Gill v Ethicon SÁRL

The case of Gill v Ethicon SÁRL involved a representative proceeding on behalf of women who had been implanted with medical devices manufactured by Ethicon. The plaintiffs sought damages for alleged misleading and deceptive conduct and sought injunctive relief to prevent the sale of these devices without a detailed warning about their risks. The court was required to decide whether to grant leave to amend the originating application and statement of claim after the end of the hearing to add a claim for injunctive relief and to alter the description of the group to incorporate persons whose causes of action had arisen after the commencement of the proceeding.

The court held that considerations of justice, efficiency, and economy supported the applicants’ argument. The amendment should take effect from the commencement of the action on 15 October 2012. The court allowed the amendment to seek injunctive relief, despite the respondents' objections, as there was no good reason why leave should not be granted. The court also allowed the amendment to alter the description of the group to include women who were implanted with Ethicon devices and suffered complications after the commencement of the proceeding but before 4 July 2017. The parties were directed to confer on and agree to an appropriate form of opt-out notice.

The court granted the applicants leave to file an amended originating application and statement of claim, but required the applicants to pay 85% of the respondents' costs of the interlocutory application, including any costs thrown away. The respondents were given leave to file supplementary submissions on the proposed amendments by 31 May 2018, and the applicants were required to file any submissions in reply by 14 June 2018.