Ben Irantalab

In a class action arising from a COVID-19 outbreak at a long-term care home, the appellants challenged certification of causation and punitive, exemplary or aggravated damages as common issues, and sought leave to appeal the certification costs award.

The Court of Appeal held that the motion judge properly found some basis in fact for a workable methodology for proving causation on a class-wide basis through a risk ratio approach supported by available data and expert evidence.

The court also upheld certification of punitive, exemplary or aggravated damages, rejecting the argument that such relief could not be certified absent common compensatory damages, noting that sequencing could address any quantification concerns.

Leave to appeal costs was denied because no strong grounds were shown for appellate intervention in the discretionary costs ruling.

The plaintiffs sought certification of a class action arising from a COVID-19 outbreak at Roberta Place Long Term Care Centre in Barrie, Ontario, from January 8 to February 18, 2021.

During the outbreak, 129 residents tested positive for COVID-19, resulting in 73 resident deaths (57% of the resident population).

The plaintiffs alleged systemic gross negligence by the defendants in failing to properly plan for and respond to the pandemic and implement adequate infection prevention and control (IPAC) measures.

The court certified the action as a class proceeding with three classes: residents who tested positive, estates of those who died from COVID-19, and eligible family members.

The court found that the plaintiffs met all five certification requirements under the Class Proceedings Act, 1992, including establishing common issues regarding duty of care, standard of care, breach, causation, and punitive damages.

The court rejected certification of aggregate damages as a common issue due to lack of evidence of a workable methodology.

The applicant, a minor injured in a motor vehicle accident, sought statutory accident benefits.

The respondent insurer denied benefits and scheduled two insurer's examinations (IEs) for attendant care.

The applicant failed to attend the IEs, arguing they were excessive and would negatively impact his health.

The respondent raised a preliminary issue that the applicant was barred from proceeding under s. 55(1)2 of the Statutory Accident Benefits Schedule.

The Tribunal found that the respondent provided proper notice of the IEs and that the applicant failed to provide a sufficient basis to exercise discretion under s. 55(2) to excuse the non-attendance.

The application was barred from proceeding.

The applicant, a minor injured in a motor vehicle accident, sought statutory accident benefits.

The respondent insurer scheduled two in-person insurer's examinations (IEs), which the applicant refused to attend, citing her age, COVID-19 safety concerns, and fears of psychological deterioration.

The respondent raised a preliminary issue that the applicant was barred from proceeding under s. 55(1)2 of the Statutory Accident Benefits Schedule.

The Tribunal found that the respondent provided proper notice of the IEs and that the applicant failed to provide a reasonable explanation for her non-attendance.

The Tribunal declined to exercise its discretion under s. 55(2) to permit the application to proceed, noting the applicant had attended other in-person medical assessments.

The application was barred.

The applicant, a minor injured in a motor vehicle accident, sought a medical benefit for physiotherapy services.

The insurer raised a preliminary issue that the applicant was barred from proceeding for failing to attend an insurer's examination.

The Tribunal found the applicant was not barred because the insurer's notice of examination failed to include the required details under s. 44(5) of the Schedule.

On the substantive issue, the Tribunal dismissed the claim for physiotherapy, finding insufficient evidence that the treatment was reasonable and necessary, as the most recent occupational therapy assessment noted no pain behaviours or physical limitations.

Two Ontario residents injured in separate accidents outside Ontario involving an all-terrain vehicle (ATV) and a dirt bike sought statutory accident benefits (SABs) under their Ontario automobile insurance policies.

Both insurers denied coverage, arguing that the definition of "automobile" under Ontario law should be determined by the law of the jurisdiction where the accidents occurred (lex loci delicti).

The Court of Appeal held that Ontario law applies to the interpretation of Ontario contracts and statutes, and that the definition of "automobile" in the Insurance Act and Off-Road Vehicles Act applies uniformly regardless of where the accident occurs.

Both vehicles qualified as automobiles under the extended definition because they would have required insurance if operated in Ontario under the Off-Road Vehicles Act.

The court allowed the appeal of the insured and dismissed the appeal of the insurer.