Geoffrey D. E. Adair

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 decision addresses the allocation of costs following a motion regarding the fairness and reasonableness of a contingency fee agreement in a personal injury settlement involving a minor.

The court awards full indemnity costs for guardianship proceedings and partial/substantial indemnity costs for the fees motion, analyzing the appropriateness of the costs claimed and the conduct of the parties.

The court considered a motion for approval of a contingency fee agreement (CFA) in a medical malpractice action that settled for $14 million.

The litigation guardian challenged the proposed fee of approximately $4.1 million.

The court found the CFA was neither fair when entered into nor reasonable at present due to non-compliance with regulatory requirements and the disproportionate fee relative to the client's damages.

The proposed fee was disallowed, and a reduced fee of $3,250,000, plus HST and disbursements, was ordered, applying a staggered percentage approach.

This appeal concerned an insurance coverage dispute following a cyberattack on CarePartners, a healthcare company.

A class action was commenced against CarePartners, and Aviva, their insurer, denied full coverage due to a Data Exclusion Endorsement.

The parties entered a funding agreement for defence and settlement on a 60/40 basis, without prejudice to coverage issues.

Aviva sought a declaration in Superior Court regarding its duty to defend and indemnify.

The application judge found no duty for personal injury claims but a duty for bodily injury claims, without allocating costs.

CarePartners cross-appealed, seeking reimbursement of their 40% settlement contribution and arguing that a new application by Aviva for allocation was res judicata.

The Court of Appeal dismissed CarePartners' cross-appeal, affirming the application judge's coverage decision and ruling that the allocation issue was not before the lower court, thus res judicata did not apply.

Aviva Insurance Company of Canada brought a motion to set aside its notice of abandonment of appeal, seeking leave to file a new factum or an extension of time for filing a notice of appeal.

The respondent, 8262900 Canada Inc. (CarePartners), brought a cross-motion for directions regarding its cross-appeal.

Aviva had abandoned its appeal after an application judge found partial insurance coverage but did not address apportionment of costs, an issue Aviva intended to pursue in a new application.

CarePartners' subsequent supplementary cross-appeal raised res judicata and issue estoppel, which Aviva's counsel had not anticipated when abandoning the appeal.

The court dismissed Aviva's motion, finding the abandonment was a deliberate strategic decision, not due to inadvertence, mistake, or misapprehension.

The court emphasized the importance of finality in litigation and found Aviva's proposed appeal on apportionment lacked merit as the issue was not raised before the application judge.

CarePartners' cross-motion for directions was granted.

The respondent, Sara Baker, suffered a stroke and was denied long-term disability benefits by the appellant, Blue Cross Life Insurance Company of Canada.

A jury at trial found in favour of Baker, awarding retroactive benefits, aggravated damages, and $1.5 million in punitive damages, along with full indemnity costs.

Blue Cross appealed the punitive damages award and sought leave to appeal the costs award.

The Court of Appeal dismissed the appeal of the punitive damages, finding ample evidence of Blue Cross's reckless indifference or deliberate strategy to deny benefits, and that the quantum was rationally connected to deterrence.

The Court granted leave to appeal costs but ultimately dismissed the costs appeal, upholding the full indemnity costs based on Blue Cross's misconduct and the respondent's settlement offer, correcting the trial judge's reasoning for the costs award.

The defendants, P. James Wallbridge and Wallbridge, Wallbridge, sought to add the Attorney General of Canada (AGC) as a party defendant to allow for apportionment of liability in a negligence claim related to the Independent Assessment Process (IAP) under the Indian Residential Schools Settlement Agreement (IRSSA).

The plaintiffs alleged the defendants were negligent in failing to ensure a complete documentary record was before the IAP adjudicator.

The defendants argued adding the AGC was necessary for procedural fairness and effective apportionment, especially given the Crown's immunity from non-party discovery.

