minicounsel

COURT FILE NO.: CV-17-00579153-00CP

DATE: 20220818

BETWEEN:

BRUNO NARDI

Plaintiff

and –

SORIN GROUP DEUTSCHLAND GMBH and LIVANOVA CANADA CORP.

Defendants

Margaret A. Waddell and Sean Brown for the Plaintiff

Jill Lawrie and for the Defendants

Proceeding under the Class Proceedings Act, 1992

HEARD: July 20, 2022

Contents

A. Introduction. 2

B. Background Science and Medicine. 2

C. Facts. 4

D. The Defendants’ Argument 6

E. The Plaintiff’s Argument 6

F. Legislative Background. 7

G. Discussion and Analysis. 7

H. Conclusion. 14

Schedule A- Excerpts Class Proceedings Act, 1992. 15

Schedule “B” -The Law Society of Ontario’s Rules of Professional Conduct 19

A. Introduction

1The Merriam Webster on-line dictionary defines the adjective “medicolegal” as relating to both medicine and the law and says that the word was first used in a sentence in 1835. This motion asks the provocative question of whether Class Counsel in a medicolegal class action can be directed not to provide medical advice to the class members.

2Pursuant to the Class Proceedings Act, 1992,¹ this is a certified medicolegal class action brought by Bruno Nardi against Sorin Group Deutschland GMBH and Livanova Canada Corp.²

3The action is brought on behalf of what is described as the “Patient Class.” The Patient Class is comprised of persons in Canada who underwent open chest cardiac surgery during which the Sorin 3T Heater-Cooler System (“the Sorin 3T”) was used. The fundamental allegation against the Defendants is that the Sorin 3T was contaminated with M. chimaera bacteria causing and potentially causing personal injuries to the Class Members should they become infected.

4The Defendants bring a motion for the following relief:

a. An order providing the following directions to class counsel, Waddell Phillips Professional Corporation and Flaherty McCarthy LLP (together, “Class Counsel”), regarding future communications with the patients for whom contact details are sought on the representative plaintiff’s motion (the “Patients”):

Class Counsel shall not directly or indirectly provide medical advice, information, or opinions about the potential risk of developing an M. Chimaera infection, or the symptoms, latency, diagnosis, treatment, or potential outcomes of an M. Chimaera infection to the Patients.
Class Counsel shall encourage the Patients to contact their respective health care providers if they have any questions about the potential risk of developing an M. Chimaera infection, or the symptoms, latency, diagnosis, treatment, or potential outcomes of an M. Chimaera infection.
Class Counsel shall follow the language in the notice of certification approved by the Court (the “Notice of Certification”) to the greatest extent possible.
Class Counsel shall limit language that may cause undue alarm, concern, and panic among the Patients to the greatest extent possible;

5For the reasons that follow, the motion is dismissed.

B. Background Science and Medicine

6Mycobacterium chimaera (“M. chimaera”) is a non-tuberculous mycobacterium. M. chimaera can cause serious, sometimes deadly infections. Two nasty aspects of the germ are that it can take months to years to manifest as an infection and it is very difficult to treat.

7Unfortunately, it was discovered that a heater-cooler system used in open chest surgery to regulate blood temperature can be a source of M. chimaera. The blood temperature device circulates water through a heat exchanger and some of the water vaporizes and if the device has been contaminated with bacteria, then the bacteria may invade the surgical field and infect the patient.

8Health Canada’s publication, “Summary assessment of public health risk associated with Mycobacterium chimaera infections in patients exposed to heater-cooler devices in Canada” provides the following information about surgery and M. chimaera infections:

While M. chimaera infection has been associated with lung infections in vulnerable patients and those with underlying medical conditions, contaminated [heater-cooler system] provide an unusual mechanism of potential infection by generating aerosols that can carry the organism during cardiopulmonary bypass surgery. This can deposit NTMs directly into the surgical site, which can lead to invasive disease that can be difficult to cure. Although the overall risk of infection from contaminated [heater-cooler system] is considered low for patients that undergo cardiopulmonary bypass surgery, there are a number of challenges associated with diagnosis and treatment. Due to the nature of this slow growing bacterium, it can take months to years for the infection to evolve and for patients to manifest clinical illness. Symptoms of the infection can be non-specific, making its distinction from other, more common causes of infection, challenging. Infections of M. chimaera are difficult to treat and require prolonged, carefully monitored administration of a combination of antimicrobials. These antimicrobials have their own associated toxicities. Repeat surgery may be required and there is a high rate of treatment failure and fatal outcome associated with invasive infections

9Fortunately, the risk of contracting an M. chimaera infection during surgery is very low. Health Canada’s publication states:

The Centers for Disease Control and Prevention (CDC) estimates in hospitals where at least one M. chimaera infection associated with exposure to [HCUs] has been identified, the risk of a patient getting an infection was between approximately 1 in 1000 and 1 in 100 (0.1-1%)

10Unfortunately, while the risk of contracting during surgery is low, if contracted, the risk of death is high. An article published by Schreiber & Sax (2017) in Co-Infectious Diseases states,

Cardiac surgery-associated M. chimaera infections have a poor prognosis and sustained cure remains uncertain. In the largest published case series to date, case fatality rate was around 50% despite treatment with at least three active antibiotics combined in many cases with revision surgery. M. chimaera still grew in tissue samples after several months of targeted antibiotic combination therapy consisting of clarithromycin, rifabutin, ethambutol, and transiently quinolones.

11The Class Members surgeries took place between 2010 and 2017. The symptoms of M. chimaera infections are non-specific and may be latent (delayed in manifesting themselves), making it difficult to accurately diagnose the infection. Scientists estimate the latency period between 3 months to 5.1 years post-surgery and some scientists indicated latency periods of up to 6.3 years.

12According to a Safety Recall Notice issued by Health Canada on February 17, 2017, “[M. chimaera] infections can take several months to years to develop and cause symptoms, which can include, but are not limited to unexplained and persistent night sweats, weight loss, fatigue, and fever”. The American Federal Drug Administration’s (“FDA”) Safety Communication advised that the possible signs and symptoms of M. chimaera] infection included fever, fatigue, nausea, vomiting, night sweats, weight loss, pain, muscle pain, joint pain, abdominal pain, and redness, heat, or pus at the surgical site. Academic and governmental sources have identified coughing, with or without blood, as a possible symptom of an M. chimaera infection.

C. Facts

13The Defendants manufactured the Sorin 3T, which is a heater-cooler system used in open chest surgery to regulate blood temperature. This system circulates water through a heat exchanger and some of the water vaporizes.

14In this certified class proceeding, Mr. Nardi alleges that the Sorin 3Ts used in open heart surgeries, were contaminated with a species of non-tuberculous mycobacteria, called Mycobacterium chimaera (“M. chimaera”), at the defendants’ manufacturing facility. It is alleged that this contamination has caused or may cause class members, who underwent open heart surgery to develop an M. chimaera infection.

