Michael Gerhard

This class action motion sought approval of a proposed settlement and class counsel fees concerning denied travel insurance claims by TD Home and Auto Insurance Company during the early COVID-19 pandemic, specifically regarding denials based on the availability of non-monetary compensation (credits/vouchers).

The parties reached a settlement of $5.1 million, with $4.8 million available for class members.

The settlement provides $100 for cash-refunded claims and at least 40% of the value for non-cash-refunded claims, allowing class members to retain travel credits.

The court found the settlement fair, reasonable, and in the best interest of the class, noting the risks of litigation and the absence of objections.

Class counsel's request for fees, based on a 21.5% contingency rate (reduced to 17% for the class after defendant's contribution), was also approved as fair and reasonable, proportionate to the settlement size, and reflecting the work and risks undertaken.

The plaintiff brought a class action alleging that the defendant insurer wrongfully deprived insureds of trip cancellation benefits by offering non-monetary compensation such as credits or vouchers.

On consent, the court certified a single threshold common issue regarding the interpretation of the travel insurance policy and dismissed the claim against the parent bank.

The court found that certifying a single threshold common issue, with the possibility of further common issues later, was an efficient procedure akin to a Rule 21 motion.

The appellant (defendant at trial) appealed a judgment awarding damages for a respiratory injury allegedly caused by being sprayed with a fire extinguisher.

The appeal raised issues regarding the admission of participant expert evidence, the adequacy of the trial judge's reasons for not considering defence expert evidence on causation, and the quantum of non-pecuniary damages.

The Court of Appeal found the trial judge's reasons insufficient for failing to analyze the appellant's expert evidence on the diagnosis of Reactive Airways Disorder Syndrome (RADS) and for relying on an unqualified expert's incorrect summary of other specialists' views.

The appeal was allowed, and a new trial ordered.

The plaintiff was shopping at the defendant's store when an employee accidentally discharged a fire extinguisher in his face.

The defendant admitted liability but disputed causation and damages, arguing the plaintiff's subsequent severe respiratory issues were a natural progression of a pre-existing illness.

The court applied the 'but for' test and the thin skull doctrine, finding that the incident caused the plaintiff to develop Reactive Airways Dysfunction Syndrome (RADS).

The court awarded the plaintiff $225,000 in non-pecuniary damages, along with significant awards for past and future income loss, and subrogated claims.

The plaintiff brought a motion to exclude a defendant from her examination for discovery, citing intimidation and fear of tailored evidence.

The court dismissed the motion, affirming a litigant's inherent right to be present at discovery unless exceptional circumstances, such as a real and substantial probability of intimidation or evidence tailoring, are proven.

The court found the plaintiff's discomfort and anxiety insufficient for exclusion and noted the defendant's evidence could be impeached by prior statements.

Costs were awarded to the successful defendants on a partial indemnity basis.