The court granted the motion to add the AGC but imposed significant limitations on its participation, including no requirement to file pleadings or attend trial (unless summoned), and restricted discovery rights.

The applicant insurer sought a declaration that it had no duty to defend or indemnify the respondent insured in a class action arising from a cyber attack and data breach.

The insurer relied on a Data Exclusion Endorsement in the commercial liability policy.

The court found that while the endorsement excluded coverage for personal injury claims arising from the distribution of data, it did not exclude coverage for bodily injury claims.

Because the underlying class action included allegations of bodily injury resulting from the insured's negligence in safeguarding data, the insurer owed a duty to defend and indemnify.

The application was dismissed.

The appellants appealed a motion judge's decision refusing to allow them to amend their pleading to add a claim for punitive damages after the action was set down for trial.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's determination that the significant delay in seeking the amendment resulted in presumed non-compensable prejudice to the respondent.

The court affirmed that requiring a party to change its entire litigation strategy late in the proceedings constitutes non-compensable prejudice.

While the motion judge had granted leave to increase compensatory damages, the denial of leave for punitive damages was upheld due to the unexplained, lengthy delay and its impact on the respondent's defence.

The plaintiffs sought an adjournment of a fixed 32-day jury trial, scheduled to commence on May 16, 2022, due to their intention to appeal a prior order that dismissed their request to add a punitive damages claim and denied leave for a further affidavit of documents.

The court denied the adjournment, emphasizing that the action, stemming from a 2014 incident, had been set down for trial twice and counsel had previously certified readiness.

The judge found no extenuating circumstances to justify adjourning a long-booked trial, noting the plaintiffs' delay in seeking amendments and pursuing an appeal.

This class action, initiated in 2017 following a 2015 train derailment, faced a motion by Canadian National Railway Company (CN) for dismissal due to delay under section 29.1(1) of the Class Proceeding Act, 1992.

CN argued that no certification motion was pending, nor was there a court-ordered timetable for advancement by the October 1, 2021, deadline.

The plaintiffs contended that the court had established a timetable through prior case management conference endorsements, which included steps like environmental assessments and subsequent case management conferences.

The court found that the ordered environmental assessment and subsequent case management conferences constituted "steps required to advance the proceeding" and thus a valid timetable under the Act.

Consequently, the motion to dismiss for delay was refused.

This appeal concerned the interpretation of section 18.1 of the Civil Remedies Act, 2001, regarding court approval of settlements in forfeiture proceedings.

The Attorney General of Ontario sought approval for a settlement with an interested party (Rosa Norwood) for a payment from seized property proceeds, without a prior judicial determination that the property was tainted by unlawful activity.

The appellants (Michael Norwood's Estate and 947014 Ontario Inc.) argued this was an error.

The Court of Appeal held that a "settlement in relation to a proceeding under this Act" must relate to in rem property interests, which necessitates a prior finding that the property is proceeds or instruments of unlawful activity.

The court found the motion judge erred in approving the settlement without such a finding, as it purported to settle in rem interests of others without their rights being displaced.

The appeal was allowed, and the settlement approval order was set aside.

This appeal concerned the interpretation of an exculpatory clause (clause 28) in a preconstruction condominium purchase and sale agreement.

The appellants sought to recover more than their deposit plus interest upon termination of the agreement.

The court affirmed the motion judge's finding that clause 28, which limited the respondent's liability to the deposit plus interest, was clear and not altered by the incorporated Tarion provisions, as it represented an agreed allocation of risk consistent with the Tarion framework.

The appeal was dismissed.

This is an appeal of the dismissal of a medical malpractice claim.

The Court of Appeal found that the trial judge's reasons were insufficient for appellate review, failing to analyze essential components of the plaintiff's theory of liability and explain his findings on the standard of care.

Additionally, the trial judge erred in his contradictory treatment of a formal admission regarding the abscess location, effectively disregarding it despite having previously denied a motion to withdraw it.