15The claim alleges that the Class Members remain at risk of having and have and will suffer, damages for “severe emotional distress related to the pain and suffering” associated with being notified of the exposure to M. chimaera infection, even in the absence of an M. chimaera infection.

16On November 28, 2014, Mr. Nardi underwent coronary artery bypass surgery at Southlake Regional Health Centre in Newmarket, Ontario. The surgery went well.

17After the surgery by October 2016, Mr. Nardi had developed persistent coughing and he began to experience night sweats, muscle aches, fatigue, occasional fever, imbalance and bouts of dizziness. He attributed the symptoms to still recovering from heart surgery.

18In October 2016, Mr. Nardi viewed a CTV television news report. The report stated that bacterial infections, which could be fatal, were associated with the Sorin 3T unit that was in use during heart surgery. He deposes that he panicked, and became anxious, fearful, and worried about his own health. He deposes that he could not get it out of his head that he had been infected.

19On November 30, 2016, Mr. Nardi saw his family doctor, Dr. Caturay. Dr. Caturay diagnosed Mr. Nardi as presenting with a viral respiratory tract infection. Dr. Caturay referred Mr. Nardi to an infectious disease specialist, Dr. Sales.

20However, nothing came of the referral because the infectious disease clinic was at capacity and Dr. Sales would not take Mr. Nardi on as a patient.

21On December 21, 2016, Mr. Nardi saw his heart surgeon, Dr. Teng. Dr. Teng arranged an appointment with Dr. Michael Lingley, an infectious disease specialist.

22On January 19, 2017 and February 14, 2017, Mr. Nardi saw Dr. Lingley. Dr. Lingley advised Mr. Nardi that he was at a fairly low risk of mycobacterial infection. Dr. Lingley referred Mr. Nardi to a respirologist to see if there was an explanation for the persistent cough.

23In late April 2017, Mr. Nardi received a notice letter from Southlake Regional Health Centre advising him of a potential risk of developing an M. chimaera infection. Mr. Nardi deposes that the notice exacerbated his already existing anxiety, fearfulness, and worry about his health since his symptoms were associated with an M chimaera infection. He worried that the quality of his life would be drastically affected. He worried that he might die from the infection.

24On +. Mr. Nardi commenced his class action.

25Class Counsel are Waddell Phillips PC and Flaherty McCarthy LLP. They posted updates on the class action on their websites. Class Counsel participated in media interviews and organized a public information session about the class action.

26In their public communications, Class Counsel identify themselves as lawyers for Mr. Nardi and for the class. The communications provide information about: (a) the nature of the Sorin 3T; (b) the nature of the M. chimaera bacteria; (c) the means of M. chimaera infection occurring during heart surgery; (d) the risk of M. chimaera infection; (e) the diagnosis and the symptoms of M. chimaera infection; (f) the latency of symptoms; (g) the treatment of infections; and (h) the risk of adverse outcomes including death.

27The communications from Class Counsel also include information about the nature of claims for anxiety that may be compensable arising from the notices received by the Class. (The Defendants object to this type of information in particular.)

28For example, Class Counsel in response to a question asked by a putative Class Member provide the following public information about claims for anxiety:

If you have suffered from significant anxiety since learning of the potential of being infected by M. chimaera, you should contact your health care provider or mental health care provider to address your anxiety, if this anxiety is interfering with your mental well-being or day to day living and coping ability. If this is the case, we would also like to hear from you about your experiences. Significant anxiety is something that is “serious and prolonged and rises above the ordinary annoyances, anxieties and fears that come with living in civil society. If your anxiety rises to this level, you might be entitled to compensation, even if there is no conclusive proof that you were infected with M. chimaera from the LivaNova heater cooler units.

29Class Counsel say that the information about M chimaera infections is necessary to inform the Class about the nature of the action, and to help them identify if they may have a compensable injury. Class Counsel say that all of the information posted on the websites is derived from authoritative sources of information on M. chimaera infections and the use of devices like the Sorin 3T. Class Counsel say that they have never purported to be healthcare professionals and that they did not purport to provide medical advice or opinions. On their websites, they urge potential Class Members to consult their treating physicians if they have concerns specific to their individual situations.

30On May 21, 2021, Mr. Nardi’s action was certified as a class proceedings on behalf of a class consisting every person in Canada, who underwent open chest cardiac surgery during which the Defendants’ device was used at one of the listed institutions after January 1, 2010 and before a specified end date by institution.

31I approved the Notice of Certification. The Notice of Certification was published in print media, social media, and on Class Counsel’s websites.

32The Notice of Certification does not provide medical advice, information, or opinions about the risk of developing an M. chimaera infection, or the symptoms, latency, diagnosis, treatment, or potential outcomes of an infection. The Notice advises Class Members to contact their doctors if they have any questions about their medical condition.

33Recently in July, on an unopposed motion, Mr. Nardi sought and was granted an order that 10 Ontario hospitals, 10 Québec hospitals, and one hospital from Newfoundland and Labrador produce their mailing lists of the patients they contacted alerting them to the possible contamination of the Sorin 3T Heater-Cooler System during their surgeries.³

34Mr. Nardi sought the disclosure of the mailing lists because: (a) the Mailing Lists identify the patients who were potentially exposed to the M. chimaera bacteria; (b) the Mailing lists will facilitate communicating with the Class Members about the prosecution of the action and about settlement negotiations, if any; and (c) the Mailing lists will facilitate gathering evidence for the common issues trial.

D. The Defendants’ Argument

35The Defendants make an altruistic argument, a selfish argument, and a mixed altruistic and selfish argument in support of their motion.

a. Altruistically, the Defendants argue that the requested directions to Class Counsel, set out above, are necessary to ensure that Class Members obtain appropriate individual medical advice.

b. Selfishly, the Defendants argue that the requested directions are necessary to prevent the exacerbation and inflation of the emotional distress claims being made against the Defendants.

c. Altruistically and selfishly, the Defendants submit that the requested directions would serve to protect the fairness and integrity of this class proceeding for the Plaintiff, Class Members, and the Defendants by ensuring that any communications are modulated to limit, to the greatest extent possible, undue panic, alarm, or concern. The Defendants argue that preventing undue panic, alarm, or concern is fair to class members and fair to the Defendants since the Class Members seeks damages for emotional distress, and such distress should not be caused by or manufactured as a result of Class Counsel’s own communications.

36The Defendants submit that the Directions are minimally intrusive and do not impinge upon lawyer and client confidentiality and privilege between Class Counsel and the Class Members.

E. The Plaintiff’s Argument

37Mr. Nardi submits that other than the notices authorized by sections 17 to 19 of the Class Proceedings Act, 1992, Class Counsel’s communications with the class are privileged and not subject to the court’s scrutiny. Mr. Nardi argues that the requested directions are an unnecessary and improper incursion into the zone of privilege and privacy between lawyer and client.

