Kirk Michael Marius Baert

The plaintiff discontinued a proposed class action against the defendant, a discount brokerage firm, after the certification motion was adjourned.

The defendant sought costs for defending itself against the certification motion.

The plaintiff argued the costs were excessive and should be apportioned among the multiple defendants originally sued.

The court awarded costs to the defendant on a partial indemnity basis, reduced by approximately 25% to account for access to justice concerns in class action litigation.

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 plaintiff, Dr. Darryl Gebien, sought court approval for a Third-Party Funding Agreement with Omni Bridgeway Ltd. for a proposed class action against numerous pharmaceutical companies regarding the opioid crisis.

Several defendants objected to specific provisions of the agreement, including those related to amendments, assignments, attornment, costs enforcement, termination procedures, accrued costs, and confidentiality.

The court found that while the agreement generally met the requirements for approval, several of the defendants' objections, particularly concerning comprehensive attornment by Omni Bridgeway Ltd. and the broad confidentiality provisions, were "genuinely meaningful" and required resolution.

The motion for approval was adjourned to allow the parties to address these issues, with the court emphasizing that it is not its role to draft the agreement.

This class action is in the settlement administration phase.

Class Counsel sought an order appointing Doug Mitchell as a bilingual arbitrator to assess appeals filed by class members regarding claims administrator decisions, as contemplated by the court-approved Administration Protocol.

The court granted the motion, finding Mr. Mitchell qualified and his appointment consistent with the fair and expeditious determination of class member appeals under section 12 of the Class Proceedings Act, 1992.

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 appellant, through her litigation guardian, appealed a Divisional Court decision that reversed a certification order for a proposed class action against the Government of Ontario.

The class action alleged negligence in the administration of services for adults with developmental disabilities and a breach of section 7 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal found that the Divisional Court erred in recharacterizing the negligence claim as impugning core policy decisions and in striking the section 7 Charter claim.

The Court held that the negligence claim concerned operational failures within existing resources, and the section 7 claim alleged psychological harm from the arbitrary administration of waitlists for approved services, which was not foreclosed by existing jurisprudence.

The appeal was allowed, restoring the motion judge's certification order.

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 defendants in a proposed opioid class action moved to dismiss the proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

In response, the plaintiff brought a cross-motion for a nunc pro tunc timetable order and commenced parallel proceedings in Manitoba.

The parties reached a settlement wherein the competing motions were dismissed without costs, the Manitoba proceedings would be discontinued, and the Ontario action would be deemed commenced on October 2, 2020, making it subject to the amended certification test under the Smarter and Stronger Justice Act, 2020.

The court approved the settlement and issued the consent orders.

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.

The plaintiff in a proposed class action regarding opioid drug products sought an order on consent to dismiss the action against Sandoz International GMBH, a foreign defendant.

Evidence showed the defendant had no connection to Canada or the products at issue.

The court approved the dismissal pursuant to section 29 of the Class Proceedings Act, 1992.

The plaintiffs brought a motion to certify the action as a class proceeding for settlement purposes against TD, RBC, Credit Suisse, and Deutsche Bank in a case alleging a conspiracy to fix prices in the futures exchange market.

The court found that the criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were met and granted the motion, approving the settlement agreements and the plan of dissemination.

Following the release of its decision allowing the Crown's appeal and setting aside a class action certification order, the Divisional Court entertained post-decision submissions from the respondent based on two new Court of Appeal decisions regarding state liability in negligence.

The court concluded that the new decisions applied settled law and did not alter its previous reasoning.

The court amended its previous disposition to clarify that while the appeal is allowed and the certification order is set aside, the underlying action is not dismissed, leaving that issue for the parties to address below.

The appellant sought to certify a class proceeding against the Crown for failure to hold timely bail hearings, alleging negligence, breach of fiduciary duty, and Charter rights violations.

The motion judge dismissed certification.

The Court of Appeal dismissed the appeal, finding no cause of action in negligence (claims attacked core policy decisions), the fiduciary duty claim abandoned, and the Charter claims lacking common issues and not being a preferable procedure due to the need for individualized assessments.

The plaintiff, acting as litigation guardian for his developmentally disabled daughter, brought a proposed class action against Ontario alleging negligence and section 7 Charter violations regarding the administration of waitlists for adult developmental services.

The motion judge certified the negligence and Charter claims.

Ontario appealed to the Divisional Court.

The Divisional Court unanimously allowed the appeal regarding the Charter claims, finding no positive obligation on the state to provide social assistance.

A majority of the court also allowed the appeal regarding the negligence claims, holding that the administration of the benefits program is a core policy decision protected by Crown immunity.

The appeal was allowed and the action dismissed.

The plaintiff's class action for systemic negligence in bail hearings was denied certification.

On appeal, the Crown raised the new Crown Liability and Proceedings Act, 2019 (CLPA) as a bar to the negligence claim.

The Divisional Court remitted this specific issue to the motion judge.

The judge found that the CLPA did not substantially change the common law on Crown immunity and that the plaintiff's claim, which challenged high-level policy decisions regarding resource allocation and management of the criminal justice system, remained non-justiciable as a core policy matter, both under the CLPA and pre-CLPA common law.

Consequently, the negligence claim was deemed dismissed without costs under s. 11(8) of the CLPA.

The appellants appealed a motion judge's decision declaring that the limitation period for putative class members remained suspended under s. 28(1) of the Class Proceedings Act following the denial of class certification.

The Court of Appeal dismissed the appeal, holding that s. 28(1) provides an exhaustive list of circumstances that resume a limitation period, and denial of certification is not among them.

Consequently, the limitation period remains suspended indefinitely following a denial of certification, a result the court noted must be addressed by the Legislature.

A case management conference was held to set procedural directions for an upcoming virtual appeal hearing before the Divisional Court.

The court issued directions regarding the use of Zoom, attire, and the electronic filing of materials, including factums, compendiums, and authorities via a password-protected drop box.

The Superior Court of Justice, on remittal from the Divisional Court, reconsidered the certification of an operational negligence class action claim against the provincial government in light of the newly enacted Crown Liability and Proceedings Act (CLPA) and a constitutional challenge under s. 96 of the Constitution Act, 1867.

The court found it was not plain and obvious that the operational negligence claim was statute-barred by the CLPA, particularly due to the "decision" requirement in s. 11(4) of the CLPA and the plaintiff's pleadings.

Furthermore, the court determined that the s. 96 constitutional challenge to the CLPA was not plainly and obviously doomed to fail, emphasizing the importance of access to courts and the Supreme Court's caution against restoring complete governmental immunity by broadly defining "policy matters." The court concluded that the meaning and constitutionality of the CLPA should be decided on a complete record at trial or summary judgment, not on a pleadings motion.

The original certification of the operational negligence claim remained intact, and a new common issue regarding the CLPA's effect was added by consent.