COURT FILE NO.: CV-15-543259-00CP
DATE: 20211214
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
REBECCA GREEN
Plaintiff
– and –
THE HOSPITAL FOR SICK CHILDREN, GIDEON KOREN and JOEY GARERI
Defendants
Kirk Baert, Celeste Poltak, Aryan Ziaie, and Caitlin Leach for the Plaintiff
Darryl A. Cruz, Erica J. Baron, and Jessica L. Laham for the Defendant Gideon Koren
Kate A. Crawford and Barry Glaspell for the Defendants The Hospital for Sick Children and Joey Gareri
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
[1] Pursuant to s. 28 of the Class Proceedings Act, 1992,[^1] the Plaintiff, Rebecca Green, brings a motion for an order granting leave to discontinue this action without costs and without a notice to the putative class members.
[2] The motion is with the consent of the defendants.
[3] The requested relief is appropriate, and I therefore grant the plaintiff’s request.
[4] The background to this motion is as follows:
a. In December 2015, this action was commenced as a proposed class proceeding under the Class Proceedings Act, 1992.
b. In November 2017, I dismissed the motion to certify this action as a class proceeding,[^2] and the decision was upheld on appeal.[^3]
c. On October 2, 2019, pursuant to s. 7 of the Class Proceedings Act, 1992, I continued the action as an individual action.[^4] I also declared that the limitations periods of the putative class members remained suspended pursuant to s. 28(1) of the Act (as in effect at the time).
d. Ms. Green is now pursuing her claim against the defendants in a separate court file, bearing court file number CV-20-649590. She is represented by Koskie Minsky LLP.
e. Koskie Minsky LLP is representing over 100 other individuals in claims against the defendants.
f. Ms. Green’s action and at least 30 other actions with plaintiffs represented by different counsel are being case-managed by Justice Darla Wilson. Common discoveries of the defendants have been ordered to proceed early next year.
g. In the immediate case, counsel for the parties have agreed to another path forward for Ms. Green’s litigation. They have agreed to enlist the case management of Justice Wilson of the plaintiff’s and of former putative class members’ actions and to participate in common discoveries.
[5] Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, dismissal or settlement of a proceeding commenced under the Act. Section 29 states:
Discontinuance, abandonment and settlement
- (1) A proceeding commenced under this Act and a proceeding certified as a class proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.
Settlement without court approval not binding
(2) A settlement of a class proceeding is not binding unless approved by the court.
Effect of settlement
(3) A settlement of a class proceeding that is approved by the court binds all class members.
Notice: dismissal, discontinuance, abandonment or settlement
(4) In dismissing a proceeding for delay or in approving a discontinuance, abandonment or settlement, the court shall consider whether notice should be given under section 19 and whether any notice should include,
(a) an account of the conduct of the proceeding;
(b) a statement of the result of the proceeding; and
(c) a description of any plan for distributing settlement funds.
[6] A motion for discontinuance or abandonment should be carefully scrutinized, and the court should consider, among other things: whether the proceeding was commenced for an improper purpose; whether, if necessary, there is a viable replacement party so that putative class members are not prejudiced; or whether the defendant will be prejudiced.[^5]
[7] In the immediate case, there is no prejudice to the former members of the proposed class from a discontinuance of this action, as they have had an adequate opportunity, following the dismissal of the certification motion, to bring claims against the defendants, and many have done so, with the cases being case managed by Justice Wilson.
[8] In all these circumstances, it is appropriate to grant leave to discontinue the action.
[9] No notice of the discontinuance is required under section 19 of the Class Proceedings Act, 1992 because:
a. no notice of certification was previously given to the proposed class;
b. former proposed class members have had sufficient opportunity to bring their own civil claims against the defendants as a result of website updates and communications by Koskie Minsky LLP to all former proposed class members known to them (except for a few who asked to be excluded from any communications); and
c. Koskie Minsky LLP has updated their website and emailed all former proposed class members (other than those who have already sought to retain Koskie Minsky LLP and those who asked to be excluded from any communications) to advise of the plaintiff’s intention to bring this motion and the possible impact of it on their ability to bring an action against the defendants.
[10] Order to go as asked. I have signed the Order.
Perell, J.
Released: December 14, 2021
COURT FILE NO.: CV-15-543259-00CP
DATE: 20211214
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
REBECCA GREEN
Plaintiff
– and –
THE HOSPITAL FOR SICK CHILDREN, GIDEON KOREN and JOEY GARERI
Defendants
REASONS FOR DECISION
PERELL J.
Released: December 14, 2021
[^1]: S.O. 1992, c. 6.
[^2]: Green v. The Hospital for Sick Children, 2017 ONSC 6545.
[^3]: Green v. The Hospital for Sick Children, 2018 ONSC 7058 (Div. Ct.).
[^4]: Green v. The Hospital for Sick Children, 2019 ONSC 5696, leave to appeal to the Court of Appeal refused on March 15, 2019.
[^5]: Logan v. Canada (Minister of Health), [2003] O.J. No. 418 (S.C.J.), aff’d (2004), 2004 CanLII 184 (ON CA), 71 O.R. (3d) 451 (C.A.).