Jacqueline M. Palef

The appellants, small and mid-size businesses, appealed a class action decision regarding business interruption insurance claims stemming from the COVID-19 pandemic.

They sought coverage for revenue losses, arguing that the presence of SARS-CoV-2 or civil authority orders constituted "physical loss or damage" to their property under their insurance policies.

The Court of Appeal upheld the trial judge's finding that neither the virus's presence nor the civil authority orders met the "physical loss or damage" criteria for business interruption coverage.

The appeal was dismissed, and costs were awarded to the respondents.

The applicants, claimants under a Hepatitis C class action settlement, sought leave to sue the settlement administrator, Crawford & Company (Canada) Inc., for breach of contract, negligence, and breach of fiduciary duty.

They alleged mismanagement of the Past Economic Loss and Dependents Fund (PELD Fund) and misleading advice regarding compensation options, which resulted in them receiving only a pro-rata share of their approved compensation.

The court granted leave, applying the "reasonable possibility of success" test.

It found that the proposed claims, if proven, demonstrated a reasonable prospect of success for all three causes of action.

The court distinguished the case from prior decisions denying leave, emphasizing that the allegations pertained to the administrator's conduct in providing advice while aware of fund insolvency, rather than merely challenging compensation calculations.

Arguments regarding release and limitation periods were dismissed as premature at this stage.

This endorsement addresses two motions for leave to appeal before the Divisional Court.

The Plaintiffs' motion for leave to appeal a "set aside" order was dismissed with costs awarded to the Defendants.

Concurrently, the Defendants' motion for leave to appeal earlier certification decisions was dismissed without costs, having become moot.

The plaintiffs brought motions to certify three proposed class actions against Aviva Insurance for the blanket denial of coverage for COVID-19-related business loss claims.

The claims focused on 'restricted access' and 'negative publicity' coverage provisions in Aviva's standard-form policies.

The court found that the requirements for certification under the Class Proceedings Act were met, noting the commonality of the standard-form policies and the identical denial letters.

The two Lerners Actions were certified, and the Nordik Action was conditionally certified pending a motion regarding the representative plaintiff.