David Himelfarb

The defendant brought a motion to set aside a consent judgment settling a claim by the plaintiff and his parents.

The defendant argued that the settlement was reached by his insurer's appointed defence counsel without his personal lawyer's involvement, exposing him to liability exceeding his insurance policy limits through surviving crossclaims.

The court dismissed the motion, finding that the defence counsel had authority under the Ontario Automobile Policy to settle the claim, the settlement was within the scope of that authority, and the defendant failed to meet the legal test to set aside the consent judgment.

The court held that it was not in the interests of justice to set aside the judgment.

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 plaintiffs sought an interlocutory injunction requiring the franchisor to reinstate them in control of a pharmacy during a contractual management period following notice that the franchise relationship would not be renewed.

The dispute arose under an associate agreement governed by the Arthur Wishart Act and included interpretation of provisions allowing the franchisor to assume management control during the final 60 days before expiry.

The court held the requested relief was a mandatory injunction requiring the plaintiffs to demonstrate a strong prima facie case.

The plaintiffs failed to establish even a serious issue to be tried, as the agreement clearly permitted the franchisor to assume management upon expiry by effluxion of time.

Claims of irreparable harm were speculative and the balance of convenience favoured the franchisor.