice to Stryker.

The court ordered the plaintiffs to bear the cost of the testing and an Exemplar Device, and established a phased testing approach, including preliminary testing on an Extra Wire and an Exemplar Device before proceeding with the Critical Portion, with provisions for Stryker to observe and object to the final method.

No costs were awarded due to divided success.

The plaintiffs brought a motion for court approval to discontinue a proposed products liability class action concerning 'Physiomesh', a surgical mesh manufactured by the defendants.

The discontinuance was sought to implement a settlement scheme for individual claims.

The court found that the discontinuance was not brought for an improper purpose and would not prejudice putative class members, as the limitation period suspension would continue for 90 days after notice.

The court approved the discontinuance, finding it beneficial for settling claimants and in their best interests.

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 plaintiffs brought a motion for approval of a $15.5 million settlement in a class action concerning defective metal-on-metal hip implants.

The settlement provides compensation for class members who underwent premature revision surgery, medically precluded claimants, and family members with derivative claims.

The court approved the settlement as fair and reasonable, noting it compares favourably to similar settlements in other jurisdictions.

The court also approved class counsel's 30% contingency fee and awarded $10,000 honoraria to the lead representative plaintiffs for their extensive contributions over 11 years of litigation.

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.

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 appellant, a real estate development company, appealed a summary judgment dismissing its action against the respondents regarding a request for proposals for the redevelopment of Toronto waterfront property.

The appellant's proposal was disqualified for listing an ineligible person as an advisor.

When the appellant requested reconsideration, the sponsors declined to rescind the disqualification.

The appellant argued the sponsors owed a duty of fairness in the reconsideration process and that the fairness monitor was inadequately involved.

The Court of Appeal dismissed the appeal, finding no unfairness in the reconsideration process on a factual basis, without deciding the legal question of whether a duty of fairness was owed.

The defendant manufacturer brought a motion for partial summary judgment to dismiss claims of negligent manufacturing, failure to warn, and breach of implied warranty arising from an incident where a police officer was accidentally struck in the head by a TASER electrical weapon fired by his partner.

The court dismissed the motion, finding that the issues were inextricably linked to the conceded trial issue of negligent design.

The court also declined to strike an affidavit sworn by plaintiffs' counsel, ruling it was admissible as 'evidence about evidence' to demonstrate the record that would be available at trial.

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 plaintiff, CG Acquisition Inc., commenced an action against P1 Consulting Inc., Ontario Infrastructure and Lands Corporation (IO), and the Liquor Control Board of Ontario (LCBO) after being disqualified from a Request for Proposal (RFP) process.

The defendants brought motions for summary judgment to dismiss CG's claim, which was framed in tort, alleging breach of a common law duty of fairness and negligent investigation/service provision during the reconsideration of its disqualification.

The court granted summary judgment, finding no freestanding duty of fairness or care owed to a non-compliant bidder, and that the defendants' actions during reconsideration were reasonable and protected by a limitation of liability clause in the RFP.