Annelis Thorsen

In a class action against a long-term care home regarding a COVID-19 outbreak, the parties agreed on the terms of a certification order except for the temporal scope of discovery regarding infection prevention and control (IPAC).

The defendants sought to limit questions to the three weeks prior to the first outbreak, while the plaintiff sought an undefined period leading up to the outbreak.

The court adopted the plaintiff's flexible approach, holding that the relevance of IPAC matters preceding the outbreak must be assessed on a question-by-question basis during discoveries.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

The appellant brought a proposed class action against the manufacturers of the prescription drug Prepulsid.

The respondents successfully moved to strike paragraphs of the statement of claim alleging fraudulent or negligent filings with Health Canada and claiming reimbursement of the purchase price.

On appeal, the Court of Appeal allowed the appeal in part, reinstating the paragraphs regarding regulatory filings as they were sustainable under a negligence or negligent misstatement claim.

However, the court upheld the striking of the reimbursement claims, finding they could not be sustained under negligence, breach of contract, or unjust enrichment.

The applicant, a 69-year-old woman, was injured when the city bus she was riding stopped suddenly.

She applied for statutory accident benefits, but the insurer terminated medical benefits and refused to pay for housekeeping.

The arbitrator found that the applicant suffered physical and psychological impairments as a result of the accident, aggravating pre-existing conditions.

The arbitrator ordered the insurer to pay for physiotherapy, psychological treatment, medical assessments, and housekeeping expenses.

The insurer's argument that the applicant was disentitled to benefits for failing to attend a DAC assessment was rejected due to defective notice.

The applicant was awarded her arbitration expenses.

The applicant sought interim income replacement benefits following a motor vehicle accident.

The insurer argued the applicant was not credible and was laid off due to a business downturn, not accident-related absences.

The arbitrator found the applicant provided prima facie evidence of an accident-related disability that precipitated his loss of work, relying on a contemporaneous email from his employer.

The arbitrator also applied the rule in Browne v. Dunn to disregard the insurer's collateral attack on the applicant's credibility, as the insurer chose not to cross-examine him.

Finding urgency from the date the claim was raised, the arbitrator ordered the insurer to pay interim benefits.

The appellant insurer appealed an order that dismissed its motion for summary judgment and set aside a settlement agreement with the respondent.

The insurer conceded there were deficiencies in the notice provided under the settlement regulation but argued they were immaterial.

The Court of Appeal held that the materiality of the deficiencies could not be determined on the motion record.

However, the court found the motion judge erred by setting aside the settlement instead of merely dismissing the summary judgment motion.

The appeal was allowed in part to substitute an order dismissing the motion for summary judgment.