Lucy Gabriel Jackson

On January 8, 2020, Ukraine International Airlines flight PS752 was shot down by Iranian air defence missiles shortly after takeoff from Tehran, killing all 176 persons aboard.

The trial judge found that UIA breached the standard of care by failing to conduct a proper security risk assessment in accordance with ICAO 10084 (Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zones).

Specifically, UIA failed to access necessary and available information, failed to conduct a hazard identification and safety assessment, and failed to communicate with the flight commander before departure.

As a result, UIA's liability under the Montreal Convention was unlimited rather than capped at approximately $235,000 per passenger.

The appellate court dismissed UIA's appeal, finding no palpable and overriding error in the trial judge's findings of fact or mixed fact and law.

In a certified class proceeding arising from alleged COVID-19 business interruption coverage denials, the moving parties sought production of internal insurer documents relevant to common issues alleging breach of the duty of good faith and punitive damages.

The court held that the bad faith allegations had sufficient evidentiary foundation, particularly given the certification findings and evidence of an apparent blanket denial process, to move the request beyond a fishing expedition.

Internal materials concerning the insurer's corporate-level denial decision, adjuster communications, and reinsurer communications about a later pandemic exclusion were found relevant to contemporaneous decision-making and after-the-fact policy interpretation.

Production was ordered for categories (c), (d), and (e), but not for comparator materials concerning different insurance programs in category (f).

This decision concerns a motion under Rule 7 for court approval of a proposed settlement in a wrongful death action involving minor plaintiffs.

The case arose from a fatal pedestrian motor vehicle accident in which the deceased, Nadia Mozumder, was struck and killed at age 17.

The court considered whether the settlement and legal fees were fair and reasonable, and whether the requirements of Rule 7.08 were met.

The court approved the settlement, finding it within the range of reasonable values for similar cases, and commended counsel for their thorough preparation.

The plaintiffs brought actions against Ukraine International Airlines (UIA) under the Montreal Convention following the shoot-down of Flight PS752 by Iranian military surface-to-air missiles shortly after takeoff from Tehran.

UIA admitted the shoot-down was an 'accident' under the Convention, making it strictly liable, but sought to limit its liability by proving it was not negligent in allowing the flight to depart.

The Superior Court of Justice found that UIA failed to meet the standard of care for a reasonable airline operating in or near a conflict zone, as it did not conduct a proper security threat risk assessment or any safety risk assessment, and failed to gather available intelligence or brief the flight commander.

The court held that UIA failed to prove its negligence did not cause the passengers' deaths or that the harm was too remote, resulting in unlimited liability for the airline.

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 plaintiff sought certification of a class action alleging that Uber improperly calculated Goods and Services Tax (GST) on pre-discounted Uber Eats orders, claiming violations of the Excise Tax Act (ETA), provincial consumer protection legislation, the Competition Act, breach of contract, and unjust enrichment.

The court dismissed the certification motion, primarily finding that the claim was barred by ss. 224.1 and 312 of the ETA.

The court characterized the action as an attempt to recover tax outside the comprehensive statutory scheme provided by the ETA, which includes a rebate mechanism.

Additionally, the court identified other deficiencies, including inadequate pleadings for certain causes of action, issues with class identifiability due to varying promotional language, and a lack of commonality among proposed issues, concluding that a class proceeding was not the preferable procedure.

The defendants, Uber Canada Inc. et al., brought a motion for a protective order to safeguard commercially sensitive information related to class size and promotional data, which they were compelled to disclose under the Class Proceedings Act, 1992, in a putative class action.

The plaintiff did not oppose the motion.

Applying the three-part test from Sherman Estate v. Donovan, the court found a strong public interest in protecting such information, that no reasonable alternatives existed, and that the benefits of the order outweighed any negative effects on the open court principle.

The motion was granted, and the protective order was issued.

The plaintiff in a putative class action sought court approval for a third-party funding agreement.

The agreement aimed to indemnify the plaintiff for adverse costs in exchange for a share of any litigation proceeds, as the plaintiff was unsuccessful in obtaining financing from the Class Proceedings Fund.

The court reviewed the agreement against the requirements of the recently amended s. 33.1 of the Class Proceedings Act, 1992, which codifies the approval process for such agreements.

The court found the agreement fair and reasonable, ensuring plaintiff control over litigation, and confirmed the funder's financial capacity.

The defendants did not oppose the motion.

The motion was granted, and the third-party funding agreement was approved.

This endorsement concerns the costs award following a jury trial where the plaintiff, Sara Baker, successfully sued Blue Cross Life Insurance Company of Canada for wrongful termination of long-term disability benefits.

The jury found Ms. Baker totally disabled and awarded her retroactive benefits, aggravated damages, and punitive damages.

The court, exercising its discretion under s. 131 of the Courts of Justice Act, awarded Ms. Baker full indemnity costs, extending the rationale from 'duty to defend' cases to wrongful denial of long-term disability benefits, citing the unique character of such policies as a special circumstance.

The court fixed the costs at $1,083,953.50, including fees, HST, and disbursements, after considering factors under Rule 57.01 and making a discount for some duplication of legal work.

The plaintiff moved to certify a class action against the estate of an orthodontist for surreptitiously video recording patients and sought approval of a settlement.

The court granted certification for settlement purposes and approved the settlement, finding it fair, reasonable, and in the best interests of the class, given the limited assets of the estate and the challenges of individual proof of damages.

The settlement provided $425,000, including $350,000 for class members, an administration fund, and partial indemnity costs.

The plaintiffs, international students, brought a class action against Niagara College alleging misrepresentations regarding the eligibility of its General Arts and Science Program for a three-year Post-Graduation Work Permit.

The parties reached a $3 million settlement.

The court certified the action for settlement purposes, approved the settlement as fair and reasonable, approved class counsel fees of $950,750, and awarded a $10,000 honorarium to each representative plaintiff.