Scott Maidment

This decision concerns a class action brought by victims and families of the 2018 Danforth Avenue shooting against Smith & Wesson Corp., alleging negligence for failing to implement authorized user technology in its handguns.

The Court of Appeal for Ontario held that the plaintiffs’ negligence claim should proceed as a class action, finding that the claim disclosed a reasonable cause of action and that the certification judge erred by applying a merits-based test at the certification stage.

The court struck the strict liability and public nuisance claims, holding that Canadian law does not recognize such claims against product manufacturers in these circumstances.

This addendum to a costs decision addresses two requested corrections: one regarding a consent order on costs for a motion to be in the cause of the certification motion, and another clarifying the actual amount of partial indemnity costs requested by the plaintiffs.

The court acknowledged the factual corrections but affirmed that these changes do not alter the original exercise of discretion regarding costs.

The moving party brought a motion for leave to appeal an order dated February 11, 2021.

The Divisional Court granted the motion for leave to appeal on consent, with costs of the leave motion in the cause of the appeal.

The plaintiffs sought to certify a class action against Smith & Wesson for design negligence following the Danforth Shooting, where a stolen M&P®40 handgun without "authorized user" (smart gun) technology was used to kill and injure multiple people.

The plaintiffs argued that Smith & Wesson was negligent in failing to incorporate authorized user technology into the handgun's design.

The court dismissed the certification motion, finding that the plaintiffs failed to satisfy the common issues and preferable procedure criteria.

Specifically, the plaintiffs did not provide expert evidence from a firearm design expert to establish some basis in fact that the absence of authorized user technology constituted a design defect, or that an alternative design was feasible without impairing the handgun's utility for its intended military and police users.

The plaintiff brought a proposed class action against numerous pharmaceutical manufacturers and distributors regarding the marketing and sale of opioids in Canada.

The defendants moved to strike the statement of claim for failing to disclose a reasonable cause of action, and one defendant, Pro Doc Limitée, moved to dismiss the action against it for lack of jurisdiction.

The court granted Pro Doc's jurisdiction motion, finding no real and substantial connection to Ontario.

The court struck the claims against the distributor defendants without leave to amend, finding no viable cause of action.

The court found that while there were viable causes of action against the manufacturer defendants for breach of the Competition Act, negligent misrepresentation, fraudulent misrepresentation, and failure to warn, the plaintiff's pleading was defective.

The court struck the claims against the manufacturer defendants with leave to amend to join representative plaintiffs for each defendant group and to comply with the rules of pleading.

The plaintiffs in a proposed class action brought two motions: one seeking leave to file third and fourth supplementary affidavits from an expert, Dr. Jooyoung Lee, and another compelling the defendant, Smith & Wesson Corp., to provide answers and documents from a cross-examination.

The court dismissed both motions, finding that the supplementary affidavits were not relevant to the certification criteria and that the requested discovery questions were primarily merits inquiries or fishing expeditions, disproportionate to the needs of the certification motion.

The plaintiff, Dr. Darryl Gebien, sought court approval for a Third-Party Funding Agreement with Omni Bridgeway Ltd. for a proposed class action against numerous pharmaceutical companies regarding the opioid crisis.

Several defendants objected to specific provisions of the agreement, including those related to amendments, assignments, attornment, costs enforcement, termination procedures, accrued costs, and confidentiality.

The court found that while the agreement generally met the requirements for approval, several of the defendants' objections, particularly concerning comprehensive attornment by Omni Bridgeway Ltd. and the broad confidentiality provisions, were "genuinely meaningful" and required resolution.

The motion for approval was adjourned to allow the parties to address these issues, with the court emphasizing that it is not its role to draft the agreement.

The defendants in a proposed opioid class action moved to dismiss the proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

In response, the plaintiff brought a cross-motion for a nunc pro tunc timetable order and commenced parallel proceedings in Manitoba.

The parties reached a settlement wherein the competing motions were dismissed without costs, the Manitoba proceedings would be discontinued, and the Ontario action would be deemed commenced on October 2, 2020, making it subject to the amended certification test under the Smarter and Stronger Justice Act, 2020.

The court approved the settlement and issued the consent orders.

In a proposed class action against a firearm manufacturer for design negligence following a mass shooting, the defendant moved to strike portions of the plaintiffs' layperson affidavit evidence filed for the certification motion.

The impugned evidence included foreign patents for 'smart gun' technology and firearm-related crime statistics.

The court granted the motion to strike, finding that expert evidence in handgun design was required to establish some basis in fact for the design negligence claim, and a layperson could not provide the necessary factual logic or theory.

The court granted the plaintiffs leave to file additional expert evidence and rescheduled the certification motion.

The plaintiffs moved for an order staying or adjourning the defendant's motion for leave to appeal a case management judge's decision on a Rule 21 motion.

The Rule 21 motion was heard together with the first stage of a bifurcated certification motion in a proposed class proceeding arising from a mass shooting.

The Divisional Court applied the RJR MacDonald test under section 106 of the Courts of Justice Act and granted the stay, finding that the balance of convenience favoured postponing the leave motion until after the second stage of the certification motion was decided to avoid a multiplicity of proceedings.

