Gordon A. Marsden

In a class action against a long-term care home regarding a COVID-19 outbreak, the parties agreed on the terms of a certification order except for the temporal scope of discovery regarding infection prevention and control (IPAC).

The defendants sought to limit questions to the three weeks prior to the first outbreak, while the plaintiff sought an undefined period leading up to the outbreak.

The court adopted the plaintiff's flexible approach, holding that the relevance of IPAC matters preceding the outbreak must be assessed on a question-by-question basis during discoveries.

The plaintiffs brought a motion on consent for an order certifying a class action against the defendants regarding COVID-19 outbreaks at a retirement home.

The plaintiffs alleged the defendants were grossly negligent in their response to the pandemic, resulting in infections and deaths.

The court found the requirements of section 5(1) of the Class Proceedings Act were met and certified the action on the terms proposed by the plaintiffs.

The plaintiffs brought a motion on consent to certify a class action against the defendants regarding their response to COVID-19 outbreaks at a retirement residence.

The plaintiffs alleged the defendants were grossly negligent in their infection prevention and control measures, resulting in preventable infections and deaths.

The court found that the requirements of section 5(1) of the Class Proceedings Act were satisfied and certified the action on the terms proposed by the plaintiffs.

The appellant appealed a costs award of $300,000 made by the trial judge following a motor vehicle accident case.

The respondent was struck by a vehicle driven by the appellant while crossing a pedestrian crossing.

After a three-week jury trial, the jury awarded the respondent $24,166 in general damages and $26,000 in special damages for past income loss, with a net recovery of $16,160.50 after accounting for contributory negligence and statutory deductibles.

The trial judge awarded costs on a partial indemnity basis, finding the respondent was more successful at trial.

The appellant argued the costs award was wholly disproportionate to the modest recovery and that the trial judge erred in finding the respondent was more successful.

The Court of Appeal dismissed the appeal, upholding the costs award.

The plaintiff, Erwin Banfi, brought a motion for approval of a class action settlement and class counsel fees against multiple municipal and provincial defendants concerning alleged increased flood risk and reduced property values due to overdevelopment in Oakville.

The action, initially premised on property diminution, shifted focus due to difficulties in proving causation and quantifying individual damages.

The proposed settlement involved a $500,000 payment by defendants to the Intact Centre on Climate Adaptation for a flood education and protection program for class members, and class counsel fees of $495,000.

The court approved the cy-près settlement, finding it fair, reasonable, and in the best interests of the class, given the litigation's challenges and the material benefit provided to class members.

Class counsel fees and a $5,000 honorarium for the representative plaintiff were also approved.

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.

The appellant insurer appealed a Licence Appeal Tribunal decision regarding the calculation of Income Replacement Benefits (IRBs) for a self-employed lawyer injured in a motor vehicle accident.

The Divisional Court found that the LAT adjudicator erred in law by applying section 4(2)3 of the Statutory Accident Benefits Schedule, which applies to employed persons, rather than section 4(3), which applies to self-employed persons.

The appeal was granted, the LAT decision was set aside, and the matter was remitted for a fresh hearing.

Following the settlement of a class action regarding negligent dental services and infection risks, Class Counsel brought a motion for approval of an additional fee of $185,000 for administering the settlement.

The court noted that the claims process resulted in a recovery of $472,450 for class members and OHIP.

Finding that Class Counsel provided competent and diligent services and would experience a deficiency in payment compared to their billable rates, the court approved the additional fee.

The plaintiff brought an ex parte motion to extend the time for service of a statement of claim arising from a slip and fall.

The delay in service was caused by the plaintiff failing to keep her lawyers informed of her contact information, rather than difficulty in serving the defendants.

The court adjourned the motion and directed that the defendants be served with the notice of motion, as it was desirable and preferable for them to be heard on the issue of prejudice.

The plaintiffs brought a motion for approval of a class action settlement and class counsel fees.

The class action arose from allegations that the defendants' dental clinic failed to follow proper infection prevention and control practices, exposing patients to communicable diseases.

The court approved the settlement, which provides compensation to eligible class members, and approved class counsel's initial fee request of $250,000, finding both to be fair and reasonable.

The plaintiffs moved to certify a proposed class action for settlement purposes against a dental clinic and several dentists.

The action alleged negligence in infection control and prevention practices, exposing patients to communicable diseases.

The court found that the five-part test for certification under section 5 of the Class Proceedings Act, 1992 was met.

The action was certified on consent for settlement purposes.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action for coverage of water damage to her property.

