Geoffrey Larmer

This decision addresses the certification of a common issue regarding the aggregate assessment of damages under s. 24(1) of the Class Proceedings Act, 1992, in a class action concerning improper access to personal health information.

Following the certification of the class action itself, the court considered whether a 'base amount' or 'minimum award' of damages could be determined in the aggregate for all class members, without individual proof of loss.

The court rejected the defendants' arguments that aggregate damages were only applicable to causes of action with a deterrence element or that the case was factually distinguishable from precedent.

It concluded that a common issues trial judge could determine a base amount of damages given that every class member's privacy was breached in the same manner.

The North Bay Regional Health Centre brought a motion under Rule 21 to preclude Andrea Kendall from acting as a representative plaintiff in a proposed class proceeding.

The hospital argued that a release signed by Kendall in a prior medical malpractice action might impair her ability to represent the class due to a potential conflict of interest.

The court granted leave to file an affidavit from Kendall's former counsel and determined that the evidentiary record was sufficient to interpret the release.

The court found that the release, objectively interpreted based on its terms and the surrounding circumstances, did not bar Kendall's claim for tortious intrusion upon seclusion, as it was specifically limited to claims arising from the prior medical malpractice action.

Consequently, Kendall was not precluded from acting as a representative plaintiff, and the hospital's motion was dismissed.

Following dismissal of the defendant’s summary judgment motion, the court addressed the quantum of costs payable to the successful plaintiff.

The plaintiff sought over $35,000 in partial indemnity fees plus disbursements.

The court held that time spent by newly retained counsel familiarizing himself with the file should not be included in the costs award and that the motion involved a discrete issue and a relatively simple record.

The court declined to impose sanctions for disclosure of an expired settlement offer but ordered the plaintiff’s written submissions sealed.

Partial indemnity costs of $10,000 plus disbursements were awarded.

The defendant insurer moved for summary judgment dismissing an action for long-term disability benefits on the basis that it was commenced outside the applicable limitation period.

The court held the insurer failed to validly contract out of the two-year limitation period in the Limitations Act, 2002 because the limitation provisions in the policy booklet and contract were ambiguous and did not clearly describe the shortened limitation period.

The court further held that the statutory limitation period began to run only when the insured was advised that her final appeal of the benefits denial had failed.

As the action was commenced within two years of that date, the claim was timely.

The motion for summary judgment was dismissed and a declaration issued confirming the action was commenced within the limitation period.

During a scheduled status hearing under Rule 48.14 of the Rules of Civil Procedure, the parties filed a consent request to adjourn the hearing, marking at least the second such adjournment.

The court emphasized that Rule 48.14 functions as a limited form of case management designed to ensure timely resolution of disputes and proper allocation of judicial resources.

The judge noted that repeated consent adjournments undermine the oversight purpose of the rule.

Although the adjournment was granted, the court required the parties either to attend the next status hearing or comply with Rule 48.14(10) in advance.