38Mr. Nardi submits that the court does not have the jurisdiction to make the requested directions because although s. 12 of the Class Proceedings Act, 1992 and the court’s inherent jurisdiction are broad, this request is unnecessary, and improper and has nothing to do with maintaining the integrity of the litigation process. Mr. Nardi submits that the real reason for the Defendants’ request is that they are seeking to limit the number of Class Members making claims for compensation.

39Mr. Nardi submits that the Defendants’ evidentiary record fails to meet the high threshold standard required to justify the intrusive relief sought, which is akin to the standard for a qui timet interlocutory injunction. He says the Defendants offer no evidence to show that Class Counsel’s future, unknown and unspecified communications with Class Members will injure the Class or disrupt the orderly determination of the action.

40Mr. Nardi defends the information already provided by Class Counsel on their websites. He says the information is truthful and that nothing on the websites is false, misleading, or hyperbolic. He says that the websites reasonably explain to the Class Members the nature of the claim advanced on their behalf, which, because this is about infections from medical equipment, includes details about the nature of the infection that Class Members might suffer based on information from academic and/or government publications.

F. Legislative Background

41For present purposes, the relevant provisions of the Class Proceedings Act, 1992 are sections 12 and 17-22. These provisions are set out in Schedule “A” to these Reasons for Decision.

42Also relevant are certain provisions in the Law Society of Ontario’s Rules of Professional Conduct, since communications between a lawyer and clients or potential clients, and between a lawyer and a represented or unrepresented person are regulated by the Law Society under the Rules of Professional Conduct. For present purposes, the relevant provisions are set out in Schedule “B” to these Reasons for Decision.

G. Discussion and Analysis

43There is already a body of case law about communications with putative Class Members and Class Members by plaintiff’s lawyers and by defendant’s lawyers. ⁴ None of this case law had dealt with the medicolegal questions raised by the Defendants’ motion in the immediate case.

44At the outset of the discussion and analysis of the Defendants’ motion for directions to be given the Class Counsel, it is necessary to differentiate the “private” communications and the “public” communications between a lawyer and a putative class member and a class member.

45Generally speaking, courts, including courts managing class action cases, do not regulate the private communications between the lawyers and clients or potential clients. The regulation of private communications is largely left to the legal profession’s regulator, the Law Society of Ontario. I do not propose to say more about the Law Society’s regulation but as already mentioned above some of the relevant rules of professional conduct may be found in Schedule “B” to these Reasons for Decision.

46This hands-off approach by the courts can be explained as a product of the circumstances that the court’s regulation of lawyers is more circumscribed and focuses on the administration of justice. Generally speaking, it is for the Law Society to regulate the relationship between lawyer and client. It is unprofessional for a lawyer to breach his or professional and ethical responsibilities, and the lawyer may be disciplined for doing so.

47As a matter of historical interest, the the Advisory Committee that reviewed the Ontario Law Commission’s report that studied class actions and that prepared draft class actions legislation for Ontario recommended that to accommodate the special circumstances of class actions, the Law Society of Upper Canada (now the Law Society of Ontario) should consider rule changes about professional obligations.⁵ However, the Law Society did not amend its Rules of Professional Conduct to specifically address the unique circumstances of a class proceeding.

48However, that is not to say that courts cannot and do not regulate the private communications between lawyers and clients. There are exceptions to a hands off approach that leaves the subject of communications between lawyers and clients to the Law Society. For present purposes, five exceptions come to mind.

a. First, and for present purposes, this is the least important exception, from time to time, there is a falling out between lawyer and client and there may be proceedings under the Rules of Civil Procedure for the formal severing of the relationship. In that context, the court may become privy to the private, confidential, and privileged communications between lawyer and client.⁶

b. Second, claims that a private communication is privileged are subject to court scrutiny during the discovery and interlocutory stages of a proceeding and at hearings and trials. There is a great deal of law about the various types of privilege, the exceptions to privilege, the ambit and duration of the privilege, and the waiver of privilege. I, therefore, disagree with Mr. Nardi’s submission that the court does not have the jurisdiction to regulate in the immediate circumstances. The real issue is whether it should exercise its jurisdiction both over the proceeding and over counsel, which are officers of the court subject to its supervision.

c. Third, when there is a settlement between some parties in a multiple part litigation and the settlement changes the adversarial landscape of the litigation, then there are duties to disclose what otherwise might be a privileged lawyer and client communication.⁷

d. Fourth, under the Class Proceedings Act, 1992, the court must approve any settlement, and it is typical to learn something about the internal communications between Class Counsel, the Representative Plaintiff and Class Members in the context of the settlement approval process. Of course, these disclosures of confidences are consensual by the client and thus the privilege associated with the communications will have been waived.

e. Fifth, from time to time, lawyers are sued for breach of fiduciary duty and or professional negligence, and those actions may involve lawyer and client communications. In this regard, it is important to keep in mind that under the common law and equity lawyers are exposed to claims for breach of fiduciary duty, breach of confidence, breach of contract, and for professional negligence. Thus, lawyers may be liable to their clients for: (a) for failing to disclose important information; (b) for breaching confidence; and (b) for negligent misrepresentations and for negligent legal advice.

49Turning to the regulation of public communications between lawyers and class members. Pursuant to the provisions of the Class Proceedings Act, 1992, the court regulates some of the public communications between the lawyers and the parties to the proceeding. Under the Class Proceedings Act, 1992, there are several public notices that are specified and regulated by the statute. The three most important official notices are:

a. the notice of certification, which regulates the rights of class members to opt-out of the class proceedings;

b. the notice of the settlement approval hearing, which regulates the class members’ rights to support or oppose the settlement; and

c. the notice of settlement approval, which regulates the class members’ rights to participate in the settlement.

50There are some public communications between lawyers and class members that are not regulated. Not every communication to members of the class needs to receive court approval.⁸ The lawyers and the parties are free to communicate to the public about a class proceeding, and a press release that provides information to the media that does not evade or undermine the formal notice requirements is not a notice regulated by the Class Proceedings Act, 1992.⁹

51Where notices are statutorily prescribed, the Class Proceedings Act, 1992 specifies the contents of the notices and provides some direction about the exercise of the court’s jurisdiction to approve notices. In addition to the factors identified by the legislation, courts may consider the emotive and adverse effects of the notice on the mental and physical health and the privacy concerns of the class members receiving the notice. For example, mental health and privacy concerns were paramount throughout my case management of the residential schools class action and particular care had to be taken not to revictimize, traumatize, or intrude on the privacy of the survivors. In cases involving notices involving dangerous medical products, judges have been cautious that the notices to the class be drafted with care so as to not to do harm as much as possible. In the immediate case, as noted above, it is the Defendant who is raising these adverse emotive and privacy concerns both for professed altruistic and non-altruistic reasons. While it was initially not clear, the Defendants’ concerns are about both public and private communications between Class Counsel and Class Members.

