Heikki Cox-Kikkajoon

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 applicant brought a motion arising from an assessment of costs, seeking to invalidate a contingency fee agreement (CFA) because it lacked a mandatory statement regarding his right to make critical decisions.

The respondent law firm brought a cross-motion to declare the applicant a vexatious litigant.

The court found the CFA was fair and reasonable because the applicant's conduct demonstrated he was fully aware of his right to control the litigation.

The court dismissed the respondent's motion, holding it lacked jurisdiction to declare a vexatious litigant on a motion rather than an application.

Both motions were dismissed with no order as to costs, and the matter was remitted to the assessment officer.

The plaintiffs brought a motion seeking an order extending the time for service of a Statement of Claim nunc pro tunc nearly four years after issuance and several years after the expiration of the service deadline under Rule 14.08(1) of the Rules of Civil Procedure.

The court applied the factors from Chiarelli v. Weins, including notice to the defendant before expiry of the limitation period, the promptness of the motion, the reasonableness of any inference that the claim had been abandoned, the plaintiff’s role in the delay, and prejudice to the defendant.

The court found that the defendant had no notice of the claim until after the limitation period expired, the plaintiffs failed to act promptly to seek an extension, and the explanation of solicitor inadvertence amounted to prolonged neglect rather than a mere slip.

The delay created presumptive and actual prejudice, including jeopardizing the defendant’s ability to bring a third party claim.

The motion to extend time for service was therefore dismissed.

Following a jury verdict awarding damages for general damages and future care expenses arising from a motor vehicle accident, the trial judge had previously dismissed the claims after finding the plaintiff failed to meet the statutory threshold for non-pecuniary damages.

The plaintiff brought a motion seeking judgment for caregiver expenses, arguing they were included within the jury’s award for “future care expenses” and were not subject to the threshold.

The court held that it lacked jurisdiction to interpret or speculate about the jury’s intentions in rendering the award.

Because the jury’s verdict was clear and the questions posed were agreed to by counsel, the court could not recharacterize any portion of the award as caregiver expenses.

The motion was dismissed.

Following a jury verdict in a motor vehicle accident trial awarding modest general damages and future care costs, the defendants brought a post-verdict threshold motion under s. 267.5(5) of the Insurance Act seeking a declaration that the plaintiff’s injuries did not meet the statutory threshold for recovery of non-pecuniary damages and related health care expenses.

The court reviewed the medical evidence concerning the plaintiff’s pre-existing shoulder injury from an earlier accident and alleged exacerbation from the subject accident.

The judge found that the plaintiff already had a permanent disability prior to the second accident and that the evidence did not establish a new permanent serious impairment of an important physical, mental, or psychological function.

The court also found insufficient evidence linking the plaintiff’s later low back complaints to the accident.

Considering the medical evidence and the modest jury awards, the court concluded that the statutory threshold was not met.