This resulted in an unfair trial for the plaintiff.

The appeal was allowed, the judgment set aside, and a new trial ordered.

The plaintiffs, purchasers of condominium units, sued the defendant developer for breach of contract after the project was terminated and deposits returned.

The plaintiffs alleged the developer failed to take commercially reasonable steps to satisfy financing conditions and obtain municipal approvals.

The defendant brought a cross-motion for summary judgment, relying on an exculpatory clause (Clause 28) in the agreements that limited liability to the return of deposits.

The court granted the plaintiffs leave to amend their statement of claim but ultimately granted the defendant's summary judgment motion, dismissing the plaintiffs' action.

The court found Clause 28 enforceable, applying the three-step Tercon Contractors analysis, concluding it applied to the circumstances and was not contrary to public policy, even if a fundamental breach occurred.

The appellants, lawyers and the Attorney General of Canada, appealed a motion judge's dismissal of their motion to dismiss an action brought by an Indian Residential School survivor.

The appellants argued the survivor's action was barred by a release and cause of action bar contained in the Indian Residential Schools Settlement Agreement (IRSSA) approval order.

The survivor's action alleged psychological harm due to the initial dismissal of his Independent Assessment Process (IAP) claim, stemming from Canada's alleged failure to disclose relevant documents and the lawyers' negligence.

The Court of Appeal upheld the motion judge's decision, finding that the release did not encompass claims arising from Canada's failure to fulfill its obligations under the IRSSA, nor did it bar the survivor's claim against his former lawyers.

This defamation action involved a motion to set the terms of a discovery plan.

The defendant, Fay Brunning, sought broad documentary disclosure from the plaintiffs, including files related to numerous clients in "Cochrane Actions" and "IAP claims," based on a defence of justification.

The plaintiffs were willing to disclose documents related to a specific client (Claimant H) but argued that Brunning's justification defence was not sufficiently particularized to warrant broader disclosure.

The court found Brunning's request for disclosure overly broad and not supported by the pleadings, limiting disclosure to Claimant H's case and specific communications.

The court also set terms for oral discovery and awarded costs to the plaintiffs.

The plaintiff, an Indian Residential School survivor, sued his former lawyers (the Wallbridge defendants) for negligence.

The negligence claim arose after the defendants initially failed to secure him compensation through an IAP claim for sexual abuse, causing him significant psychological harm.

The plaintiff later succeeded in obtaining compensation with new counsel.

The defendants moved to dismiss the negligence action as an abuse of process, arguing it was barred by the 2006 Indian Residential Schools Settlement Agreement (IRSSA) Approval Order.

The court dismissed the motion, holding that the release provisions in the Approval Order did not encompass causes of action that arose after its effective date, nor could claims of solicitor's negligence in the prosecution of an IAP claim have been within the contemplation of the parties to the IRSSA.

In a defamation action arising from statements about the handling of Indian Residential Schools Settlement Agreement claims, the plaintiffs brought a motion to strike portions of the statement of defence or, alternatively, for particulars.

The court dismissed the motion to strike due to unexplained delay under Rule 2.02, noting it was brought eight months after pleadings closed.

The alternative request for particulars was also dismissed because the plaintiffs failed to show they were unable to plead their case without them.

The defendant, Sunlife Assurance Company of Canada, brought a motion seeking an order to compel the plaintiff, Suzanne McGee, to undergo a neuropsychological evaluation and to adjourn the scheduled pre-trial and trial dates.

The defendant argued this was necessary due to a perceived change in opinion from the plaintiff's orthopedic expert following a Functional Abilities Evaluation (FAE).

The court found that the orthopedic expert's subsequent letter merely summarized the FAE's conclusions, which were outside his area of expertise, and did not constitute a new expert opinion requiring a response.

The court also noted the defendant had previously decided against obtaining its own FAE.

The motion was dismissed, and the defendant was ordered to pay costs to the plaintiff.