52Turning to the regulation of private communications between lawyers and class members in the context of class proceedings, there are three types of relationships between the lawyers and the parties, and depending upon the relationship between the communicator and his or her correspondent, there are three types of communications that may require court regulation and sometimes court supervision and intervention: namely:

a. First there are before certification communications between putative Class Counsel and putative class members. Before certification there there is a sui generis relationship between proposed class counsel and the putative class members that may impose some responsibilities on the proposed class counsel.¹⁰ Before certification, putative class members are not parties to the proceeding; however, they are not strangers or simply witnesses to a wrongdoing, because they are potential claimants and there is a potential lawyer and client relationship should certification be granted.

b. Second, there are post certification communications between Class Counsel and class members. After certification, there is a lawyer and client relationship between class counsel and the class members.¹¹

c. Third, there are before and after certification communications between defendants and putative class members or class members. A defendant may have a pre-existing and ongoing relationship with the class members, who may be the defendant’s customers, clients, investors, shareholders, suppliers, employees, franchisees, taxpayers, or patients, etc. Although once an action commences there is an opposing party relationship, depending upon the circumstances of the particular case, the defendant and its lawyer may have legitimate and proper reasons to communicate with the putative class members.

53In addressing the matter of communications with class members in these three situations, s. 12 of the Class Proceedings Act, 1992 empowers the court to make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination including regulating communications with class members.¹²

54In addition to the court’s power under s. 12 of the Class Proceedings Act, 1992, the court has an inherent power to control its own process, and the court may harness this power to supervise the conduct of a proposed class action in its pre-certification stages to make orders to protect putative class members.¹³

55In the context of class proceedings, the jurisprudence about communications amongst lawyers and putative class members and with class members has developed the following principles.

a. Both before and after certification, if there is evidence of inappropriate behaviour, the court can exercise its discretion and impose conditions on communications between the parties and class members to ensure the integrity of the class proceeding.¹⁴

b. When there is sufficient evidence of inappropriate behaviour or the need to ensure the integrity of the class proceeding, the court can impose conditions on communications between the parties and putative class members or class members.¹⁵

c. An order restricting communication by the defendant to class members is extraordinary;¹⁶ however, if communication by a defendant to a class member during the opt-out period is inaccurate, intimidating, or coercive, or is made for some other improper purpose aimed at undermining the process the court will, on the motion of a party or class member, intervene to ensure the fair determination of the class proceeding.¹⁷

d. A defendant personally – separately from the defendant’s lawyer - is entitled to communicate with putative class members as if they were non-parties, with the exception that the defendant may not communicate in a manner that would visit an injustice on the putative class members or would otherwise undermine the integrity of the class proceeding by disparaging the plaintiff or by intimidating the putative class members or class members to not support the class proceeding.¹⁸

e. Defence counsel may contact putative class members pre-certification to gather evidence and to make settlement offers.¹⁹

f. Where the certification of class proceedings is pending and the defendant is communicating with class members to make a settlement offer, the court may direct that before entering into any settlement, the defendant provide notice of the commencement of and the nature of the class proceeding.²⁰ The settlement offer should indicate that if the recipient signs the release, he or she may be prevented from participating in the class action. The notice may contain a proviso that the class member has a fixed time period to obtain legal advice about the class action and to resile from the settlement.²¹ A communication that could influence a putative class member settling or releasing the defendant must inform the putative class member about the existence of a class action or a potential class action.²² If the defendant fails to include this information in the offer, it may be ordered to do so pursuant to s. 19 of the Class Proceedings Act, 1992.²³

g. To comply with the Rules of Professional Conduct, defence counsel must make it clear to the putative class members that he or she is acting exclusively in the interests of the defendant.²⁴

h. An order restricting communication by the defendant during the opt-out period should only be granted if it is necessary to prevent a real and substantial risk to the fair determination of a class proceeding, because reasonably available alternative measures will not prevent the risk.²⁵

56As may be noted, the jurisprudence mainly focuses on communications between defendants and putative class members and class members. The case at bar is unusual precisely because it has a defendant asking the court to give directions, not about the defendant’s own communications, but about the communications of Class Counsel to Class Members. The Defendants’ motion in the immediate case is novel because it seeks to have the court exercise its regulatory authority over public and private communications in a new way in the context of class proceedings.

57In my opinion, however, in the immediate case, the directions sought are unjustifiable and unwarranted.

58In so far as the Defendants are motivated by altruism to protect the Class Members from any harm from communications from their own lawyers including the harm of incorrect medical advice, it is, to put it bluntly, none of the Defendants’ business.

59It is none of the Defendants’ business to involve themselves altruistically about the communications between the Class Counsel and Class Members regardless of whether those communications between Class Counsel and the Class Members are public, private, privileged, or non-privileged.

60Save for the official communications made pursuant to the several sections of the Class Proceedings Act, 1992 or pursuant to the Rules of Civil Procedure, in which the Defendants will have rights, it is none of a defendant’s concern or business to protect the Class Members from the effect of communications from Class Counsel.

61It is also none of the court’s business to involve itself altruistically to protect the Class Members from Class Counsel. It is not for the court to prescribe the content of, and it would be impossible for the court to supervise, private communications between Class Counsel and Class Members. If the communications between Class Counsel and the Class Members cause harm, then the court might get involved -later - if the client later decides to sue the lawyer for professional negligence, or breach of fiduciary duty, or with respect to the lawyer’s paid or unpaid accounts for legal services.

62With one notable exception, the court does not get involved to regulate the private legal relationship between Class Counsel and Class Members during class proceedings. The notable exception is that as a part of the settlement approval process and the related fee approval process, there is a potential conflict of interest between Class Counsel, who typically has far more to gain, than the individual Class Members, and the court is statutorily obliged to get involved as a part of the settlement and fee approval process. It is at that juncture that the court may hear from Class Members who object to the settlement. Communications with the Class Members is a factor in settlement and fee approval process.

63The case at bar is far from the settlement stage, and in any event, those is no reason or factual basis at this juncture of this particular class proceeding for the court to get involved for any altruistic reasons to protect the Class Members from the communications of Class Counsel. There is nothing in the public communications to date which are in any way inappropriate or could be regarded as fear mongering.

64In so far as the Defendants are motivated selfishly for their own purposes and insofar as the integrity of the class proceeding is concerned, the case at bar does not call for any intervention or involvement by the court. Class Counsel has been transparent in the sources of information and the court will eventually have to decide the contested scientific issues.

65In the immediate case, I do not believe, as Class Counsel believes, that the Defendants’ motion was designed to limit the number of Class Members making claims for compensation for mental harm. The Defendants were doing what defendants do, which is to minimize their exposure to liability.

