special case hearings in class action litigation: Taylor v Canada (Attorney General), 2011 ONCA 181. 


March 2011

class action bulletin

It is a rare scenario in which the Ontario Court of Appeal grants leave to have a special case determined. However, the class action proceeding in Taylor v Canada (Attorney General)1 provided such a scenario. Some of the reasons as to why the court felt that leave to determine a particular point of law was appropriate correlated with the fact that Taylor was class action litigation.

In Taylor, the parties sought to have the Court of Appeal determine whether persons who had received medical implants (for temporomandibular joints or TMJs) had a sufficiently proximate relationship to Health Canada to sustain pleadings related to allegations of regulatory negligence.

Rule 22.02(1) of the Ontario Rules of Civil Procedure allows reference by way of motion to a judge of a special case. Rule 22.02(2) of the Rules permits a judge to hear and determine the special case where a judge is satisfied that the determination of the question may dispose of all or part of the proceeding, substantially shorten a hearing, or result in a substantial savings of costs.

Rule 22.03(1) provides that the motion provided for in Rule 22.02 can be made, with leave, to a judge of the Court of Appeal to have the special case determined in the first instance. Leave may be granted to the Court of Appeal in three circumstances, being:

  • there are conflicting decisions of judges in Ontario and there is no decision of an appellate court in Ontario;
  • there is a conflict between decisions of an appellate court in Ontario and an appellate court of another province, or between decisions of appellate courts of two or more other provinces; or
  • one of the parties seeks to establish that a decision of an appellate court in Ontario should not be followed.

history of Taylor

In 2007, the Honourable Mr. Justice Cullity (the "motion judge") certified Taylor as a class proceeding pursuant to section 5 of the Class Proceedings Act. Leave to appeal the order to the Divisional Court was refused. Relevant decisions in other actions were subsequently released by the Court of Appeal and the defendant moved for reconsideration of the certification of the action. The motion judge then struck the statement of claim, subject to any amendment to remedy the pleadings. Subsequently, the motion judge granted leave to amend the pleadings and the defendant applied for leave to appeal.

myriad decisions on the propriety of allegations of negligence against the federal crown

The issue which led to the procedural wrangling in Taylor was whether the plaintiff had a sufficiently direct and close relationship of proximity that made it just and fair to impose a private law duty of care on Health Canada to the class plaintiffs who received TMJ implants. The determination of this issue was impacted by other appellate authorities on similar questions.

For example, in Sauer v Canada (Attorney General)2 – which pre-dated Taylor – the Ontario Court of Appeal held that it was not plain and obvious that the Government of Canada did not owe a duty to cattle farmers based on comments about regulation of cattle feed.

After Sauer, appeals were heard in Drady v Canada (Minister of Health)3 and Attis v Canada (Minister of Health)4, decisions which both involved implants of some form.

In Drady, the motion judge did not certify the class and, in fact, dismissed the claims on the basis that the plaintiff had not been able to identify the TMJ implant manufacturer as one regulated by Health Canada. Similarly, in Attis, the motion judge held that the federal Crown did not owe a private law duty of care to recipients of breast implants.

At the Court of Appeal hearing in Drady, Lang JA had commented with respect to the initial certification of the action in Taylor that "the motion judge erred to the extent he assumed that, without more, conduct that increases risk creates a relationship of proximity."In the same decision, Lang JA stated "proximity was adequately pleaded in Sauer on the basis of the many express public representations by the government that it was acting for the explicit purpose of protecting the commercial cattle farmers." In Drady, however, nowhere did the plaintiff "plead a specific representation made to him by Health Canada."7

In addition to these decisions, in Knight v Imperial Tobacco Canada Ltd8, the British Columbia Court of Appeal upheld a pleading against the federal government for negligent misrepresentation and development of tobacco for mild and light cigarettes.

In the motion judge's reasons in Taylor granting leave to amend the statement of claim, he commented that "I doubt whether any rational individual not bound by stare decisis would understand why it should be considered fair and reasonable to impose a duty of care on a government regulatory body in Sauer but not in this case when the amendments are made [and that any] distinctions to be drawn on the words of the pleadings appear to me to be sufficiently close to hair-splitting."9

considerations for granting leave

In Taylor, Ontario Court of Appeal Justice Armstrong granted leave to have a special case heard to determine whether, in a claim for regulatory negligence, the plaintiffs could establish a sufficient relationship of proximity between persons who had received medical implants and Health Canada.

Armstrong JA justified granting leave to have the special case determined through consideration of the following:

  • "the litigation has already become a procedural marathon"10 and enormous delay and expense had already occurred;11
  • failure to grant leave would lead to additional months or years in hearings, and hearing of the case will allow the action to move past the pleadings stage in a substantially shorter period of time;12
  • there are 30 other cases waiting for the issue to be resolved;13
  • the fact that the issue had already been determined by a motion judge and this would not be the "first instance" it was addressed, but the parties agreed to treat the leave application as a separate motion or application;14
  • the current state of jurisprudence at the appellate level on an important issue of law;15
  • the importance of the case;16 and
  • the inevitability that the issue would otherwise end up being heard by the Court of Appeal.17

The decision also repeatedly refers to the fact that both parties were requesting to have the special case heard.18

future special cases in the court of appeal?

The decision in Taylor iterates twice that it will be a rare instance where a special case will be heard by the Court of Appeal that would bypass the Divisional Court.19   However, the criteria which were considered in granting leave would appear to endorse the usage of the hearing of a special case to class action proceedings so long as the parties consent and want resolution of conflicting legal authorities.

The considerations which Armstrong JA applied reflecting rule 22.02 – which require that determination of the special case may dispose of all or part of the proceeding, substantially shorten a hearing or result, or a substantial savings of costs – would appear to more easily be met in large-scale class action litigation than in smaller matters. While it is true that Taylor was commenced in 1999, it is not the only class action proceeding that has moved slowly and it may not be the last in which the Ontario Superior Court of Justice or Court of Appeal grant leave to have a special case determined.

by Adam D.H. Chisholm


1 2011 ONCA 181.

2 2007 ONCA 454.

3 2008 ONCA 659, leave to appeal to the SCC refused, [2008] SCCA No 492 (QL).

4 2008 ONCA 660, leave to appeal to the SCC refused, [2008] SCCA No 491 (QL).

5 Supra note 3 at para 52.

6 Ibid at para 42.

7 Ibid at para 54.

8 2009 BCCA 541.

9 Supra note 1 at para 18.

10 Ibid at para 27.

11 Ibid at para 34.

12 Ibid at paras 27-28.

13 Ibid.

14 Ibid at paras 30-31.

15 Ibid at para 34.

16 Ibid.

17 Ibid.

18 Ibid at paras 2, 3, 21-25, 34.

19 Ibid at paras 4, 26.

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2011©