Annelis K. Thorsen

In a class action against a long-term care home regarding a COVID-19 outbreak, the parties agreed on the terms of a certification order except for the temporal scope of discovery regarding infection prevention and control (IPAC).

The defendants sought to limit questions to the three weeks prior to the first outbreak, while the plaintiff sought an undefined period leading up to the outbreak.

The court adopted the plaintiff's flexible approach, holding that the relevance of IPAC matters preceding the outbreak must be assessed on a question-by-question basis during discoveries.

The plaintiffs brought a motion on consent for an order certifying a class action against the defendants regarding COVID-19 outbreaks at a retirement home.

The plaintiffs alleged the defendants were grossly negligent in their response to the pandemic, resulting in infections and deaths.

The court found the requirements of section 5(1) of the Class Proceedings Act were met and certified the action on the terms proposed by the plaintiffs.

The plaintiffs brought a motion on consent to certify a class action against the defendants regarding their response to COVID-19 outbreaks at a retirement residence.

The plaintiffs alleged the defendants were grossly negligent in their infection prevention and control measures, resulting in preventable infections and deaths.

The court found that the requirements of section 5(1) of the Class Proceedings Act were satisfied and certified the action on the terms proposed by the plaintiffs.

The defendants brought a motion to stay the Ontario class action as an abuse of process due to overlapping class proceedings in British Columbia and Québec.

The plaintiffs sought certification of the Ontario action.

The court dismissed the motion to stay, finding that the Ontario action was not a carbon copy of the others and offered a broader class definition and potential remedies, thus not offending principles of comity or amounting to an abuse of process.

The court also found that a class proceeding in Ontario was the preferable procedure for resolving the common issues, despite the parallel proceedings, and certified the action.

The plaintiffs' request to amend their claim to add a new statutory cause of action under New Brunswick legislation was denied.

On a certification motion in a proposed national product liability class action concerning talc-based baby powder and epithelial ovarian cancer, the court held that the plaintiffs met four of the five certification criteria for negligence, Competition Act claims, and consumer protection claims in several provinces.

The court struck or refused Ontario and Prince Edward Island consumer protection claims for lack of privity of contract, and indicated that Yukon and New Brunswick statutory claims required further submissions.

The court accepted that the plaintiffs' expert evidence provided a plausible methodology for proving general causation, negligent design and manufacturing, misleading representations, and punitive damages as common issues, while emphasizing that conflicting expert opinions were for trial.

The motion to stay for delay was dismissed because the delay was sufficiently explained and prejudice was not irreparable.

However, the duplication-based stay motion and the preferability analysis were adjourned pending the outcome of the British Columbia appeal.

The moving parties, including Chartwell Retirement Residences, Sienna Senior Living Inc., Extendicare Inc., and Schlegel Villages Inc., brought four motions for leave to appeal the decision of Morgan J. dated March 7, 2024.

The Divisional Court dismissed the motions for leave to appeal without costs.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

The appellants sought to certify a class proceeding against the provincial government for its response to COVID-19 in long-term care homes, asserting claims in negligence, breach of fiduciary duty, and breach of Charter s. 7.

The motion judge certified the negligence claim against the Minister of Long-Term Care (MLTC) but struck the other claims.

This appeal and cross-appeal challenged that decision.

The Court of Appeal dismissed both the appellants' appeal (seeking to certify the struck claims) and the respondent's cross-appeal (seeking to decertify the negligence claim against the MLTC), thereby upholding the motion judge's original certification decision.

The defendant brought a motion for leave to appeal the order of Belobaba J. dated December 20, 2022, regarding a certification motion.

The Divisional Court granted leave to appeal and noted that the parties could apply to the Court of Appeal to have this appeal heard together with the pending appeal of the dismissal of the balance of the certification motion.

No costs were awarded as costs outlines were not filed.

This endorsement addresses the quantum of costs following the Plaintiffs' successful certification motion in a class action.

The court, while acknowledging the Plaintiffs' entitlement to costs on a partial indemnity scale, disallowed a claim for nearly $20,000 in docketed time spent on preparing the costs submissions themselves, deeming it novel and not to be encouraged.

The court rejected the Defendants' argument that the Plaintiffs' fees were too high, noting that both sides invested similar hours and the difference in dollar amounts reflected firm structure rather than overwork.

The Plaintiffs were awarded all-inclusive costs of $496,000.

The plaintiffs sought certification of a national class action against the defendants regarding alleged defects and failures to warn associated with Allergan breast implants, specifically concerning risks of BIA-ALCL, premature rupture, and ASIA/BII.

The court found that the plaintiffs met all the criteria under section 5(1) of the Class Proceedings Act, 1992, including demonstrating a plausible methodology for their claims through expert evidence, despite significant scientific debate.

The action was certified against all defendants, expanding a previous partial certification order.

The plaintiffs sought to certify a class action against the Government of Ontario for its response to the COVID-19 pandemic in long-term care (LTC) homes.

The plaintiffs alleged gross negligence, breach of fiduciary duty, and breach of section 7 of the Charter.

The court certified the class action solely on the negligence/gross negligence claim against the Minister of Long-Term Care, finding it arguable that the Long-Term Care Homes Act imposes a private law duty of care on the Minister to protect LTC residents.

The fiduciary duty and Charter claims were struck for disclosing no reasonable cause of action.

The class was limited to LTC residents and their families, excluding visitors.

The appellant brought a proposed class action against the manufacturers of the prescription drug Prepulsid.

The respondents successfully moved to strike paragraphs of the statement of claim alleging fraudulent or negligent filings with Health Canada and claiming reimbursement of the purchase price.

On appeal, the Court of Appeal allowed the appeal in part, reinstating the paragraphs regarding regulatory filings as they were sustainable under a negligence or negligent misstatement claim.

However, the court upheld the striking of the reimbursement claims, finding they could not be sustained under negligence, breach of contract, or unjust enrichment.

The applicant, a 69-year-old woman, was injured when the city bus she was riding stopped suddenly.

She applied for statutory accident benefits, but the insurer terminated medical benefits and refused to pay for housekeeping.

The arbitrator found that the applicant suffered physical and psychological impairments as a result of the accident, aggravating pre-existing conditions.

The arbitrator ordered the insurer to pay for physiotherapy, psychological treatment, medical assessments, and housekeeping expenses.

The insurer's argument that the applicant was disentitled to benefits for failing to attend a DAC assessment was rejected due to defective notice.

The applicant was awarded her arbitration expenses.

The applicant sought interim income replacement benefits following a motor vehicle accident.

The insurer argued the applicant was not credible and was laid off due to a business downturn, not accident-related absences.

The arbitrator found the applicant provided prima facie evidence of an accident-related disability that precipitated his loss of work, relying on a contemporaneous email from his employer.

The arbitrator also applied the rule in Browne v. Dunn to disregard the insurer's collateral attack on the applicant's credibility, as the insurer chose not to cross-examine him.

Finding urgency from the date the claim was raised, the arbitrator ordered the insurer to pay interim benefits.

The appellant insurer appealed an order that dismissed its motion for summary judgment and set aside a settlement agreement with the respondent.

The insurer conceded there were deficiencies in the notice provided under the settlement regulation but argued they were immaterial.

The Court of Appeal held that the materiality of the deficiencies could not be determined on the motion record.

However, the court found the motion judge erred by setting aside the settlement instead of merely dismissing the summary judgment motion.

The appeal was allowed in part to substitute an order dismissing the motion for summary judgment.