Hovsep Afarian

This decision concerns the continuation of refusals motions in complex insurance litigation involving environmental claims at 26 mining sites operated by Vale Canada Limited.

The court addresses the proportionality and sufficiency of discovery efforts, the organization and resolution of thousands of discovery refusals, and sets out directions for further production and inquiry.

The ruling emphasizes the need for balance and proportionality in discovery, especially in large-scale litigation, and provides a framework for resolving outstanding discovery disputes ahead of trial.

This endorsement addresses motions by the defendant insurers to compel Vale Canada Limited to answer refusals arising from oral and written discovery in complex insurance litigation concerning environmental claims at 26 mining sites.

The court reviews the status of discovery, the parties' agreements, and the proportionality of further discovery requests, including the use of exemplar and bridge charts to manage voluminous refusals.

The decision provides detailed directions on categories of refusals, privilege claims, and the process for resolving outstanding discovery issues, emphasizing proportionality, cooperation, and case management to keep the matter on track for trial.

This appeal addresses issues of jurisdiction simpliciter and forum non conveniens in a complex international insurance coverage dispute.

Vale and RSA initiated actions in Ontario seeking coverage for environmental liabilities, primarily in Ontario, after Travelers commenced a similar action in New York.

The motion judge largely found Ontario had jurisdiction and was not forum non conveniens, except for North River.

The Court of Appeal dismissed the insurers' appeals, affirming Ontario's jurisdiction over them, and allowed Vale's appeal, finding Ontario also had jurisdiction over North River.

The court emphasized that a comprehensive general liability insurer underwriting Ontario risks connects itself to Ontario for jurisdictional purposes, and that the "first-to-file" rule does not automatically determine the appropriate forum.

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

Supplemental reasons issued to correct an error in the court's previous decision (2022 ONSC 12).

The court corrected paragraph 4 to clarify that Lloyds should not have been listed as a party challenging the forum of the action.

Vale Canada and its primary insurer, RSA, brought actions against numerous excess insurers for coverage of environmental remediation costs incurred primarily in Ontario.

Several foreign excess insurers brought motions challenging the jurisdiction of the Ontario court or seeking a stay based on forum non conveniens in favour of an action in New York.

The court found it had jurisdiction over all moving insurers except North River Insurance Company, concluding that the insurers were 'carrying on business' in Ontario by participating in a global insurance program for an Ontario-based company.

The court declined to stay the actions for forum non conveniens, finding Ontario to be the 'centre of gravity' for the dispute.

Claims by Vale Canada against two UK insurers were stayed pending arbitration.

The plaintiffs brought an action against multiple insurers for indemnity regarding environmental damage.

Several foreign defendants failed to deliver statements of defence within the required time limits, and one was noted in default.

The defendants sought an extension of time to defend or bring jurisdictional motions, arguing the court should wait for the outcome of a parallel proceeding commenced by one of the insurers in the United States.

The court refused to delay the Ontario proceeding, finding no prejudice to the defendants in requiring them to respond timely, and ordered the defendants to deliver their statements of defence or motion records by a specified deadline.

Following the dismissal of the defendant insurers' motion to temporarily stay 17 individual actions pending the determination of certification in a class proceeding, the successful plaintiffs sought costs on a partial indemnity scale.

The plaintiffs requested $86,589, which the court found excessive for a relatively simple stay motion.

Applying the factors in Rule 57.01(1) and considering proportionality, the court fixed costs at $35,000 all-inclusive, payable by the defendant insurers.

The defendant insurers brought a motion to temporarily stay 17 individual actions for COVID-19 business interruption losses pending the certification of a related class action.

The court dismissed the motion, finding that while there was overlap in issues and facts, staying the individual actions would cause significant injustice and prejudice to the plaintiffs, who had legitimate reasons for pursuing their claims individually and expeditiously.

This endorsement arises from a case conference in a complex action involving TD Bank and numerous insurance underwriters.

The court addressed the management of three pending discovery motions (defendants' refusals, plaintiff's refusals, and defendants' motion for a second discovery representative) and trial management issues.

The court declined the plaintiff's request to expand their refusals motion, permitted the plaintiff to withdraw their existing refusals motion without prejudice, and vacated the scheduled trial date of September 13, 2021, as the action was not ready.

The court provided specific case management directions for completing discoveries, updating motion materials, and preparing for a future trial date.

The plaintiffs brought a motion to settle the Notices of Certification and the Litigation Plan in a class action concerning universal life insurance policies.

The court excluded certain sentences from the Notices of Certification, finding them unnecessary and potentially confusing for class members deciding whether to opt out.

The court also heavily edited the plaintiffs' proposed Litigation Plan, removing extraneous, premature, and confrontational information, noting that a post-certification litigation plan should focus on implementation rather than litigation strategy.

