Guidant Corp. et al. v. LeFrancois et al., (2009) 245 O.A.C. 213 (DC)

JudgeFerrier, J.
CourtSuperior Court of Justice of Ontario (Canada)
Case DateDecember 08, 2008
JurisdictionOntario
Citations(2009), 245 O.A.C. 213 (DC)

Guidant Corp. v. LeFrancois (2009), 245 O.A.C. 213 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JA.106

Guidant Corporation et al. v. Adrien LeFrancois et al.

(DC-08-0000404-00ML)

Indexed As: Guidant Corp. et al. v. LeFrancois et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Ferrier, J.

January 6, 2009.

Summary:

Six patients and five members of their families sued LeFrancois and other defendants in respect of their alleged negligence and conspiracy relating to their development, marketing and sale of defibrillators. They moved for certification of the action under the Class Proceedings Act (Ont.).

The Ontario Superior Court, per Cullity, J., in a decision reported [2008] O.T.C. Uned. A21, granted an order certifying the proceeding. The defendants sought leave to appeal pursuant to rule 62.02(4)(a) and (b) of the Rules of Civil Procedure.

The Ontario Divisional Court, per Ferrier, J., denied leave to appeal. There was no conflicting decision by another judge or court in Ontario or elsewhere on the matters involved in the proposed appeal. Nor was there good reason to doubt the correctness of the order.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - Six patients and five members of their families sued LeFrancois and other defendants in respect of their alleged negligence and conspiracy relating to their development, marketing and sale of defibrillators - They moved for certification of the action under the Class Proceedings Act (Ont.) - Cullity, J., granted the order - The defendants sought leave to appeal pursuant to rule 62.02(4)(a) and (b) of the Rules of Civil Procedure - They argued that there were conflicting decisions concerning the scrutiny to be applied to the pleadings, when considering s. 5(1)(a) of the Act - The Ontario Divisional Court, per Ferrier, J., denied leave - There was a clear line of authority that s. 5(1)(a) would be satisfied unless it was plain and obvious that no cause of action was disclosed by the statement of claim - "If the claims could, in law, succeed on the basis of the material facts pleaded, then this section is satisfied. Where the law is not fully settled, no finding to the contrary should be made at this stage" - Furthermore, Cullity, J., had correctly applied the law of the province - His decision in this respect was not open to "very serious debate" - The defendants failed on this point under rule 62.02(4)(a) and (b) - See paragraphs 8 to 11.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - Six patients and five members of their families sued LeFrancois and other defendants in respect of their alleged negligence and conspiracy relating to their development, marketing and sale of defibrillators - They moved for certification of the action under the Class Proceedings Act (Ont.) - Cullity, J., granted the order - The litigation plan provided for a reference, pursuant to s. 25, to determine individual issues - The defendants sought leave to appeal pursuant to rule 62.02(4)(a) and (b) of the Rules of Civil Procedure, submitting, inter alia, that such a proceeding was not contemplated by s. 25 when read in conjunction with rules 54 and 55 - The Ontario Divisional Court, per Ferrier, J., denied leave - The defendants' submissions ignored rule 54.01(b) providing that "Rules 54 and 55 apply to references directed under a statute, subject to the provisions of the statute" - Section 25 prevailed over the rules - It was clearly within Cullity, J.'s, discretion to approve a plan which included provisions for a reference - Further, the defendants' position was negated by the Court of Appeal decisions "Webb" (2004), and "Cussano" (2007) - Thus, there was no reason to doubt the correctness of the decision giving effect to s. 25 - There were no conflicting decisions - The defendants failed on this point under rule 62.02(4)(a) and (b) - See paragraphs 12 to 21.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - Six patients and five members of their families sued LeFrancois and other defendants in respect of their alleged negligence and conspiracy relating to their development, marketing and sale of defibrillators - They moved for certification of the action under the Class Proceedings Act (Ont.) - Cullity, J., granted the order - The litigation plan provided for a reference to determine individual issues of liability, causation and assessment of damages - The defendants sought leave to appeal pursuant to rule 62.02(4)(a) and (b), arguing, inter alia, that such a procedure was inappropriate to deal with issues of liability in complex cases, and was unfair - The Ontario Divisional Court, per Ferrier, J., denied leave to appeal - The plaintiffs referred to certification in cases of alleged failed medical devices, as well as other products liability cases involving personal injuries - Furthermore, in at least two previous cases, the litigation plans included provisions for references - "This issue of fairness has been canvassed thoroughly in earlier cases of products liability with personal injury, including those cases where references were provided for. ... [L]itigation plans, including those with provisions for references, bring with them a full range of flexibility and possible revision. They embody full powers of discretion to be exercised to protect the procedural fairness rights of all parties" - See paragraphs 22 to 26.

