Alan L.W. D’Silva

In this certified class action concerning business interruption insurance claims related to COVID-19 and civil authority orders, the plaintiffs moved on consent for approval of a Notice of Proposed Settlement and a Pre-Approval Notice Plan.

The court approved the notice and plan, finding them informative and consistent with the prior successful certification notice program.

The court also ordered that the action be treated as a Class Proceedings matter despite retaining a Commercial List file number.

The plaintiffs in this certified class action moved on consent for approval of a Notice of Proposed Settlement and a Pre-Approval Notice Plan.

The court found the proposed Notice appropriately informative and the pre-approval plan for dissemination consistent with the successful certification notice program.

The motion was granted, and the Notice of Proposed Settlement and the Pre-approval Notice Plan were approved.

The moving parties sought leave to appeal three orders of Morgan J. The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $35,500.

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 appellants succeeded on a limitation issue in a class action appeal and sought costs for the appeal and the motion below.

The Court of Appeal declined to alter the motion judge's order that costs of the motion remain in the cause.

For the appeal, the court recognized the appellants' success but modified the costs award because the appeal raised a novel issue of law and involved access to justice considerations in a class action.

The court awarded costs of the appeal in the cause, fixing them at $20,000 for the Timminco appellants, $20,000 for the Photon Consulting appellants, and $10,000 for the Walsh appellant.

Following the dismissal of 42 consolidated motions for leave to appeal costs awards in 37 class actions, the respondent insurers sought costs totalling $345,349.36.

The Court of Appeal assessed the bills of costs submitted by various law firms representing the insurers.

Applying the principle that costs must be fair and reasonable rather than a strict mathematical calculation of hours times rates, the Court reduced the amounts claimed, noting that the complexity was procedural rather than legal or factual.

The Court fixed the total costs payable to the insurers at $141,645.26.

Following release of the court's earlier appeal decision, the respondents asked the court to reconsider based on an alleged significant factual error concerning the timing of an insurer's insolvency.

The court acknowledged the factual error but held it did not affect the interpretation of s.4.2 of the share purchase agreement or the ultimate allocation of liability for post-closing assessments.

The court maintained that the respondents remained liable for assessments levied in 1994 and 1995 and thereafter, whether or not calculated on the sold insurer's premium income.

The earlier appeal decision was left unchanged.

This is a remedy decision following a finding that the complainant was sexually harassed by co-workers and that management's failure to address the harassment led to her dismissal.

The Board of Inquiry awarded special damages for wage loss, applying a common sense test to limit recovery to the period before intervening events broke the chain of causality.

The Board also awarded $10,000 in general damages for the loss of the right to be free from discrimination and $5,000 for mental anguish, noting the respondents' reckless disregard for the complainant's rights.

A request for legal costs was denied for lack of jurisdiction.

The complainant, a labeller at a paint manufacturing plant, alleged she was subjected to ongoing sexual and gender-based harassment by two male co-workers, including inappropriate touching, sexual comments, and physical assaults.

After she suffered a chemical burn from one of the co-workers, the police were called and the men were charged with sexual assault.

Despite this, management failed to investigate, separate the employees, or take any steps to prevent further harassment.

The complainant was subsequently terminated for alleged insubordination.

The Board of Inquiry found that the complainant was sexually harassed, creating a poisoned work environment, and that the harassment was a contributing factor to her dismissal.

The corporate respondent and its senior managers were held jointly and severally liable for failing to take reasonable steps to address the harassment.