66What I do believe is that Defendants were concerned about an increase in the number of Class Members making claims for mental harm caused - exclusively - by what Class Counsel may have said - after - the litigation was commenced. This is a concern that strikes me as very remote and unlikely, but if it is a concern, it is a matter to be determined at individual issues trials where the Defendant will get fair treatment and be able to make whatever specific causation arguments that the evidence allows. This concern does not merit preemptive measures.

67In any event, I do not believe that the court should or even could get involved in differentiating legal advice, medical advice, and medicolegal advice for Class Counsel. In the immediate case, from all appearances, Class Counsel is operating a law office and not a medical clinic providing medical treatment. Class Counsel is operating within the sphere of medicolegal advice.

68It is inevitable and necessary that there be communications between Class Counsel and class members about medicolegal matters. It would be impossible for Class Counsel to prove the class members’ and the representative plaintiff’s case without having these conversations, and it is no business of the defendant or the court for that matter to give directions about the content of those conversations and Class Counsel’s evidence gathering efforts.

69In a medicolegal action, it would be impossible for Class Counsel to fulfill its fiduciary obligations, contractual, and common law duties, if it was ordered to withhold the material medical information that is part and parcel of legal advice. It would be impossible for Class Counsel to do its job if, in the immediate case, the court would direct Class Counsel not to directly or indirectly provide medical advice, information, or opinions about the potential risk of developing an M. Chimaera infection, or the symptoms, latency, diagnosis, treatment, or potential outcomes of an M. Chimaera infection to the Class Members.

70I rather think that Class Counsel should be providing medicolegal advice without any assistance or direction form the court, but it is not the court’s business to ensure that Class Counsel does its job. And it is not the Defendant’s business to ask the Court to prescribe what it thinks Class Counsel should be saying to Class Members about the case and about how to marshal evidence for the case. The court has the jurisdiction to intervene, but intervention is not called for in the circumstances of the immediate case.

H. Conclusion

71For the above reasons, the Defendants’ motion is dismissed.

72If the parties cannot agree about the matter of costs, they may make submissions in writing, beginning with Mr. Nardi’s submissions within twenty days from the release of these Reasons for Decision, followed by the Defendants’ submissions within a further twenty days.

Perell, J.

Released: August 18, 2022

Schedule A- Excerpts Class Proceedings Act, 1992

Court may determine conduct of proceeding

12 The court, on its own initiative or on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a proceeding under this Act to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.

Notice of certification

17 (1) Notice of certification of a class proceeding shall be given by the representative party to the class members in accordance with this section.

Court may dispense with notice

(2) The court may dispense with notice if, having regard to the factors set out in subsection (3), the court considers it appropriate to do so.

Order respecting notice

(3) The court shall make an order setting out when and by what means notice shall be given under this section and in so doing shall have regard to,

(a) the cost of giving notice;

(b) the nature of the relief sought;

(d) the number of class members;

(e) the places of residence of class members; and

(f) any other relevant matter.

Means of giving notice

(4) The court may, for the purposes of subsection (3), order that notice be given by any of the following means or combination of the following means, and may order that notice be given to different class members by different means:

Personally or by mail.
By posting, advertising, publishing or leafleting.
By individual notice to a sample group within the class.
By any electronic means the court considers appropriate.
By any means that may be prescribed.
By any other means the court considers appropriate.

Contents of notice

(5) Unless the court orders otherwise, notice under this section shall,

(a) describe the proceeding, including the names and addresses of the representative parties and the relief sought;

(b) state the manner by which and time within which class members may opt out of the proceeding;

(d) summarize any agreements between representative parties and their solicitors respecting fees and disbursements;

(e) indicate whether there is a third-party funding agreement as defined in section 33.1 between the representative plaintiff and a funder and, if so, provide a description of the payment to which the funder is entitled under the agreement;

(f) describe any counterclaim being asserted by or against the class, including the relief sought in the counterclaim;

(g) state that the judgment, whether favourable or not, will bind all class members who do not opt out of the proceeding;

(h) describe the right of any class member to participate in the proceeding;

(i) provide contact information for a person or entity to whom class members may direct inquiries about the proceeding;

(j) include the prescribed information; and

(k) include any other information the court considers appropriate.

Court to consider circumstances

(6) The court shall make such orders under subsections (3), (4) and (5) as are necessary to ensure that the notice given is the best notice that is practicable in the circumstances.

Solicitations of contributions

(7) With leave of the court, notice under this section may include a solicitation of contributions from class members to assist in paying solicitor’s fees and disbursements.

Public Guardian and Trustee

(8) Notice ordered to be given under this section shall be served on the Public Guardian and Trustee if there is a reasonable possibility that the Public Guardian and Trustee is authorized to act on behalf of one or more class members.

Notice where individual participation is required

18 (1) When the court determines common issues in favour of a class and considers that the participation of individual class members is required to determine individual issues, the representative party shall give notice to those members in accordance with this section.

Order respecting notice

(2) The court shall make an order setting out when and by what means notice shall be given under this section, and in so doing shall have regard to the factors set out in subsection 17 (3).

Means of giving notice

(3) The court may, for the purposes of subsection (2), order that notice be given by any of the following means or combination of the following means, and may order that notice be given to different class members by different means:

By any means referred to in paragraphs 1 to 4 of subsection 17 (4).
By any means that may be prescribed.
By any other means the court considers appropriate.

Contents of notice

(4) Unless the court orders otherwise, notice under this section shall,

(a) state that common issues have been determined in favour of the class;

(b) state that class members may be entitled to individual relief;

(d) state that failure on the part of a class member to take those steps will result in the member not being entitled to assert an individual claim except with leave of the court;

(e) provide contact information for a person or entity to whom class members may direct inquiries about the proceeding;

(f) include the prescribed information; and

(g) include any other information the court considers appropriate.

Court to consider circumstances

(5) The court shall make such orders under subsections (2), (3) and (4) as are necessary to ensure that the notice given is the best notice that is practicable in the circumstances.

Notice to protect interests of affected persons

19 (1) At any time in a proceeding under this Act, the court may order any party to give such notice as it considers necessary to protect the interests of any class member or party, or to ensure the fair conduct of the proceeding.

Order respecting notice

(2) The court shall make an order setting out when and by what means notice shall be given under this section, and in so doing shall have regard to the factors set out in subsection 17 (3).

Means of giving notice

By any means referred to in paragraphs 1 to 4 of subsection 17 (4).
By any means that may be prescribed.
By any other means the court considers appropriate. 2020, c. 11, Sched. 4, s. 20.

Court to consider circumstances

(4) The court shall make such orders under subsections (2) and (3) as are necessary to ensure that the notice given is the best notice that is practicable in the circumstances.

