Gordon Marsden

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.

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.

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 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 defendant insurer brought a motion to amend its statement of defence to allege that the plaintiffs committed arson and fraud, eight years after the fire that destroyed the plaintiffs' business.

The insurer had originally only pleaded a lack of co-operation.

The court dismissed the motion, finding that the extreme and unexplained delay in seeking the amendment would cause non-compensable prejudice to the plaintiffs, who had lost the opportunity to properly investigate the allegations when the evidence was fresh.

The court also noted concerns regarding the insurer's duty of utmost good faith.

The defendants brought a motion to strike a lengthy self-represented statement of claim alleging conspiracy and misconduct by police and public officials.

The plaintiff alleged that police had conducted a long-standing covert campaign of harassment, including tampering with computers, contaminating groceries with chemical hazards, and collaborating with landlords to render him homeless.

The claim against the moving defendants was based on allegations that they failed to investigate complaints about these actions.

The court held that the pleadings disclosed no viable cause of action in law even if the pleaded facts were assumed to be true.

Finding that no amendment could cure the defects and that the allegations were incapable of sustaining a legal claim, the action against the moving defendants was dismissed without leave to amend.

The self-represented plaintiff sued the police for assault, wrongful arrest, and other torts after being apprehended and taken to a hospital for a psychiatric assessment.

The defendants moved for summary judgment.

The court found that the police had reasonable and probable grounds under the Mental Health Act to apprehend the plaintiff, who was exhibiting paranoid and delusional behaviour.

The medical assessment at the hospital confirmed the police's concerns.

The court concluded there was no genuine issue requiring a trial and dismissed the action.

Following a global settlement of claims arising from three motor vehicle accidents, the moving defendants sought to consolidate two actions and amend their pleadings to pursue a crossclaim for contribution and indemnity against another driver and that driver’s insurer.

The court considered Rule 6 of the Rules of Civil Procedure and whether the gateway criteria for consolidation were met.

Because the plaintiff had already executed a full and final release resolving all claims, there were no remaining questions of law or fact between the actions.

The court further held that any contribution and indemnity claim was statute‑barred under the Limitations Act, 2002 because the defendants failed to commence a third party claim within two years of service of the statement of claim.

The motion for consolidation and related relief was therefore denied.

A third party insurer brought a motion seeking dismissal of a crossclaim and third party claim and requesting costs incurred in defending those claims.

The claims had been initiated after the third party insurer initially denied coverage for a motor vehicle accident based on an alleged breach of statutory conditions.

After the third party insurer clarified its position that coverage was denied only because the driver lacked consent, the claims were discontinued by agreement.

The court held that the claims were not frivolous or vexatious when commenced because they were prompted by the insurer’s earlier denial of coverage.

The motion for costs by the third party insurer was dismissed, and the opposing insurer was awarded costs of the motion.