Daniel Michaelson

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 plaintiff brought a medical malpractice action against his family physician, alleging the physician failed to diagnose and treat a respiratory infection over several months.

The plaintiff was eventually hospitalized and required invasive surgery for streptococcal empyema, resulting in chronic pain and other ailments.

The court found that while the plaintiff did suffer from respiratory symptoms prior to his hospitalization, he failed to prove on a balance of probabilities that he reported these symptoms to the defendant during his monthly visits.

The court held that the defendant met the standard of care of a reasonable family physician and dismissed the action.

The insurer brought a motion for partial summary judgment seeking to limit the plaintiff’s recovery to $200,000 on the basis that the plaintiff failed to provide the corroborative “other material evidence” required under the OPCF 44R Family Protection Coverage Endorsement for unidentified motorist claims.

The accident involved a motorcyclist who alleged he was cut off by an unidentified vehicle without physical contact.

The court considered whether medical evidence describing the mechanism of injury could constitute “physical evidence indicating the involvement of an unidentified automobile” under ss. 1.5(C) and 1.5(D)(ii) of the endorsement.

The court held that corroborative evidence need not be limited to skid marks or scene evidence and may include medical evidence extrinsic to the plaintiff’s self-report.

Because the consultation report describing an axial-load leg injury was consistent with the plaintiff’s account of evasive braking, a genuine issue requiring trial existed.

The defendants brought a motion for summary judgment in a negligence action arising from a fatal apartment fire that destroyed a converted church building.

The plaintiffs alleged the landlords failed to comply with building and fire code requirements, including unsafe wiring, lack of compartmentation and fire separation, and failure to install smoke alarms.

The court held that the action involved extensive conflicting evidence, multiple expert reports, and numerous factual disputes regarding the cause of the fire and the role of alleged safety violations.

Applying the “full appreciation” test from the Court of Appeal’s summary judgment jurisprudence, the court concluded that the motion process could not provide an adequate substitute for a trial.

The motion for summary judgment was therefore dismissed and the matter directed to proceed to trial.

The defendant, the owner of a cow that escaped onto a highway causing a motor vehicle accident, brought a motion to transfer two related personal injury actions from Toronto to Lindsay or Oshawa.

The plaintiffs, who resided in Ajax, received extensive medical treatment in Toronto and retained Toronto-based experts.

The court applied Rule 13.1.02(2)(b) and found that while the accident occurred in the Regional Municipality of Durham, the convenience of the treating specialists, medical experts, and counsel strongly favoured Toronto.

The court concluded that the defendant's proposed venues were not significantly better than the plaintiffs' reasonable choice of Toronto, and dismissed the motion with costs.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellant was ordered to pay the respondent's costs of the appeal on a partial indemnity scale, fixed at $8,000 inclusive of disbursements and GST.

The appellant attended a party at the respondent's property and fell from a newly constructed deck that lacked a railing, sustaining a fractured ankle.

At trial, the jury dismissed the appellant's negligence action, finding that the respondent did not fail to take reasonable care and that the appellant failed to take reasonable care for her own safety.

The appellant appealed, arguing the jury's verdicts on liability and damages were perverse and that the trial judge erred in admitting certain photographs.

The Court of Appeal dismissed the appeal, finding there was an evidentiary basis for the jury's verdict, including evidence that the respondent had warned the appellant about the lack of a railing.