Deborah Berlach

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 plaintiff sought certification of a class action under section 5(1) of the Class Proceedings Act, 1992, alleging the defendant was grossly negligent in its response to the COVID-19 pandemic at Oakwood Park, a long-term care home.

The classes comprised residents and visitors who contracted COVID-19 and their family members during the period January 25, 2020 to May 5, 2023.

The defendant consented to certification.

The court found all five certification requirements satisfied, including cause of action, identifiable class, common issues supported by expert methodology on causation and damages, preferability of a class proceeding, and adequate representative plaintiffs with a workable litigation plan.

Motion to certify a multi-jurisdictional class proceeding under the Class Proceedings Act arising from a cybersecurity breach at Investorcom Holdings ULC affecting personal information held by Mackenzie Financial Corporation.

The plaintiffs alleged negligence, breach of contract, and fiduciary duty by both defendants in failing to adequately secure sensitive personal information including social insurance numbers.

The court certified the action as a class proceeding, finding the pleadings disclosed plausible causes of action in negligence, contract, and fiduciary duty.

The court declined to certify claims under provincial privacy statutes due to jurisdictional limitations and the requirement of willful conduct, but permitted reliance on such statutes as material facts.

The court certified a national class proceeding without carving out members from other provinces, pending the outcome of a parallel British Columbia class action.

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 appellant, John Dunford, appealed the dismissal of his claim for damages against the Hamilton-Wentworth District School Board and Hamilton Health Sciences Corporation.

Dunford alleged that Dr. James E. Anderson, who was involved with the Cool School program, sexually abused him and that the hospital was vicariously liable.

The trial judge found that Dr. Anderson committed the tort of sexual battery but concluded the hospital was not vicariously liable due to insufficient closeness in the relationship.

The Court of Appeal upheld the trial judge’s findings, holding that the correct legal test was applied and that the policy rationales for vicarious liability were properly considered.

The appeal was dismissed, and costs were awarded to the respondents.

The Court of Appeal for Ontario dismissed the appeal from the denial of certification of a class action alleging systemic negligence in the use of seclusion and restraint at a forensic psychiatric hospital.

The court found that the motion judge did not err in concluding that the claims lacked commonality, as the alleged wrongdoing could only be determined on an individual basis.

The court also upheld the dismissal of claims against individual hospital administrators and affirmed the costs award, finding no reversible error in the motion judge’s analysis.

This mid-trial ruling addresses two issues in a medical negligence jury trial: (1) the proper form of the jury questions on causation, and (2) whether the jury should be required to provide reasons or particulars for their verdict on causation.

The court reviews the relevant case law and determines that the "but for" test should be used in the jury questions on causation, rather than the "caused or contributed to" language, given the facts of the case.

The court also declines to require the jury to provide reasons or particulars for their finding on causation, citing the risk of confusion and the lack of necessity in the circumstances.

The Empowerment Council sought leave to intervene as a friend of the court in an appeal from the refusal to certify a proposed class action concerning psychiatric inpatients at Waypoint Centre for Mental Health Care.

The Court of Appeal dismissed the motion, finding that the proposed intervener’s submissions were largely duplicative of the appellants’ and would not usefully contribute to the resolution of the appeal without prejudicing the parties.

The Plaintiffs in multiple class actions brought an omnibus motion for approval of a proposed notice plan, including direct notice and production orders from Defendants, following a complex certification decision where some actions were certified, some partially, and some dismissed.

The court denied the request for direct notice and associated production orders, finding it would impose a substantial and undue burden on defendants, particularly those against whom certification was denied.

The court also noted that such production could be seen as an attempt to solicit new representative plaintiffs or re-litigate issues already decided at the certification stage.

An indirect notice strategy was approved, and costs for the notice plan were allocated, with the Plaintiffs bearing a larger share.

Following the dismissal of the plaintiffs' motion for certification in a systemic negligence class action against a psychiatric hospital and the Province of Ontario, the successful defendants sought costs.

Waypoint claimed approximately $1.3 million and Ontario claimed approximately $815,000.

The court found the claimed amounts to be fair and reasonable given the complexity of the case and the resources expended by the plaintiffs.

Applying section 31 of the Class Proceedings Act, the court applied an approximate 10% discount due to the public interest nature of the litigation, awarding Waypoint $1,170,000 and Ontario $735,000 in partial indemnity costs.

The plaintiffs brought a motion to certify a class action against Ontario, Waypoint Centre for Mental Health Care, and individual hospital administrators, alleging systemic negligence, breach of fiduciary duty, and Charter violations related to the use of seclusion and restraints at a maximum-security psychiatric hospital.

