Alan L.W. D’Silva

The respondent, Nordik Windows Inc., brought a motion to quash an appeal by the appellants, Aviva Insurance Company of Canada et al., arguing the underlying order was interlocutory and required leave to appeal to the Divisional Court.

Aviva contended the order was final as it determined a limitation period issue.

The Court of Appeal found the motion judge's order was interlocutory, as it did not finally determine the limitation period defence, but rather dismissed the motion without a final conclusion on that issue.

The appeal was therefore quashed.

This endorsement addresses two motions for leave to appeal before the Divisional Court.

The Plaintiffs' motion for leave to appeal a "set aside" order was dismissed with costs awarded to the Defendants.

Concurrently, the Defendants' motion for leave to appeal earlier certification decisions was dismissed without costs, having become moot.

This decision addresses competing carriage motions in proposed class actions concerning business interruption insurance claims related to the COVID-19 pandemic.

The court considered an "omnibus" action against 16 insurers and several focused actions against Aviva.

The court ruled that the Aviva-specific actions should proceed expeditiously, carved out from the omnibus action, with the Nordik Consortium and Lerners LLP appointed as carriage counsel for the Aviva claims.

The Workman Consortium was appointed carriage counsel for the omnibus action, excluding the Aviva defendants.

The decision prioritized the best interests of the class, fairness to defendants, and the objectives of the Class Proceedings Act, particularly access to justice and expeditious determination.

The defendants appealed a Master's order that struck out one of two defence neuropsychological assessments of the plaintiff.

The Master had varied his original order allowing two assessments after discovering the defendants had entered into an undisclosed settlement agreement, reasoning they were no longer adverse in interest.

The Superior Court allowed the appeal, finding the Master erred in law.

The court held that the defendants remained adverse in interest despite the settlement, and that adversity is not a strict prerequisite for multiple defence medicals under section 105 of the Courts of Justice Act if fairness requires it.

Both assessments were permitted, but the defendants were ordered to pay full indemnity costs and fund an additional assessment for the plaintiff as a sanction for failing to disclose the agreement and breaching the examination protocol.