Frances Shapiro Munn

On January 8, 2020, Ukraine International Airlines flight PS752 was shot down by Iranian air defence missiles shortly after takeoff from Tehran, killing all 176 persons aboard.

The trial judge found that UIA breached the standard of care by failing to conduct a proper security risk assessment in accordance with ICAO 10084 (Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zones).

Specifically, UIA failed to access necessary and available information, failed to conduct a hazard identification and safety assessment, and failed to communicate with the flight commander before departure.

As a result, UIA's liability under the Montreal Convention was unlimited rather than capped at approximately $235,000 per passenger.

The appellate court dismissed UIA's appeal, finding no palpable and overriding error in the trial judge's findings of fact or mixed fact and law.

The plaintiffs brought actions against Ukraine International Airlines (UIA) under the Montreal Convention following the shoot-down of Flight PS752 by Iranian military surface-to-air missiles shortly after takeoff from Tehran.

UIA admitted the shoot-down was an 'accident' under the Convention, making it strictly liable, but sought to limit its liability by proving it was not negligent in allowing the flight to depart.

The Superior Court of Justice found that UIA failed to meet the standard of care for a reasonable airline operating in or near a conflict zone, as it did not conduct a proper security threat risk assessment or any safety risk assessment, and failed to gather available intelligence or brief the flight commander.

The court held that UIA failed to prove its negligence did not cause the passengers' deaths or that the harm was too remote, resulting in unlimited liability for the airline.

This case involved two consolidated applications under the Substitute Decisions Act, 1992, where two parents each sought to be appointed sole guardian of property and personal care for their adult son with autism.

The court found the son incapable of managing his property and personal care (except clothing).

The decision focused on determining which parent was more likely to fulfill the duties of a guardian, including fostering contact with family and friends, consulting with supportive individuals, and promoting the son's independence.

The court gave limited weight to the son's expressed wishes due to concerns about their independence and potential influence.

Ultimately, the court appointed the mother as the sole guardian, concluding that it was in the son's best interest and that she was more likely to fulfill the guardian's duties effectively.

The plaintiffs in three related lawsuits arising from a fatal head-on automobile accident brought summary judgment motions to determine liability.

All parties agreed that liability could be determined by summary judgment but held diametrically opposed positions on who was liable.

The court found that the existence of competing expert accident reconstruction reports, particularly those based on computer simulations with unknown reliability, created genuine issues of material fact regarding causation.

The court also noted an "air of reality" to the contention that the deceased plaintiff's distracted driving might have contributed to the collision, despite a prior Highway Traffic Act conviction against one of the defendants.

Consequently, the motions for summary judgment were dismissed, as a full trial with oral testimony and cross-examination was deemed necessary to resolve the complex factual disputes and competing expert opinions.

The plaintiffs brought a motion to approve a $13,375,000 settlement in a class action against a fertility doctor who allegedly used incorrect genetic material, including his own, during artificial insemination procedures.

The court found the settlement to be fair, reasonable, and in the best interests of the class members, noting the novel legal issues and the emotional toll of continued litigation.

The court also approved class counsel's 25% contingency fee of $3,343,750, recognizing the significant risk, time investment, and successful outcome achieved.

The self-represented plaintiff, Brian Charbonneau, sought an urgent determination for the defendants' motion for summary judgment to proceed, requesting its dismissal and the scheduling of mediation.

The underlying dispute involved an erroneous land conveyance from 2011.

The plaintiff argued urgency due to potential farming business losses of $4,500 for the season.

The court, applying the Provincial Direction's definition of "urgent" (immediate and significant financial repercussions), found that the matter was not urgent, as the issue had been ongoing since 2015 and the potential loss was not deemed "significant." The request for urgency was denied.

The defendants brought a motion for an order that the same judge hear the third party proceeding as the main action, which was dismissed.

The third party sought costs of the motion.

The court found that costs should follow the event but that the $14,000 claimed was disproportionate for a procedural motion that could have been resolved at a case conference.

Costs were fixed at $5,000 on a partial indemnity scale.

The defendants moved to dismiss the plaintiff's subrogated claim for delay under Rule 24.01(2) of the Rules of Civil Procedure, as more than five years had passed since the action was commenced.

The plaintiff failed to provide a reasonable explanation for the delay, which included failing to answer undertakings for over three years.

Furthermore, the court found the defendants would suffer non-compensable prejudice because the oil tank, which was central to determining the cause of the leak, had been destroyed.

The motion was granted and the action was dismissed.

The defendants brought a motion seeking an order that their third-party action against the accountants be tried by the same judge as the main action, immediately following the main trial.

A previous order had already determined that the main action and third-party action would be tried separately.

The court dismissed the motion, holding that motion judges are not responsible for judicial assignments and that the motion was a collateral attack on the previous ruling.

The defendants remain at liberty to request an immediate trial date and ask the Regional Senior Judge to assign the same judge through the normal scheduling process.

The plaintiff municipality sought leave to amend its statement of claim to add its consulting engineer, WSP, as a defendant in an action concerning defective bridge rehabilitation work.

WSP opposed the motion, arguing the claim was statute-barred by the two-year limitation period.

The court applied the discoverability principle, finding that the plaintiff reasonably relied on WSP's professional advice that the defects were caused by poor workmanship rather than WSP's specified concrete mixture.

The limitation period did not begin to run until the plaintiff obtained independent expert reports revealing WSP's potential negligence.

The motion to add WSP as a defendant and extend the time to set the matter down for trial was granted.

The Plaintiffs, having obtained partial summary judgment on liability, sought substantial indemnity costs.

The Defendants proposed a global award.

The court, applying Rule 57.01 of the Rules of Civil Procedure and principles from Boucher v. Public Accountants Council for the Province of Ontario, assessed the Plaintiffs' costs.

It found the Plaintiffs' claimed fees and disbursements excessive, particularly for time not directly related to the summary judgment motion and for preparing costs submissions.

The court also considered the "no-cost" offer to settle, finding it did not automatically trigger Rule 49 consequences but was a relevant factor.

The court fixed the Plaintiffs' costs at $160,889.76 in fees and $100,000 in disbursements, inclusive of taxes.

The defendant WSP Canada Inc. brought a motion for leave to appeal to the Divisional Court from a decision compelling the production of an internal Risk Management Report (RMR).

WSP claimed common law privilege over the RMR, arguing that the motion judge erred in applying the dominant purpose test for litigation privilege and that his decision conflicted with other authorities.

The court dismissed the motion for leave to appeal, finding no conflicting decisions on common law privilege principles and no good reason to doubt the correctness of the original decision.

The court affirmed that the RMR was not prepared for the dominant purpose of litigation and therefore was not protected by litigation privilege, correctly applying the Slavutych test.