Cases Noticed:

Anderson et al. v. Wilson et al. (1999), 122 O.A.C. 69; 44 O.R.(3d) 673 (C.A.), leave to appeal refused (2000), 258 N.R. 194; 138 O.A.C. 200 (S.C.C.), refd to. [para. 3].

Carom et al. v. Bre-X Minerals Ltd. et al. (2000), 138 O.A.C. 55; 51 O.R.(3d) 236 (C.A.), refd to. [para. 4].

Peter et al. v. Medtronic Inc. et al., [2007] O.T.C. Uned. Q16 (Sup. Ct.), leave to appeal refused [2008] O.A.C. Uned. 301 (Div. Ct.), refd to. [para. 5].

Mignacca v. Merck Frosst Canada Ltd. et al., [2008] O.T.C. Uned. P65 (Sup. Ct.), refd to. [para. 6].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201 (C.A.), refd to. [para. 7].

Hoffman et al. v. Monsanto Canada Inc. et al., [2007] 6 W.W.R. 387; 293 Sask.R. 89; 397 W.A.C. 89; 283 D.L.R.(4th) 190; 2007 SKCA 47, refd to. [para. 8].

Cole et al. v. Prairie Centre Credit Union Ltd. et al., [2008] 1 W.W.R. 115 (Sask. Q.B.), refd to. [para. 8].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 43 C.P.C.(2d) 105, refd to. [para. 8].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 8].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 247 D.L.R.(4th) 667; 73 O.R.(3d) 401 (C.A.), leave to appeal refused (2005), 344 N.R. 192; 207 O.A.C. 400 (S.C.C.), refd to. [para. 8].

Williams v. Mutual Life Assurance Co. of Canada et al. (2003), 170 O.A.C. 165; 226 D.L.R.(4th) 112 (C.A.), refd to. [para. 9].

Kumar v. Mutual Life Assurance Co. of Canada - see Williams v. Mutual Life Assurance Co. of Canada et al.

Ash v. Lloyd's Corp. (1992), 8 O.R.(3d) 282 (Gen. Div.), refd to. [para. 11].

Webb v. 3584747 Canada Inc. (2004), 183 O.A.C. 155; 69 O.R.(3d) 502 (C.A.), refd to. [para. 17].

Cassano et al. v. Toronto-Dominion Bank (2007), 230 O.A.C. 224; 87 O.R.(3d) 401 (C.A.), leave to appeal refused (2008), 386 N.R. 389 (S.C.C.), refd to. [para. 17].

Ford Motor Co. of Canada Ltd. v. Municipal Employees' Retirement Board (Ont.) et al. (2006), 206 O.A.C. 61; 79 O.R.(3d) 81 (C.A.), dist. [para. 20].

Mignacca v. Merck Frosst Canada Ltd. et al., [2008] O.J. No. 2996, leave to appeal denied [2008] O.T.C. Uned. P65 (Sup. Ct.), refd to. [para. 23].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 25(1), sect. 25(2), sect. 25(3) [para. 14].

Rules of Civil Procedure (Ont.), rule 54.01(b) [para. 14]; rule 62.02(4)(a) [para. 10]; rule 62.02(4)(b) [para. 11].

Counsel:

Harvey T. Strosberg, James Newland and Rebecca Case, for the respondents/plaintiffs;

John A. Campion, Paul J. Martin and Sarah A. Armstrong, for the applicants/defendants.

This motion was heard on December 8, 2008, by Ferrier, J., of the Ontario Divisional Court, who released the following endorsement on January 6, 2009.

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1 practice notes
  • Fresco v. Canadian Imperial Bank of Commerce, 2010 ONSC 4724
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • September 10, 2010
    ...et al. v. Medtronic Inc. et al., [2007] O.T.C. Uned. Q16 (Sup. Ct.), refd to. [para. 168]. Guidant Corp. et al. v. LeFrancois et al. (2009), 245 O.A.C. 213 (Div. Ct.), refd to. [para. Peter et al. v. Medtronic Inc. et al., [2008] O.A.C. Uned. 301 (Div. Ct.), refd to. [para. 195]. Western Ca......
1 cases
  • Fresco v. Canadian Imperial Bank of Commerce, 2010 ONSC 4724
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • September 10, 2010
    ...et al. v. Medtronic Inc. et al., [2007] O.T.C. Uned. Q16 (Sup. Ct.), refd to. [para. 168]. Guidant Corp. et al. v. LeFrancois et al. (2009), 245 O.A.C. 213 (Div. Ct.), refd to. [para. Peter et al. v. Medtronic Inc. et al., [2008] O.A.C. Uned. 301 (Div. Ct.), refd to. [para. 195]. Western Ca......

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