Sonia Lynn Bjorkquist

This is a motion to discontinue a proposed class action concerning automobile airbags that had been recalled.

The action, which had not been certified, sought compensation for pure economic loss.

Due to developments in case law, particularly the Supreme Court of Canada's clarification on pure economic loss for defective products, the litigation risk increased, and the prospects for certification and substantial economic recovery diminished.

Class Counsel sought leave to discontinue the action with prejudice and without costs.

The court granted the motion, finding that the action was commenced for a proper purpose, the test for discontinuance was satisfied, and putative class members were not prejudiced, as limitation periods remained suspended.

The applicant sought to overturn an arbitrator's decision assuming jurisdiction over a business dispute between co-tenants of a real estate development project.

The parties were deadlocked on whether the project should include a hotel component.

The arbitrator found he had jurisdiction under a broad arbitration clause.

The Superior Court of Justice held that the dispute was a non-legal business decision that did not arise under the agreement, as the agreement required unanimous decision-making and did not provide a standard of review for this type of dispute.

The court set aside the arbitrator's decision, finding he lacked jurisdiction.

The plaintiffs brought a motion for approval of a $21.5 million settlement agreement in a class action regarding transvaginal mesh medical devices manufactured by the defendants.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting it was the product of arm's length negotiations and offered good monetary compensation.

The court also approved the distribution plan, class counsel's fee request of $5.375 million plus disbursements, and honoraria of $10,000 for each representative plaintiff.

Following the successful certification of a class action regarding transvaginal mesh devices, the plaintiffs sought costs of $900,000 on a partial indemnity basis.

The certification motion was heard in two phases, with the first phase adjourned to allow the plaintiffs to gather additional evidence.

The court found that the plaintiffs were the successful party and entitled to costs.

However, recognizing that the defendants should not have to pay for the plaintiffs' 'education' from the first phase unless the defendants are ultimately found culpable, the court awarded $425,000 payable forthwith (accounting for a $25,000 deduction for an abandoned motion) and $450,000 payable in any event of the cause.

This decision concerns a resumed certification motion for a proposed class action against Boston Scientific Ltd. and Boston Scientific Corporation regarding transvaginal mesh medical devices.

The plaintiffs, Susan and Darin Vester, alleged negligent design and failure to warn.

Following an initial adjournment due to a lack of common issues, new expert evidence was presented demonstrating a "some-basis-in-fact" for common issues related to the degradation of the polypropylene mesh (HGX-030-01) and the inadequacy of warnings in the Directions For Use (DFU).

The court found that the new evidence sufficiently identified a discrete defect common to all devices and a plausible medical theory of harm, satisfying the common issues and preferable procedure criteria.

The motion to certify the class action was granted.

The plaintiffs sought certification of a proposed national class action alleging negligent design and failure to warn in relation to transvaginal mesh medical devices used to treat stress urinary incontinence and pelvic organ prolapse.

The court held that the pleadings disclosed viable causes of action and that the proposed class definition satisfied the identifiable class requirement under the Class Proceedings Act, 1992.

However, the plaintiffs failed to establish some-basis-in-fact for common issues, particularly because no specific design defect in the polypropylene mesh or common inadequacy in the warnings across nine different products was identified.

The evidence demonstrated significant variation among the devices, their uses, and potential complications, undermining commonality.

The certification motion was therefore adjourned under s. 5(4) of the Act to allow the plaintiffs an opportunity to amend their materials and provide further evidence supporting common issues.

The defendants sought leave to appeal a Master's decision ordering them to answer certain discovery questions.

The plaintiff, a former CEO of Symcor, claimed a 10% equity interest based on his employment agreement.

The defendants argued the agreement was unenforceable.

During discovery, the defendants refused to answer questions regarding the drafting of a subsequent shareholders' agreement, claiming solicitor-client privilege.

The Master ordered the questions answered, finding no privilege or that privilege was waived.

The Divisional Court granted leave to appeal for Symcor regarding certain questions, finding good reason to doubt the Master's decision on privilege, but denied leave for the Banks and other questions.