Kirk Baert

The plaintiffs, representing a class of small to medium-sized businesses, sought coverage under their business interruption insurance policies for losses sustained due to the COVID-19 pandemic and related civil authority orders.

The court held a common issues trial to determine whether the presence of the SARS-CoV-2 virus or government lockdown orders could cause 'physical loss or damage to property' within the meaning of the policies.

The court concluded that the virus does not physically alter or damage inanimate surfaces, and that the loss of use of the premises due to government orders does not constitute physical loss or damage.

Consequently, the court answered the certified common issues in the negative, finding no coverage under the business interruption provisions.

The plaintiff brought a motion on consent to certify a class action against Ticketmaster and Live Nation for settlement purposes.

The claim alleged breach of contract, negligence, and statutory breaches arising from the defendants' failure to provide timely refunds for events postponed or cancelled due to the COVID-19 pandemic.

The court found that the requirements of section 5(1) of the Class Proceedings Act, 1992 were met and certified the action, approving the proposed notices of settlement approval.

The plaintiff brought a motion on consent for an order granting leave to discontinue the proposed class action without costs and without notice to putative class members.

The certification motion had previously been dismissed and the action continued as an individual action.

The court granted the motion, finding no prejudice to former proposed class members who had sufficient opportunity to bring their own claims, which were being case-managed together.

Following the dismissal of a motion to certify a class action regarding unreliable hair drug testing at the Motherisk Drug Testing Laboratory, the plaintiff brought a motion under s. 7 of the Class Proceedings Act, 1992 to continue her action and join approximately 200 co-plaintiffs.

The court held that the limitation periods for the putative class members remain suspended under s. 28 of the Act until the defendants successfully move to dismiss the proceeding without an adjudication on the merits.

The court also held that the test for joining co-plaintiffs under s. 7 is the same as the test under the Rules of Civil Procedure.

The motion to join the co-plaintiffs was dismissed without prejudice due to insufficient pleading of material facts.

Following the dismissal of the plaintiffs' motion for pre-discovery production from non-party Volkswagen (VW), VW sought partial indemnity costs of $29,487.29.

The plaintiffs argued the motion was straightforward and suggested an award of $5,000.

The court noted the motion was of substantial importance to both parties but found some evidence of over-lawyering by VW.

Applying the factors under Rule 57.01(1), the court fixed costs at $22,000 all inclusive.

Following the certification of a class action regarding emission levels in BlueTEC diesel vehicles, the plaintiff sought costs of $569,882 on a partial indemnity basis.

The defendants argued for no costs due to divided success.

The court found that while the plaintiff was largely successful, significant time was wasted on misguided aggregate damages submissions.

Applying the Grid rates and reducing the fees and disbursements to account for the unsuccessful arguments, the court fixed costs at $225,000 all-inclusive.

In a proposed class action regarding youth detention centres, the plaintiff sued the Crown for negligence, breach of fiduciary duty, and Charter violations, explicitly limiting the claim to the Crown's several liability.

The Crown issued third party claims against the NGOs that operated some of the centres.

The plaintiff and the NGOs moved to strike the third party claims.

The court granted the motions, applying the principle that where a plaintiff limits their claim to the defendant's proportionate degree of fault, a third party claim for contribution and indemnity is legally untenable.

In a proposed class action regarding the use of secure isolation in youth detention centres, the Crown brought a motion seeking production of the representative plaintiff's Youth Records.

The plaintiff opposed, arguing the Superior Court lacked jurisdiction to order production under the Youth Criminal Justice Act.

The court held that while it could not directly order production of the records, it had jurisdiction under the Class Proceedings Act to order the plaintiff to apply to the Youth Justice Court for access to the records.

The court ordered the plaintiff to make the application, failing which the proposed class action would be stayed.

The moving parties sought leave to appeal a decision dismissing their motion to disqualify the respondents' counsel of record due to an alleged conflict of interest.

The conflict allegation arose after an associate lawyer, who previously worked at the law firm representing the moving parties, joined the law firm representing the respondents.

The court applied the test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court found no conflicting decision to satisfy Rule 62.02(4)(a) and no reason to doubt the correctness of the motion judge's order or any matter of general importance to satisfy Rule 62.02(4)(b).

The motion for leave to appeal was dismissed with costs awarded to the respondents.

The plaintiffs brought a proposed class action alleging that the defendant financial institutions conspired to fix prices in the foreign exchange (FX) market.

The plaintiffs reached settlement agreements with three groups of defendants (Goldman Sachs, JPMorgan, and Citi) totaling $39.25 million.

The plaintiffs moved for an order certifying the action as a class proceeding for settlement purposes against these settling defendants and approving the notice plan.

The court found that the criteria for certification under section 5 of the Class Proceedings Act, 1992 were satisfied and granted the order.

The plaintiffs brought a class action alleging that numerous financial institutions conspired to manipulate the foreign exchange market.

The plaintiffs reached early settlements with three groups of defendants (UBS, BNP, and Bank of America) totaling $15,950,000.

The plaintiffs sought court approval of the settlements and Class Counsel's fee request.

The court approved the settlements, finding them fair, reasonable, and in the best interests of the class, particularly given the litigation risks and the value of the settling defendants' cooperation.

The court also approved Class Counsel's fee request of $3,987,500 plus disbursements.

The plaintiffs sought leave under s. 138.8 of the Securities Act and certification under the Class Proceedings Act for a proposed securities class action.

The plaintiffs alleged that the defendants misrepresented the company's ability to maintain its dividend, causing shareholders and debenture-holders to sustain losses when the dividend was cut.

The court dismissed the leave motion, finding no reasonable possibility that the secondary market misrepresentation claims would succeed at trial, as the defendants' statements were based on a genuine belief in their growth strategy at the time.

The court also dismissed the certification motion, holding that a class proceeding was not the preferable procedure for the remaining common law negligent misrepresentation claims, which require individualized proof of reliance.

A carriage motion was brought to determine which of two competing groups of class action firms should conduct a proposed securities class proceeding against a mining company and its executives arising from alleged misrepresentations about a Chilean mining project.

One action advanced a single claim based on environmental misrepresentations, while the competing action advanced multiple claims including environmental, capital expenditure, accounting misrepresentation, conspiracy, and limitation‑related doctrines.

The court held that on a carriage motion the judge should not determine which claim is most likely to succeed but should assess whether claims are viable and free of obvious defects.

The competing action advancing multiple viable claims and demonstrating a substantially higher level of preparation was found to better serve the interests of the class.

Carriage was therefore granted to the more comprehensive and better prepared action.