Kevin L. Ross

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.

This decision addresses competing carriage motions in proposed class actions concerning business interruption insurance claims related to the COVID-19 pandemic.

The court considered an "omnibus" action against 16 insurers and several focused actions against Aviva.

The court ruled that the Aviva-specific actions should proceed expeditiously, carved out from the omnibus action, with the Nordik Consortium and Lerners LLP appointed as carriage counsel for the Aviva claims.

The Workman Consortium was appointed carriage counsel for the omnibus action, excluding the Aviva defendants.

The decision prioritized the best interests of the class, fairness to defendants, and the objectives of the Class Proceedings Act, particularly access to justice and expeditious determination.

The plaintiff sought costs for three contested motions in a class action regarding a listeria outbreak: a motion for leave, a certification motion, and a summary judgment motion.

The defendants argued for no costs or a reduced award, citing divided success and the novelty of the legal issues.

The court found the plaintiff was the successful party overall and that the issues were not novel.

The court awarded the plaintiff costs of $10,000 for the leave motion, $120,000 for the certification motion, and $20,000 for the summary judgment motion, plus disbursements and HST.

The defendants were successful on a motion for leave to appeal brought by the plaintiffs in a class proceeding.

The defendants sought partial indemnity costs of $10,000, while the plaintiffs suggested $5,000 was appropriate given the motion was in writing.

The court fixed costs at $6,500 payable forthwith, considering the costs awarded on the underlying contempt motion and the merits of the leave application.

The plaintiff, a Mr. Sub franchisee, sought to certify a class action against Maple Leaf Foods Inc. and Maple Leaf Consumer Foods Inc. following a listeriosis outbreak in 2008 linked to the defendants' ready-to-eat (RTE) meats, which were exclusively supplied to Mr. Sub franchisees.

The plaintiff alleged negligence, including breach of duty to provide fit products, duty to warn, and negligent misrepresentation, resulting in economic losses such as lost sales, profits, and goodwill.

The defendants challenged the existence of a cause of action, particularly regarding foreseeability, proximity, and policy considerations for economic loss claims.

The court found that the plaintiff had satisfied all five certification criteria under the Class Proceedings Act, 1992, including disclosing a viable cause of action for economic losses based on negligent supply of dangerous goods and negligent misrepresentation.

The court rejected the defendants' arguments that the claim was essentially for breach of continuous supply or that policy concerns regarding indeterminate liability should negate a duty of care, noting the close relationship between the parties and the public danger posed by the contaminated product.

The motion to certify the class action was granted.

The plaintiff sought leave of the court to bring its motion for certification of a class proceeding and for its appointment as representative plaintiff, pursuant to s. 2(3)(b) of the Class Proceedings Act, 1992, after the statutory 90-day period had expired.

The defendants opposed the motion, arguing prejudice due to the delay.

The court granted leave, finding that the 90-day rule is frequently not strictly observed, there was no evidence of actual prejudice to the defendants (who had preserved documents and were subject to prior investigations), and the court's consent to a timetable for the certification motion implied leave.

The court emphasized that denying leave would be unjust given the circumstances and the defendants' late challenge to the plaintiff's right to bring the motion.

The plaintiffs in two class action proceedings sought leave to appeal the dismissal of their motion for contempt against the defendants.

The contempt motion alleged that the City of Windsor breached an order limiting communication with class members during an opt-out period.

The court denied leave to appeal, finding that the original judge correctly applied the test for contempt, which requires proof beyond a reasonable doubt, a clear and unequivocal order, and deliberate and willful disobedience.

The court found no error in the original judge's conclusion that the order was ambiguous and that a wilful breach was not proven.

Furthermore, the court determined that the plaintiffs failed to identify any conflicting decisions or raise matters of such importance to warrant leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The defendant was entirely successful on a motion to compel the production of a bishop for examination for discovery and sought costs.

The plaintiff argued the defendant should be denied costs because its counsel failed to disclose a recent, allegedly similar decision by another judge.

The court held that the undisclosed decision dealt with different, narrower issues and was not binding, so the failure to disclose it did not deprive the defendant of costs.

Finding no reprehensible conduct by the plaintiff, the court awarded the defendant partial indemnity costs fixed at $15,000.