Over the course of the past few months, some members of the profession have vented some of their frustrations with the ponderousness of the current civil litigation system, and the systemic delays resulting from excessive layers of bureaucracy and procedural hoop-jumping.
Those systemic delays are only a small part of the problem. Delays can also arise from a multitude of other factors, including scarce financial resources that may slow the progress of “pay as you go” litigation, and the massive undertaking that is the e-discovery review and winnowing process. However, litigants bringing multiple interlocutory motions, rather than pressing on to the finish, line is often the major source of delay.
Ironically, in some class actions, multi-year-long delays result from a multiplicity of motions, which are the unanticipated or unintended consequence of the complexity and the novelty of the claims that litigants are now able to pursue through the class action process; claims that previously would never have seen the inside of a courtroom because the economics of pursuing the claims would have been insurmountable. While the claim may be through the courthouse door, it can take years before the merits of the claim are adjudicated. Taylor v. Canada (Attorney General) is a case in point.
Taylor has been languishing in motions purgatory since shortly after it began in 1999. Thirteen years later, it is still in the early stages. Despite the action being certified in 2007, the Crown has engaged in serial motion attempts to derail the lawsuit by repeated challenges to the cause of action pleaded. While the finish line is still well beyond the horizon, one might hope that following the recent ruling from a five-judge panel of the Ontario Court of Appeal, the parties will now be able to get on with discoveries, and proceed to trial.
This class proceeding was originally commenced by another individual, Judith Logan, on behalf of individuals who have suffered debilitating pain and suffering arising from the degradation of implants placed into their temporomandibular joints (TMJ). The claim alleged that Health Canada was negligent in exercising its responsibilities under the Food and Drugs Act, R.S.C. 1985, c. F-27 and in particular that it failed to meet the requisite standard of care to protect the class from unsafe medical devices, and failed to warn of known dangers from the use of these devices.
Originally the claim was asserted on behalf of all individuals who had received any form of TMJ implant, but through a series of motions, appeals, and pleadings amendments, the claim was narrowed so that it is presently asserted only on behalf of those individuals who were implanted with a “Vitek” brand of TMJ implant.
The path to trial in this case has been unusually tortured. The scope of the claim as originally pleaded was very ambitious. It sought to assert claims against the Crown in respect of every kind of TMJ implant going back to 1968, and included claims for breach of fiduciary duty and under s. 7 of the Charter, in addition to the claim in negligence.
The negligence claim is also unique. Typically an individual duty of care will not be imposed upon the government carrying out its regulatory functions — the requisite element of proximity is missing, and there are overarching policy considerations that will negate a direct duty of care to the citizenry. Yet, here, the plaintiff claimed that Health Canada was negligent in carrying out its regulatory duties and in failing to warn the class of the known risks of using the implants. From the outset, the Crown has challenged the negligence claim and asserted that no private duty of care exists. (Read more on this issue here)
A partial procedural history in Taylor and the related case Drady v. Canada (Minister of Health) includes:
• multiple amendments to the statement of claim;
• a motion to remove Logan as representative plaintiff and to replace her with Taylor and another individual, Kevan Drady, and an appeal from that order;
• motions to separate the Drady claim from the Taylor claim;
• a motion by the Crown to strike parts of the amended claim in Taylor;
• motions by third parties in Drady to strike the claims brought against them by the Crown, and by Drady to stay the third-party claim, and appeals therefrom;
• a motion by the Crown in Drady to strike the claim as disclosing no reasonable cause of action, an appeal therefrom, and a motion for leave to appeal to the Supreme Court;
• the motion for certification as a class action in Taylor, and a motion for leave to appeal therefrom; and
• a motion for decertification of Taylor following the Court of Appeal decision upholding the motion to strike the Drady claim as disclosing no reasonable cause of action.
The Crown intended to seek leave to appeal the denial of the decertification motion. However, in a stroke of procedural genius, and recognizing the extreme delays the case had already endured and would continue to suffer in wrangling over the fundamental issue of whether Taylor’s claim was tenable at law, the parties agreed to have the issue referred to the Court of Appeal as a special case under Rule 22.03.
On July 6, 2012, the special case was decided in favour of the class. Justice David Doherty, on behalf of a five-member panel held, “it is not plain and obvious that the claim as pleaded is bound to fail for want of a private law duty of care. The courtroom door cannot be closed to Ms. Taylor and the other members of the class at this stage.”
While the courtroom door has not been closed to the Taylor class, they are still a long way down the corridor. How long before this action is actually heard, and the class actually obtains access to the justice that they have been seeking for over a decade, remains to be seen. Hopefully, the good sense and results-oriented strategy that the parties employed in agreeing to proceed by stated case will continue to prevail, and the parties can all enjoy their day inside the courtroom in the not to distant future.