David Merner

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 brought a motion to strike the jury notice in a motor vehicle accident action, arguing that delays in jury trials caused by the COVID-19 pandemic would prejudice the plaintiff's loss of income claim.

The court dismissed the motion, finding that the plaintiffs failed to discharge their onus to show that justice would be better served by discharging the jury.

The court noted that the delay was partly due to the parties' own pre-trial timelines and that jury trials might resume in the near future.

The court determined costs following a 106-day individual assessment trial in a class action where the plaintiff recovered $50,000 after claiming $60,000,000.

The plaintiff sought over $7,000,000 in costs, including nearly $3,000,000 in interest on litigation loans.

The court ruled that interest on litigation loans is not a recoverable disbursement.

Finding that the plaintiff unreasonably rejected multiple offers to settle from the defendants, the court awarded the plaintiff partial indemnity costs up to the date of the defendants' first offer in 2009, and awarded the defendants their partial indemnity costs thereafter, resulting in a net costs award of over $2.3 million payable by the plaintiff to the defendants.

The plaintiff, a class member in a class action arising from a 1999 VIA Rail train derailment, sought over $60 million in damages, primarily for past and future loss of income and future care costs.

The plaintiff claimed the accident caused severe, debilitating injuries that destroyed his highly lucrative consulting business in Poland and Eastern Europe.

The court found the plaintiff and many of his lay and medical witnesses lacked credibility, noting significant inconsistencies, lack of documentary evidence (such as tax returns and banking records), and evidence of extensive post-accident travel and business activities.

The court rejected the income loss and future care claims entirely, awarding only $50,000 in general damages for minor soft tissue injuries.

In a personal injury claim arising from a motor vehicle accident, the jury awarded the plaintiff general damages.

The defendants subsequently brought a threshold motion, arguing that the plaintiff's claim for non-pecuniary loss was barred because she failed to establish a permanent, serious impairment of an important physical, mental, or psychological function under the Insurance Act.

The court, applying the three-part Meyer v. Bright inquiry, found that while the plaintiff experienced intermittent pain, her impairment did not substantially interfere with her regular employment or most usual daily activities, considering her age and pre-accident lifestyle.

The court granted the defendants' motion, dismissing the plaintiff's claim for non-pecuniary damages.

In a civil jury trial for damages from a motor vehicle accident, the court ruled on whether a proposed jury question concerning the plaintiff's lost earning capacity should be submitted.

The court found insufficient evidence to allow the jury to reasonably calculate or quantify this loss without speculation, as there was no adduced evidence of the plaintiff's annual income before or after the accident.

Citing established jurisprudence, the court determined that a question should only go to the jury if there is "reasonable evidence" to support a judicial finding.

Consequently, the question regarding loss of earning capacity was not put to the jury.

During a personal injury class action trial arising from a VIA Rail derailment, a class member sought to qualify a chartered accountant as an expert witness to quantify past and future wage loss.

The defendants opposed the qualification, arguing the expert lacked objectivity and his evidence was unnecessary.

The Superior Court of Justice applied the Mohan framework and found the expert's evidence was not necessary, as he merely accepted the class member's uncorroborated figures without independent analysis.

The court also found the expert failed to establish a basic threshold of objectivity, rendering him improperly qualified.

The expert evidence was ruled inadmissible.

During a trial for damages arising from a railway accident, the plaintiff (a class member) sought to qualify an expert witness to provide opinion evidence on the profitability of a proposed European pipeline project, claiming a loss of opportunity.

The defendants objected to the expert's admissibility.

Following a voir dire, the court refused to qualify the expert.

The court found the expert's evidence lacked reliability due to an undisclosed prior business relationship with the plaintiff.

Furthermore, the court held the expert evidence was unnecessary because the plaintiff failed to produce admissible evidence or documentation demonstrating he could have obtained the financing required to build the pipeline.

During a lengthy personal injury trial arising from a train derailment, the defendants brought a motion to determine whether the plaintiff required leave under section 12 of the Evidence Act to call more than three 'participant experts' (treating doctors) who intended to proffer opinion evidence.

The court held that while treating doctors testifying strictly to history, treatment, diagnosis, and prognosis do not require leave, those offering broader opinion evidence must comply with Rule 53.03 and are subject to the three-expert limit.

The court emphasized its gatekeeper function and the need for proportionality, ruling that the plaintiff must seek leave to call more than one expert per medical specialty.

During a personal injury trial arising from a train derailment, the defendants brought mid‑trial motions seeking orders requiring certain foreign witnesses to testify in person in Canada rather than by video conference and restricting the plaintiff to evidence previously disclosed under an earlier discovery order.

The court considered Rule 1.08 of the Rules of Civil Procedure and the broader access‑to‑justice principles articulated in Hryniak v. Mauldin.

The judge held that credibility concerns alone did not justify refusing video evidence and found the balance of convenience favoured permitting the witnesses, located abroad, to testify by video conference with interpretation.

The court also declined to limit the plaintiff’s evidence to earlier will‑say statements, finding that continuing disclosure obligations and fairness required allowing updated affidavit evidence while preserving the defendants’ opportunity to challenge it.