The court dismissed the certification motion, finding that while some patients may have individual claims for culpable seclusion, there was no basis in fact for systemic wrongdoing.

The court concluded that the claims lacked commonality, as the use of restraints required highly individualized clinical assessments, and that a joinder action, rather than a class proceeding, was the preferable procedure.

The plaintiff brought an action against the defendant hospital for damages arising from sexual abuse he suffered in 1983 while attending an alternative school located on the hospital's grounds.

The plaintiff alleged that the director of the school, who was also his tutor, sexually battered him and that the hospital was vicariously liable and negligent.

The Superior Court of Justice found that the director did commit sexual battery against the plaintiff.

However, the court dismissed the action, concluding that the hospital was not vicariously liable because the relationship between the hospital and the director was not sufficiently close, as the director operated the school independently.

The court also found that the plaintiff failed to establish negligence on the part of the hospital.

Following an appeal where a new trial was ordered, the Court of Appeal issued a costs endorsement regarding the costs of the first trial.

The parties had agreed on appeal costs but not on trial costs.

The Court agreed with the respondent's submission that the disposition of the costs of the first trial should be left to the trial judge hearing the new trial, as that judge would be in the best position to determine the issue.

The appellants appealed the dismissal of their action for negligence, fraud, fraudulent misrepresentation, and intentional interference with economic relations against an accountant.

The Court of Appeal found that the trial judge erred by prematurely dismissing the action and erroneously rejecting the appellants' accounting expert's testimony.

The expert's reports, though not explicitly using "standard of care" clearly opined on the impropriety and negligence of the respondent's accounting actions, which was relevant to the claims.

The Court of Appeal allowed the appeal, set aside the dismissal, and ordered a new trial before a different justice due to a miscarriage of justice.

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.

This is an appeal concerning the application of the doctrine of equitable contribution between two insurers, Northbridge and Aviva, for the defence and indemnification of a shared insured, Mr. Daneshvari, in an underlying professional misconduct action.

Both insurers' policies contained "other insurance" clauses purporting to be excess.

The Court of Appeal upheld the application judge's finding that the policies were irreconcilable, requiring equal contribution.

The court affirmed that the standard of review for interpreting these specific "other insurance" clauses was palpable and overriding error, not correctness, as they were not standard form contracts with significant precedential value.

The appeal was dismissed, and Aviva was ordered to pay costs to Northbridge.

This is a costs endorsement following the dismissal of the plaintiffs' action and third-party claim.

The court determined the quantum of costs payable by the plaintiffs to the defendant, Christine Raffan, and whether the plaintiffs or Ms. Raffan should pay the third-party costs.

The court awarded Ms. Raffan $300,000 in costs from the plaintiffs, finding the amount reasonable given the complexity, duration, and unproven fraud allegations.

The court further ruled that Ms. Raffan, not the plaintiffs, must pay the third-party costs, awarding David Corazza and Karen Caradonna $125,000 each, as their inclusion in the proceedings did not naturally flow from the plaintiffs' action.

The appellant, Anthony Pullano, appealed a trial judgment where a jury found that the respondent, Steven Hinder, committed battery but caused no injury, thus awarding no damages for battery.

The jury also awarded $50,000 to the respondent on his counterclaim for defamation.

The appellant sought nominal damages for battery and vicarious liability against corporate respondents, which the trial judge refused.

The Court of Appeal dismissed the appeal, holding that the trial judge was not required to award nominal damages as it was the jury's function to consider damages, and nominal damages were not put to the jury.

Awarding nominal damages post-verdict would usurp the jury's role and undermine trial fairness.

Consequently, the issue of vicarious liability was moot.

The court also upheld the costs award against the appellant.

The plaintiffs brought a motion for a mistrial during their ongoing trial, alleging reasonable apprehension of bias after the court dismissed their action.

The action was dismissed because the plaintiffs' expert, a forensic accountant, failed to provide an opinion on the standard of care for a CGA, which was deemed essential for the case's success.

The court, acting as a gatekeeper for expert evidence, excluded the expert's testimony based on the two-step test from *White Burgess Langille Inman v. Abbott and Haliburton Co.* The motion for mistrial was denied, and the dismissal of the action was affirmed.

The applicant school board sought an order requiring the respondent insurer to defend and indemnify it in an underlying action concerning historical sexual abuse.

Neither party could locate the original insurance policy from the 1979-1980 school year.

The court held that the applicant met its burden of proof using secondary evidence, including an excess policy schedule and standard policy wordings from the era, to establish the existence and terms of the missing policy.

The application was granted.