The insurer argued that the policy's vacancy exclusion applied because the plaintiff, who had moved to a retirement home due to cognitive impairment, had no intention of returning.

The court found that the plaintiff lacked the capacity to form an intention to return and that there was no objective plan for her to do so.

The court concluded there was no genuine issue for trial regarding the vacancy exclusion and granted the summary judgment motion, dismissing the action.

The appellant insurer appealed an order requiring it to defend the respondents in an action arising from an ATV accident.

The insurer denied coverage on the basis that the ATV was not required to be insured as it was being operated on private property and did not fall under the definition of "automobile" in the OAP 1.

The Court of Appeal upheld the application judge's decision, finding that the pleadings alleged facts permitting a finding that the respondents were not occupiers of the property at the time of the accident, which was sufficient to trigger the insurer's duty to defend under the policy.

Following a two-week jury trial where the plaintiff was awarded $81,658.83 net, the court determined costs.

The defendant argued that its $100,000 settlement offer engaged Rule 49 consequences.

The court applied the principles from Rooney v. Graham, finding that when the costs terms of the offer were factored in, the judgment achieved was more favourable than the offer.

Furthermore, the offer was not served at least seven days before the hearing as required by Rule 49.

The plaintiff was awarded partial indemnity costs throughout.

The applicants sought a declaration that their automobile insurer had a duty to defend them in a personal injury action arising from an all-terrain vehicle (ATV) accident.

The insurer denied coverage, arguing the ATV was an off-road vehicle driven on private property and not an automobile under the Insurance Act.

The court found that the underlying statement of claim contained alternative allegations that the applicants owned the ATV but were not occupiers of the property where the accident occurred.

If proven, these facts would mean the ATV was a newly acquired automobile covered by the policy.

The court granted the application, holding the insurer had a duty to defend.

The defendants sought leave to appeal a costs order made by Corkery J. following a settlement.

The underlying issue concerned whether costs and disbursements ran to the date of service of the settlement offer or the date of acceptance, impacting costs accumulated over a two-month period.

The court dismissed the application for leave to appeal, finding that the defendants did not meet the grounds under Rule 62.02 of the Rules of Civil Procedure, as there were no conflicting decisions on principles of costs interpretation and no good reason to doubt the correctness of the original order.

An insurer sought to amend its statement of defence approximately nine years after a fire destroyed the insured's restaurant to assert that the insured had deliberately set the fire, rather than relying on its original defence of non-cooperation with the fire investigation.

The motion judge dismissed the amendment motion and awarded substantial indemnity costs.

The Court of Appeal upheld the dismissal of the amendment but reduced the costs award, finding that while the insurer's delay was inordinate and triggered a presumption of prejudice that was not rebutted, the conduct did not rise to the level of egregious misconduct warranting substantial indemnity costs.

The parties settled a personal injury action on the first day of trial after the plaintiff accepted the defendants' offer to settle for $150,000 plus costs to be agreed or assessed.

The defendants brought a motion arguing the plaintiff was only entitled to costs up to the date the offer was served, relying on previous case law.

The court rejected this argument, finding that the plain language of the offer and the Rules of Civil Procedure entitled the plaintiff to partial indemnity costs up to the date the offer was accepted.

The court referred the assessment of costs to an assessment officer and allowed the plaintiff's expert disbursements.

The plaintiffs successfully opposed a motion by the Zimmer defendants to stay their action.

The court awarded the plaintiffs costs of $10,826.50 on a partial indemnity basis, payable "in any event of the cause" acknowledging the novelty and importance of the motion while deferring actual payment until the action's merits are determined.

The defendants, Zimmer GmbH, Zimmer, Inc., and Zimmer of Canada Limited (collectively "Zimmer"), moved for an order staying the individual action brought by the plaintiffs, Heather Ann Crider and Adrian Wilson, against them.

Zimmer argued that the plaintiffs were class members in overlapping medical products liability class actions (McSherry in Ontario and Jones in British Columbia) concerning the "Durom Cup" hip implant device manufactured by Zimmer, and thus their individual claims should be stayed or barred by res judicata.

The court found that while Ms. Crider technically remained a class member in the McSherry action due to compliance with the court-ordered notice plan, she had informally communicated her intent to opt out of the class action to class counsel prior to the opt-out deadline.

The court concluded that Ms. Crider should be permitted to opt out of the McSherry Action, preserving her litigation autonomy, and therefore dismissed Zimmer's motion for a stay.