A land surveying company brought a class action on behalf of Ontario land surveyors whose plans of survey had been digitized, stored, and copied by the province's electronic land registry service provider without payment of royalties.

The appellant argued that Crown copyright under s. 12 of the Copyright Act did not vest in the registered and deposited plans.

The majority held that the comprehensive provincial land registration regime gave the Crown complete control over the publication process, satisfying the requirements of s. 12.

A concurring minority agreed on the outcome but adopted a different interpretive framework, requiring both that the work be published 'by or under the direction or control' of the Crown and that the work qualify as a 'government work' serving a public purpose.

The appeal was dismissed without costs.

This is a costs endorsement addressing the allocation of costs for certification and summary judgment motions in the Superior Court and the costs of the appeal to the Court of Appeal for Ontario.

The plaintiffs appealed from orders of Justice Paul M. Perell denying certification and granting summary judgment.

On appeal, the plaintiffs achieved partial success: they obtained certification on some common issues but not on their negligent misrepresentation claim, and they reversed summary judgment on some claims while others remained time-barred.

The Court of Appeal awarded costs to the plaintiffs reflecting their overall success.

This appeal concerns a proposed $2.5 billion class action involving more than 230,000 universal life insurance policies sold by Metropolitan Life Insurance Company between 1985 and 1998.

The plaintiffs alleged misrepresentation in the sale of policies and breach of contractual duties relating to premiums and fees.

The motions judge dismissed the certification motion for misrepresentation claims and initially declined to certify breach of contract claims.

The Court of Appeal allowed the appeal in part, certifying the breach of contract common issues and allowing the plaintiffs to pursue individual misrepresentation claims.

The court found the motions judge erred in principle by failing to conduct individualized and contextual analyses of the limitation period defences and by improperly deciding the merits of the breach of contract claims at the certification stage.

A class action appeal concerning copyright ownership in plans of survey registered or deposited in Ontario's electronic land registry system (ELRS).

The appellant land surveyors claimed that Teranet Inc., which operated the ELRS, infringed their copyright by digitizing, storing, and copying their survey plans.

The motion judge granted summary judgment dismissing the action, finding that copyright in registered or deposited plans belonged to the Province of Ontario under section 12 of the Copyright Act.

The Court of Appeal affirmed this decision, holding that the provincial land registration scheme gave the Crown complete control over registered plans, and that the Crown's publication of those plans through the ELRS occurred under the Crown's direction or control, thereby vesting copyright in the Crown.

This is a costs endorsement following several motions in complex insurance litigation between TD Bank and its fidelity insurers, primarily concerning a successful partial summary judgment motion by TD Bank.

The court addressed the administrative issue of simplifying the style of cause and then considered the principles for awarding costs, emphasizing the "culture shift" towards efficient litigation.

The court confirmed costs in the cause for an earlier production motion and awarded TD Bank $330,000 in all-inclusive costs for the motion for directions and the partial summary judgment motion, to be paid jointly and severally by the defendant insurers, allocated pro rata to their policy exposure.

Following the dismissal of the plaintiffs' motion for class certification and the defendant's mixed success on a summary judgment motion, the defendant sought costs of $3.6 million on a substantial indemnity basis.

The plaintiffs argued the award should not exceed $775,000.

The court declined to award substantial indemnity costs, finding no reprehensible conduct by the plaintiffs in pleading misrepresentation.

Considering the defendant's technical loss on the summary judgment motion, which nonetheless provided a strategic victory in defeating certification, the court fixed costs at $1.0 million on a partial indemnity basis as a fair and reasonable amount.

The plaintiffs brought a motion to certify a class action against a life insurance company, alleging breach of contract regarding increases to the cost of insurance and administrative fees for universal life insurance policies.

The court had previously adjourned the motion to allow for further evidence on how the fees were calculated.

After reviewing actuarial evidence, the court found that the insurer had set and adjusted the fees in accordance with the policy terms and industry practice.

Concluding there was no basis in fact for the breach of contract claims, the court dismissed the certification motion in its entirety.

The defendants, a consortium of insurers, brought a motion to clarify TD Bank's discovery obligations regarding documents subject to solicitor-client, litigation, and settlement/mediation privilege.

TD Bank was seeking indemnity under fidelity policies for amounts paid to settle 19 underlying lawsuits related to a Ponzi scheme.

The court ruled that TD Bank had not implicitly waived solicitor-client privilege through its pleadings.

It also found that litigation privilege for documents created for the underlying litigation was not lost upon settlement, given the close connection to the current coverage dispute.

However, the court determined that TD Bank could not assert settlement privilege over documents related to the underlying settlements, as these were crucial for the insurers to assess the reasonableness and allocation of damages for coverage purposes.