Notices, general requirements

Plain language

20 (1) A notice under section 17, 18 or 19 shall be written in a plain language manner.

Bilingual

(2) A notice under section 17, 18 or 19 shall be written in English and in French, unless the court orders otherwise.

Court approval

(3) A notice under section 17, 18 or 19 shall be approved by the court before it is given.

Delivery of notice

21 The court may order a party to deliver, by whatever means are available to the party, the notice required to be given by another party under section 17, 18 or 19, where that is more practical.

Costs of notice

22 (1) The court may make any order it considers appropriate as to the costs of any notice under section 17, 18 or 19, including an order apportioning costs among parties.

Exception, costs of notice of certification

(1.1) Despite subsection (1), the costs of any notice under section 17 may be awarded to the representative plaintiff only in the event of success in the class proceeding, except to the extent the defendant consents to their payment in whole or in part at an earlier time, and, for greater certainty, shall not be ordered to be paid by the defendant at any earlier time in the proceeding absent the defendant’s consent.

Idem

(2) In making an order under subsection (1), the court may have regard to the different interests of a subclass.

Schedule “B” -The Law Society of Ontario’s Rules of Professional Conduct

73Communications between a lawyer and clients or potential clients, and between a lawyer and a represented or unrepresented person are regulated by the Law Society of Ontario under the Rules of Professional Conduct. Quite a few rules are relevant to this topic including the rules set out below:

1.1-1 In these rules, unless the context requires otherwise, …

“client” means a person who:

(a) consults a lawyer and on whose behalf the lawyer renders or agrees to render legal services; or

(b) having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on their behalf and includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client’s work;

Commentary

1A solicitor and client relationship may be established without formality.

2When an individual consults a lawyer in a representative capacity, the client is the corporation, partnership, organization, or other legal entity that the individual is representing.

3For greater clarity, a client does not include a near-client, such as an affiliated entity, director, shareholder, employee or family member, unless there is objective evidence to demonstrate that such an individual had a reasonable expectation that a lawyer-client relationship would be established.

“independent legal advice” means a retainer where

(a) the retained lawyer, who may be a lawyer employed as in-house counsel for the client, has no conflicting interest with respect to the client’s transaction,

(b) the client’s transaction involves doing business with

(i) another lawyer,

(ii) a corporation or other entity in which the other lawyer has an interest other than a corporation or other entity whose securities are publicly traded, or

(iii) a client of the other lawyer,

(d) the client has expressly waived the right to independent legal representation and has elected to receive no legal representation or legal representation from the other lawyer,

(e) the retained lawyer has explained the legal aspects of the transaction to the client, who appeared to understand the advice given, and

(f) the retained lawyer informed the client of the availability of qualified advisers in other fields who would be in a position to give an opinion to the client as to the desirability or otherwise of the proposed investment from a business point of view;

“independent legal representation” means a retainer where

(a) the retained lawyer, who may be a lawyer employed as in-house counsel for the client, has no conflicting interest with respect to the client’s transaction, and

(b) the retained lawyer will act as the client’s lawyer in relation to the matter;

Commentary

1Where a client elects to waive independent legal representation but to rely on independent legal advice only, the retained lawyer has a responsibility that should not be lightly assumed or perfunctorily discharged.

Encouraging Compromise or Settlement

3.2-4 A lawyer shall advise and encourage the client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and shall discourage the client from commencing or continuing useless legal proceedings.

Commentary

1It is important to consider the use of alternative dispute resolution (ADR). When appropriate, the lawyer should inform the client of ADR options and, if so instructed, take steps to pursue those options.

3.2-9.2 A lawyer who receives a medical-legal report from a physician or health professional containing opinions or findings that if disclosed might cause harm or injury to the client shall attempt to dissuade the client from seeing the report, but if the client insists, the lawyer shall produce the report.

3.2-9.3 Where a client insists on seeing a medical-legal report about which the lawyer has reservations for the reasons noted in rule 3.2-9.2, the lawyer shall suggest that the client attend at the office of the physician or health professional to see the report in order that the client will have the benefit of the expertise of the physician or health professional in understanding the significance of the conclusion contained in the medical-legal report.

Making Legal Services Available

4.1-1 A lawyer shall make legal services available to the public in an efficient and convenient way.

Restrictions

4.1-2 In offering legal services, a lawyer shall not use means

(a) that are false or misleading;

(b) that amount to coercion, duress, or harassment

(c) that take advantage of a person who is vulnerable or who has suffered a traumatic experience and has not yet had a chance to recover;

(d) that are intended to influence a person who has retained another lawyer for a particular matter to change their lawyer for that matter, unless the change is initiated by the person or the other lawyer; or

(e) that otherwise bring the profession or the administration of justice into disrepute.

Commentary

1A person who is vulnerable or who has suffered a traumatic experience and has not yet had a chance to recover may need the professional assistance of a lawyer, and this rule does not prevent a lawyer from offering their assistance to such a person. A lawyer is permitted to provide assistance to a person if a close relative or personal friend of the person contacts the lawyer for this purpose, and to offer assistance to a person with whom the lawyer has a close family or professional relationship. The rule prohibits the lawyer from using unconscionable or exploitive or other means that bring the profession or the administration of justice into disrepute.

MARKETING

Marketing of Professional Services

4.2-0 In this rule, "marketing" includes advertisements and other similar communications in various media as well as firm names (including trade names), letterhead, business cards and logos.

4.2-1 A lawyer may market legal services if the marketing

(a) is demonstrably true, accurate and verifiable;

(b) is neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive; and

Commentary

1Examples of marketing that may contravene this rule include

(a) stating an amount of money that the lawyer has recovered for a client or referring to the lawyer’s degree of success in past cases, unless such statement is accompanied by a further statement that past results are not necessarily indicative of future results and that the amount recovered and other litigation outcomes will vary according to the facts in individual cases;

(b) suggesting qualitative superiority to other lawyers;

(d) suggesting or implying the lawyer is aggressive;

(e) disparaging or demeaning other persons, groups, organizations or institutions;

(f) taking advantage of a vulnerable person or group;

(g) using testimonials or endorsements which contain emotional appeals.

Communications

7.2-4 A lawyer shall not in the course of professional practice send correspondence or otherwise communicate to a client, another legal practitioner, or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.

Communications with a Represented Person

7.2-6 Subject to rules 7.2-6A and 7.2-7, if a person is represented by a legal practitioner in respect of a matter, a lawyer shall not, except through or with the consent of the legal practitioner

(a) approach or communicate or deal with the person on the matter; or

(b) attempt to negotiate or compromise the matter directly with the person.

Second Opinions

7.2-7 A lawyer who is not otherwise interested in a matter may give a second opinion to a person who is represented by a legal practitioner with respect to that matter.