The plaintiffs brought a motion on consent for an order approving the discontinuance of a proposed class action without costs.

The action alleged that the defendants breached a duty to warn about the risks of excessive bleeding associated with the anticoagulant drug Pradaxa.

Following the dismissal of the certification motion and subsequent appeals, the action remained dormant.

The court approved the discontinuance under section 29 of the Class Proceedings Act, 1992, finding no reason to refuse the request and no need to impose terms.

The plaintiff sought court approval to dismiss his proposed class action regarding the recalled drug Valsartan.

Following a carriage agreement with another class action and discovering that one defendant did not manufacture the active ingredient, the plaintiff sought to dismiss the action against all defendants without costs.

The court approved the dismissal under section 29 of the Class Proceedings Act, 1992, finding no prejudice to putative class members as other actions were proceeding across Canada.

The plaintiff sought approval of a class action settlement regarding allegations that the defendants' premium pet food products did not always contain the advertised premium ingredients.

The settlement provided for nominal individual compensation to registered class members, a cy-près payment of $375,968 to veterinary schools and an animal charity, and injunctive relief ensuring product specifications match packaging claims.

The court approved the settlement as fair and reasonable, noting the benefits outweighed the risks of continued litigation.

The court also approved class counsel fees of $295,000 and a $5,000 honorarium for the representative plaintiff, both to be paid separately by the defendants.

The plaintiff brought a motion to certify the action as a class proceeding for the purposes of settlement.

The proposed settlement involved modest payments to registered class members without a claims process, and cy pres payments to universities researching pet health.

The court found the streamlined process fair and reasonable, certified a national class, and approved the notice process and schedule for the settlement approval hearing.

The plaintiffs commenced a proposed class action against the manufacturer of a handgun used in a mass shooting, alleging negligent design, public nuisance, and strict liability for failing to incorporate authorized user ('smart gun') technology.

The defendant moved to strike the statement of claim under Rule 21 for disclosing no reasonable cause of action.

The court dismissed the motion regarding the negligence claim, finding it fell within the established duty of care categories for goods dangerous per se and products liability.

However, the court struck the claims for public nuisance and strict liability, concluding they were legally untenable in the context of product liability.

This proposed class action, alleging human rights abuses in chocolate manufacturing, was commenced in Ontario.

The plaintiff also initiated a similar lawsuit in British Columbia.

The defendant, Hershey Canada Inc., brought a motion for an anti-suit injunction to stay the B.C. action.

Concurrently, the plaintiff sought the court's permission under section 29 of the Class Proceedings Act to discontinue the Ontario action, citing funding difficulties and B.C.'s no-costs jurisdiction.

The court, acting as case management judge, determined that both the anti-suit injunction motion and the discontinuance motion should be heard on the same day to address the issue of where the class action should proceed.

The decision outlines the scheduling for these motions, with the anti-suit injunction to be heard first.

The appellant appealed the dismissal of his motion to certify a class action against a smartphone manufacturer regarding a product recall.

The Divisional Court upheld the motion judge's findings that the pleadings failed to disclose a viable cause of action due to lack of particulars and lack of contractual privity.

The court also agreed that the appellant failed to establish common issues, as the expert evidence on damages was not grounded in the facts of the case and individual trials would be necessary to determine harm.

The appeal was dismissed.

This initial case conference for a proposed class action addressed the scheduling of proceedings leading to a certification motion.

The primary issue was whether the defendant's challenge to the plaintiff's cause of action should proceed as a pre-certification motion under Rule 21 of the Rules of Civil Procedure or be raised within the certification motion under section 5(1)(a) of the Class Proceedings Act.

The court, emphasizing the avoidance of 'litigation by instalments,' determined that the cause of action challenge should be made during the certification motion to prevent piecemeal litigation and potential delays from pre-certification appeals.

A schedule for the certification motion was subsequently set.

This is a proposed class action seeking certification against Samsung Electronics Canada Inc. regarding allegedly defective Galaxy Note7, S7, and S7 Edge smartphones.

The plaintiff alleged misrepresentation, breach of consumer protection and sale of goods acts, negligence, unjust enrichment, and waiver of tort, claiming inadequate compensation for losses from a recall program.

The court dismissed the motion for certification, finding that the misrepresentation and statutory claims lacked contractual privity between the manufacturer and consumers, and were inadequately pleaded.

Claims for data loss and pain and suffering were deemed highly individualized, lacking commonality.

Furthermore, the plaintiff's expert failed to establish a credible methodology for class-wide damages.

The court concluded that a class action was not the preferable procedure, given Samsung's voluntary compensation program which addressed access to justice and behaviour modification concerns.

The plaintiff brought a motion to validate service of a statement of claim on the defendant Cronnox as of April 30, 2014.

Cronnox consented, but two non-parties—Cronnox's insurer (who denied coverage) and Cronnox's former lawyer—opposed the motion, arguing service occurred later, which would affect limitation periods for third-party claims and a related coverage dispute.

The court held the non-parties lacked standing as their economic interests were not directly affected by the order.

Regardless, the court found service was properly effected on April 30, 2014, and validated it accordingly.