David Rosenbaum

The plaintiffs, representing a class of small to medium-sized businesses, sought coverage under their business interruption insurance policies for losses sustained due to the COVID-19 pandemic and related civil authority orders.

The court held a common issues trial to determine whether the presence of the SARS-CoV-2 virus or government lockdown orders could cause 'physical loss or damage to property' within the meaning of the policies.

The court concluded that the virus does not physically alter or damage inanimate surfaces, and that the loss of use of the premises due to government orders does not constitute physical loss or damage.

Consequently, the court answered the certified common issues in the negative, finding no coverage under the business interruption provisions.

Following the dismissal of the defendant insurers' motion to temporarily stay 17 individual actions pending the determination of certification in a class proceeding, the successful plaintiffs sought costs on a partial indemnity scale.

The plaintiffs requested $86,589, which the court found excessive for a relatively simple stay motion.

Applying the factors in Rule 57.01(1) and considering proportionality, the court fixed costs at $35,000 all-inclusive, payable by the defendant insurers.

The defendant insurers brought a motion to temporarily stay 17 individual actions for COVID-19 business interruption losses pending the certification of a related class action.

The court dismissed the motion, finding that while there was overlap in issues and facts, staying the individual actions would cause significant injustice and prejudice to the plaintiffs, who had legitimate reasons for pursuing their claims individually and expeditiously.

Application under the Variation of Trusts Act seeking court approval of a variation to a family trust established in 1992.

The proposed variation would permit reorganization and distribution of trust assets to defer a significant capital gains tax liability arising from the Income Tax Act 21‑year deemed disposition rule.

All adult beneficiaries and trustees consented, and the Children’s Lawyer did not oppose the variation subject to a payment protecting contingent interests of minor and unborn beneficiaries.

The court applied the test from Finnell v. Schumacher Estate and related authorities, assessing whether the variation preserved the settlor’s intention and conferred a benefit on minor, unborn, unascertained, and incapable beneficiaries.

The court concluded that the variation preserved trust capital, benefited protected beneficiaries, and would be accepted by a prudent adult acting in self‑interest.