Commentary

1Rule 7.2-6 applies to communications with any person, whether or not a party to a formal adjudicative proceeding, contract, or negotiation, who is represented by a legal practitioner concerning the matter to which the communication relates. A lawyer may communicate with a represented person concerning matters outside the representation. This rule does not prevent parties to a matter from communicating directly with each other.

2The prohibition on communications with a represented person applies only where the lawyer knows that the person is represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation, but actual knowledge may be inferred from the circumstances. This inference may arise where there is substantial reason to believe that the person with whom communication is sought is represented in the matter to be discussed. Thus, a lawyer cannot evade the requirement of obtaining the consent of the other legal practitioner by closing their eyes to the obvious.

4Rule 7.2-7 deals with circumstances in which a client may wish to obtain a second opinion from another lawyer. While a lawyer should not hesitate to provide a second opinion, the obligation to be competent and to render competent services requires that the opinion be based on sufficient information. In the case of a second opinion, such information may include facts that can be obtained only through consultation with the first legal practitioner involved. The lawyer should advise the client accordingly, and if necessary consult the first legal practitioner unless the client instructs otherwise.

Unrepresented Persons

7.2-9 When a lawyer deals on a client’s behalf with an unrepresented person, the lawyer shall:

(a) [FLSC - not in use]

(b) take care to see that the unrepresented person is not proceeding under the impression that their interests will be protected by the lawyer; and

(c) take care to see that the unrepresented person understands that the lawyer is acting exclusively in the interests of the client and accordingly their comments may be partisan.

Commentary

1If an unrepresented person requests the lawyer to advise or act in the matter, the lawyer should be governed by the considerations outlined in these rules about joint retainers.

Footnotes

S.O. 1992, c. 6.
Nardi v. Sorin Group Deutschland GMBH, 2021 ONSC 3735.
Nardi v. Sorin Group Deutschland, GMBH 2022 ONSC 4126.
Del Giudice v. Thompson, 2021 ONSC 2206, leave to appeal ref’d 2021 ONSC 7413 (Div. Ct.); David v. Loblaw, 2018 ONSC 198; ALS Society of Essex County. Windsor (City), 2016 ONSC 676; de Muelenaere v. Great Gulf Homes Limited, 2015 ONSC 7442; 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279; Durling v. Sunrise Energy Group Inc., 2012 ONSC 6328; Lundy v. VIA Rail Canada Inc., 2012 ONSC 4152; White v. IKO Industries Ltd., 2010 ONSC 3920, [2010] O.J. No. 2954 (S.C.J.); Bartolome v. Mr. Payday Easy Loans Inc., 2008 BCSC 132, [2008] B.C.J. No. 167 (S.C.); Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.); Ward-Price v. Mariners Haven Inc. (2004), 2004 CanLII 13951 (ON SC), 71 O.R. (3d) 664 (S.C.J.); Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 (S.C.J.); Pearson v. Inco. (2001), 2001 CanLII 28084 (ON SC), 57 O.R. (3d) 278 (S.C.J.), leave to appeal refused [2002] O.J. No. 2134 (Div. Ct.); Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.); Atkinson v. Ault Foods Ltd., [1997] O.J. No. 4676 (Gen. Div.).
Ministry of the Attorney General, Report of the Advisory Committee on Class Action Reform (Toronto: Ministry of the Attorney General, 1990), p. 32.
In the context of class proceedings, an example of a plaintiff changing his Class Counsel is Fantl v. Transamerica Life Canada, 2008 CanLII 17304 (ON SC), [2008] O.J. No. 1536 (S.C.J.), leave to appeal granted [2008] O.J. No. 2593 (Div. Ct.), affd. [2008] O.J. No. 4298 (Div. Ct.), affd. 2009 ONCA 377.
+
1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.); Ward-Price v. Mariners Haven Inc. (2004), 2004 CanLII 13951 (ON SC), 71 O.R. (3d) 664 (S.C.J.).
Bywater v. Toronto Transit Commission (1999), 1999 CanLII 14779 (ON SC), 43 O.R. (3d) 367 (Gen. Div.).
Fantl v. Transamerica Life Canada, 2008 CanLII 17304 (ON SC), [2008] O.J. No. 1536 (S.C.J.), leave to appeal granted [2008] O.J. No. 2593 (Div. Ct.), affd. [2008] O.J. No. 4298 (Div. Ct.), affd. 2009 ONCA 377; Heron v. Guidant Corp., [2007] O.J. No. 3823 (S.C.J), leave to appeal to Div. Ct. refd., 2008 CanLII 204 (ON SCDC), [2008] O.J. No. 48 (Div. Ct).
Glover v. Toronto (City), 2009 CanLII 16740 (ON SC), [2009] O.J. No. 1523 (S.C.J.); Ward-Price v. Mariners Haven Inc., (2004), 2004 CanLII 13951 (ON SC), 71 O.R. (3d) 664 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada, (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.).
Pearson v. Inco. (2001), 2001 CanLII 28084 (ON SC), 57 O.R. (3d) 278 (S.C.J.), leave to appeal refused [2002] O.J. No. 2134 (Div. Ct.).
de Muelenaere v. Great Gulf Homes Limited, 2015 ONSC 7442; Fantl v. Transamerica Life Canada, 2008 CanLII 17304 (ON SC), [2008] O.J. No. 1536 (S.C.J.), leave to appeal granted [2008] O.J. No. 2593 (Div. Ct.), affd. [2008] O.J. No. 4298 (Div. Ct.), affd. 2009 ONCA 377; Fenn v. Ontario, 2004 CanLII 28170 (ON SC), [2004] O.J. No. 2736 (S.C.J.); Logan v. Canada (Minister of Health), 2004 CanLII 184 (ON CA), [2004] O.J. No. 2769 (C.A.).
1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.); Pearson v. Inco Ltd. (2001), 2001 CanLII 28084 (ON SC), 57 O.R. (3d) 278 (S.C.J.), leave to appeal ref’d [2002] O.J. No. 2134 (Div. Ct.); Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.); Atkinson v. Ault Foods Ltd., [1997] O.J. No. 4676 (Gen. Div.).
David v. Loblaw, 2018 ONSC 198; ALS Society of Essex County. Windsor (City), 2016 ONSC 676; de Muelenaere v. Great Gulf Homes Limited, 2015 ONSC 7442; Durling v. Sunrise Energy Group Inc. , 2012 ONSC 6328; Lundy v. Via Rail Canada Inc., 2012 ONSC 4152; Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 at para. 38 (S.C.J.); Pearson v. Inco Ltd., 2001 CanLII 28084 (ON SC), [2001] O.J. No. 4877 at para. 18 (Div. Ct..); Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.).
1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279; Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada, (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.).
Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.); Bartolome v. Mr. Payday Easy Loans Inc., 2008 BCSC 132, [2008] B.C.J. No. 167 (S.C.).
Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.); Ward-Price v. Mariners Haven Inc., (2004), 2004 CanLII 13951 (ON SC), 71 O.R. (3d) 664; 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.); Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 (S.C.J.); Pearson v. Inco Ltd., (2001), ] 2001 CanLII 28084 (ON SC), 57 O.R. (3d) 278 (S.C.J.), leave to appeal ref’d [2002] O.J. No. 2134 (Div. Ct.).
Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 (S.C.J.).
Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.).
White v. IKO Industries Ltd., 2010 ONSC 3920, [2010] O.J. No. 2954 (S.C.J.).
David v. Loblaw, 2018 ONSC 198.
White v. IKO Industries Ltd., 2010 ONSC 3920; Lewis v. Shell Canada Limited (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.).
Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 (S.C.J.).
1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279; Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.).

