Doug Lennox

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 successful certification of a class action concerning metal-on-metal hip implants, the plaintiff sought costs of $584,288 on a partial indemnity basis.

The court applied its established approach to certification costs, reducing the hourly rates to comply with the Rules Committee Grid.

The court further reduced the fees by 50 percent because class counsel spent an inordinate amount of time unnecessarily litigating the merits of the action.

Disbursements were also reduced, as an expensive expert report was deemed not essential for certification.

Ultimately, the court fixed costs at $200,000 payable forthwith and $65,000 in the cause.

The plaintiff sought certification of a proposed class proceeding alleging that large‑head metal‑on‑metal hip implants designed and distributed by the defendants were defective and caused injury.

The defendants contested certification primarily on the basis that the proposed common issues lacked sufficient commonality and that a class proceeding was not the preferable procedure.

The court applied the “some basis in fact” standard under s. 5 of the Class Proceedings Act, 1992 and held that the plaintiff had adduced sufficient evidence of product defect and class‑wide commonality to support most proposed common issues.

The court found that negligence, duty of care, breach of standard of care, medical monitoring costs, and punitive damages issues could proceed on a class‑wide basis, subject to certain amendments.

The action was certified as a class proceeding with most proposed common issues approved.

This was a costs decision following a pre-certification production motion in a proposed class proceeding involving hip implant products.

The court had previously dismissed most of the defendants' production request as too broad, while requiring limited additional product identification information relevant to the certification criterion under s. 5(1)(e) of the Class Proceedings Act, 1992.

Treating the plaintiff as 90 percent successful on the motion, the court held that the plaintiff's $15,000 request was too high and the defendants' proposed $3,480 was too low.

Costs were fixed at $7,500 all-inclusive, payable forthwith by the defendants.

In a proposed class action concerning allegedly defective metal-on-metal hip implants, the defendants brought a motion for the pre-certification production of the representative plaintiff's medical records.

The court formulated a clear rule for Ontario that pre-certification production of medical records will only be ordered if the defendant can show the documentation is relevant to one or more of the certification requirements under section 5(1) of the Class Proceedings Act.

The court dismissed the defendants' broad request for all hip-related medical records as irrelevant to the certification issues, but granted a narrow request for records identifying the specific products implanted, as this was relevant to the plaintiff's suitability as a representative plaintiff.