Canadian Appeals Monitor Information and Commentary on Upcoming and Recent Appeal Court Decisions

Category Archives: Health

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The SCC Monitor (18/06/2015)

A Commentary on Recent Legal Developments by the Canadian Appeals Monitor

Posted in Civil Procedure/Evidence, Class Actions, Health, The SCC Monitor

The Supreme Court of Canada has recently dismissed two leave applications and granted leave in one case that will be of interest to our readers. These cases touch on: case management and civil procedure in class actions (including when parent companies may be joined in an action); the standard of review and standing of administrative boards and tribunals; and interpretation of the federal Interest Act in regards to mortgage incentives and penalties.… Continue Reading

The Supreme Court of Canada Upholds Ontario Laws Banning Pharmacies from Selling Private-Label Generic Drugs in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care)

Posted in Case Comments, Health, Manufacturing


In Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), the Supreme Court of Canada unanimously upheld the validity of regulations under the Drug Interchangeability and Dispensing Fee Act (DIDFA) and the Ontario Drug Benefit Act (ODBA). The regulations at issue were amended in 2010 to stop pharmacies from controlling manufacturers that sell generic drugs that they do not make themselves, on the rationale that if pharmacies control manufacturers, this would keep drug prices high. Under these regulations, a pharmacy cannot sell “private label” drugs – these are generic drugs that a manufacturer under the pharmacy’s control

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Is Repetition the Sincerest Form of Flattery? The Supreme Court’s Decision in Cojocaru v. British Columbia Women’s Hospital and Health Centre

Posted in Case Comments, Health, Professions


The Supreme Court has rendered its decision in Cojocaru v. British Columbia Women’s Hospital and Health Centre, a case concerned with the propriety of judicial adoption verbatim of counsel’s submissions in the Court’s decision. Beyond the issue of when extensive incorporation of a party’s submission into a judicial decision rebuts the presumption of judicial integrity and impartiality, the decision illustrates the difference between judicial writing and other forms of written expression. Unlike academic, artistic or scientific writing, judicial prose is not required, or indeed expected, to be original. All that is required is that the reasons demonstrate that

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Quebec Court of Appeal Confirms the Decision to Deny Certification of a Drug Related Class Action

Posted in Case Comments, Class Actions, Health

Different times call for different measures, and the jurisprudence governing Quebec class actions is no exception to this rule. While 2011 and the beginning of 2012 brought waves of decisions in favour of certification, the end of 2012 seemed to bring more circumspection.

This trend seems to continue in 2013, notably in a decision rendered in January in the case of Option Consommateurs v. Merck & Co. Inc. The Court of Appeal of Quebec followed a guarded approach in this drug related class action, refusing certification because there was insufficient evidence to demonstrate occurrences of a known, but rare … Continue Reading

Ontario Divisional Court Upholds Denial of Certification of Pharmaceutical Class Action Against AstraZeneca

Posted in Case Comments, Class Actions, Health

In a rare and dramatic oral ruling from the bench, the Ontario Divisional Court yesterday upheld the May 7, 2012 decision of Horkins J. in Martin v. AstraZeneca Pharmaceuticals Plc, 2012 ONSC 2744 to deny certification of a proposed national class action relating to the anti-psychotic medicine, Seroquel®. The Divisional Court’s judgment marks the first time that an Ontario appellate court has denied certification of a pharmaceutical or medical device class action against a private defendant, and only the second time that a Canadian appellate court has done so in a common law province.

As discussed in a previous Continue Reading

This Week at the SCC (14/12/2012)

Posted in Aboriginal, Communications, Conflict of Laws, Health, Intellectual Property, Labour and Employment, Media, Professions, Regulatory, The SCC Monitor

Cases Decided

The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.

In Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, Rothstein J. for the majority of the Court held that the Canadian Radio-television and Telecommunications Commission (“CRTC”) lacked the jurisdiction to create a market-based “value for signal” regime.  The proposed regime would have enabled private local television stations (“broadcasters”) to negotiate direct compensation for the retransmission of their signals by broadcast distribution undertakings (“BDUs”), such as cable and satellite companies, and to prohibit

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Hot Off the Press – World Class Actions: A Guide to Group and Representative Actions Around the Globe

Posted in Aboriginal, Class Actions, Communications, Construction and Real Estate, Energy, Financial Services, Franchise and Distribution, Health, Insurance, Media, Municipal, Procedure, Professions, Securities, Transportation

In the newly published World Class Actions: A Guide to Group and Representative Actions Around the Globe, McCarthy Tétrault litigators David Hamer and Shane D’Souza co-authored the “Multijurisdictional and Transnational Class Litigation: Lawsuits Heard ‘Round the World” chapter. The chapter offers guidance to international lawyers who represent clients involved in cross-border, multinational and international class actions.

World Class Actions is a practical guide for lawyers, clients, legal support professionals, academics, policymakers and judges on the procedures available for class, group and representative actions internationally. Each chapter is written by a local attorney familiar with the laws, best practices, legal … Continue Reading

SCC Grants Leave to Appeal in Medical Negligence Case on Causation

Posted in Case Previews, Health, Torts

The Supreme Court of Canada has granted leave to appeal in Ediger v. Johnston, a medical negligence case that addresses the test for factual and legal causation.


In Ediger, an infant suffered acute and severe hypoxia-ischemic encephalopathy (damage to the central nervous system caused by inadequate oxygen) during delivery. The injury was caused by compression of the umbilical cord. The asphyxia in turn caused a deceleration in the fetal heart rate (fetal bradycardia), which persisted until delivery. Upon delivery, the infant was non-responsive and severely brain damaged.

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