Footnotes

S.O. 1992, c. 6.
Nardi v. Sorin Group Deutschland GMBH, 2021 ONSC 3735.
Nardi v. Sorin Group Deutschland, GMBH 2022 ONSC 4126.
Del Giudice v. Thompson, 2021 ONSC 2206, leave to appeal ref’d 2021 ONSC 7413 (Div. Ct.); David v. Loblaw, 2018 ONSC 198; ALS Society of Essex County. Windsor (City), 2016 ONSC 676; de Muelenaere v. Great Gulf Homes Limited, 2015 ONSC 7442; 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279; Durling v. Sunrise Energy Group Inc., 2012 ONSC 6328; Lundy v. VIA Rail Canada Inc., 2012 ONSC 4152; White v. IKO Industries Ltd., 2010 ONSC 3920, [2010] O.J. No. 2954 (S.C.J.); Bartolome v. Mr. Payday Easy Loans Inc., 2008 BCSC 132, [2008] B.C.J. No. 167 (S.C.); Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.); Ward-Price v. Mariners Haven Inc. (2004), 2004 CanLII 13951 (ON SC), 71 O.R. (3d) 664 (S.C.J.); Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 (S.C.J.); Pearson v. Inco. (2001), 2001 CanLII 28084 (ON SC), 57 O.R. (3d) 278 (S.C.J.), leave to appeal refused [2002] O.J. No. 2134 (Div. Ct.); Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.); Atkinson v. Ault Foods Ltd., [1997] O.J. No. 4676 (Gen. Div.).
Ministry of the Attorney General, Report of the Advisory Committee on Class Action Reform (Toronto: Ministry of the Attorney General, 1990), p. 32.
In the context of class proceedings, an example of a plaintiff changing his Class Counsel is Fantl v. Transamerica Life Canada, 2008 CanLII 17304 (ON SC), [2008] O.J. No. 1536 (S.C.J.), leave to appeal granted [2008] O.J. No. 2593 (Div. Ct.), affd. [2008] O.J. No. 4298 (Div. Ct.), affd. 2009 ONCA 377.
+
1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.); Ward-Price v. Mariners Haven Inc. (2004), 2004 CanLII 13951 (ON SC), 71 O.R. (3d) 664 (S.C.J.).
Bywater v. Toronto Transit Commission (1999), 1999 CanLII 14779 (ON SC), 43 O.R. (3d) 367 (Gen. Div.).
Fantl v. Transamerica Life Canada, 2008 CanLII 17304 (ON SC), [2008] O.J. No. 1536 (S.C.J.), leave to appeal granted [2008] O.J. No. 2593 (Div. Ct.), affd. [2008] O.J. No. 4298 (Div. Ct.), affd. 2009 ONCA 377; Heron v. Guidant Corp., [2007] O.J. No. 3823 (S.C.J), leave to appeal to Div. Ct. refd., 2008 CanLII 204 (ON SCDC), [2008] O.J. No. 48 (Div. Ct).
Glover v. Toronto (City), 2009 CanLII 16740 (ON SC), [2009] O.J. No. 1523 (S.C.J.); Ward-Price v. Mariners Haven Inc., (2004), 2004 CanLII 13951 (ON SC), 71 O.R. (3d) 664 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada, (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.).
Pearson v. Inco. (2001), 2001 CanLII 28084 (ON SC), 57 O.R. (3d) 278 (S.C.J.), leave to appeal refused [2002] O.J. No. 2134 (Div. Ct.).
de Muelenaere v. Great Gulf Homes Limited, 2015 ONSC 7442; Fantl v. Transamerica Life Canada, 2008 CanLII 17304 (ON SC), [2008] O.J. No. 1536 (S.C.J.), leave to appeal granted [2008] O.J. No. 2593 (Div. Ct.), affd. [2008] O.J. No. 4298 (Div. Ct.), affd. 2009 ONCA 377; Fenn v. Ontario, 2004 CanLII 28170 (ON SC), [2004] O.J. No. 2736 (S.C.J.); Logan v. Canada (Minister of Health), 2004 CanLII 184 (ON CA), [2004] O.J. No. 2769 (C.A.).
1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.); Pearson v. Inco Ltd. (2001), 2001 CanLII 28084 (ON SC), 57 O.R. (3d) 278 (S.C.J.), leave to appeal ref’d [2002] O.J. No. 2134 (Div. Ct.); Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.); Atkinson v. Ault Foods Ltd., [1997] O.J. No. 4676 (Gen. Div.).
David v. Loblaw, 2018 ONSC 198; ALS Society of Essex County. Windsor (City), 2016 ONSC 676; de Muelenaere v. Great Gulf Homes Limited, 2015 ONSC 7442; Durling v. Sunrise Energy Group Inc. , 2012 ONSC 6328; Lundy v. Via Rail Canada Inc., 2012 ONSC 4152; Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 at para. 38 (S.C.J.); Pearson v. Inco Ltd., 2001 CanLII 28084 (ON SC), [2001] O.J. No. 4877 at para. 18 (Div. Ct..); Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.).
1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279; Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada, (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.).
Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.); Bartolome v. Mr. Payday Easy Loans Inc., 2008 BCSC 132, [2008] B.C.J. No. 167 (S.C.).
Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.); Ward-Price v. Mariners Haven Inc., (2004), 2004 CanLII 13951 (ON SC), 71 O.R. (3d) 664; 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 (S.C.J.) aff’d (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.), leave to appeal ref’d [2004] O.J. No. 2009 (C.A.); Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 (S.C.J.); Pearson v. Inco Ltd., (2001), ] 2001 CanLII 28084 (ON SC), 57 O.R. (3d) 278 (S.C.J.), leave to appeal ref’d [2002] O.J. No. 2134 (Div. Ct.).
Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 (S.C.J.).
Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.).
White v. IKO Industries Ltd., 2010 ONSC 3920, [2010] O.J. No. 2954 (S.C.J.).
David v. Loblaw, 2018 ONSC 198.
White v. IKO Industries Ltd., 2010 ONSC 3920; Lewis v. Shell Canada Limited (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.).
Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 (S.C.J.).
1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279; Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.).