Mirilyn R. Sharp

SIR Corp. appealed the dismissal of its application for insurance coverage for business losses and food spoilage incurred during the COVID-19 pandemic due to government-imposed in-person dining restrictions.

The appellant sought coverage under "Civil or Military Authority" and "Ingress/Egress" clauses of its "all-risk" property insurance policy with Aviva.

The Court of Appeal dismissed the appeal, finding that the policy required direct physical loss or damage for coverage, which the government orders did not cause.

It also held that "catastrophe" in the policy was limited to events similar to "conflagration" (large-scale physical destruction) and did not include the pandemic.

The court also denied leave to appeal the costs award, upholding the application judge's decision.

Following the dismissal of the applicants' insurance coverage application, the parties made written submissions on costs.

The respondent sought $100,000 based on a pre-hearing costs agreement, or alternatively $254,566.28 on a partial indemnity basis.

The applicants argued the agreement should not be enforced because the respondent's evolving position caused them to incur significant additional costs.

The court enforced the costs agreement, finding no breach or vitiating factors, and awarded the respondent $100,000 for the application plus $8,136 for the costs submissions.

The applicant restaurant chain sought a declaration of coverage under its commercial 'all risks' insurance policy for business interruption losses caused by government-mandated closures during the COVID-19 pandemic.

The applicant argued that coverage was triggered under the policy's civil authority and ingress/egress extensions.

The court dismissed the application, finding that the policy required 'direct physical loss or damage' to trigger coverage.

The court held that the COVID-19 virus and the resulting government orders did not cause direct physical loss or damage to the insured's property, and therefore the losses did not fall within the policy's coverage.

The appellant, a class member, sought an extension of time to opt out of a consolidated class action after commencing an individual action without knowledge of the class proceeding.

The motion judge denied the request.

The Court of Appeal for Ontario clarified and affirmed the test for extending the time to opt out: the class member must demonstrate excusable neglect for the delay and show that granting the extension will not result in prejudice to the class, the defendant, or the administration of justice.

The Court found the motion judge erred by not applying this test and by misinterpreting the appellant's evidence.

The appeal was allowed, and the appellant was granted an extension to opt out, as he demonstrated excusable neglect and no prejudice was shown.

This motion concerned an application by The Class Action Clinic, University of Windsor, Faculty of Law, to intervene as a friend of the court in an appeal brought by Donald Parker.

Parker's appeal challenged an unsuccessful motion for an extension of time to opt out of a class action against Her Majesty the Queen in the Right of Ontario, concerning medical care for inmates.

The Clinic sought to provide a framework for determining extensions of time to opt out of class actions.

The court granted the Clinic's motion to intervene, finding that the Clinic could make a useful contribution to the appeal's resolution without prejudicing the parties, given the unsettled legal considerations regarding opt-out extensions in class actions.

Donald Parker appealed a motion judge's refusal to extend his opt-out period from a class action and a related costs order.

Her Majesty the Queen in Right of Ontario moved to quash Parker's appeal, arguing the motion judge's order was interlocutory and thus appealable only to the Divisional Court.

The Court of Appeal dismissed Ontario's motion, holding that the motion judge's order was final because it effectively terminated Parker's individual civil action by denying his substantive right to opt out of the class proceeding.

The court emphasized the importance of opt-out rights as substantive rights.

The moving parties, who were inmates placed in administrative segregation after the opt-out deadline in a class action against Canada, brought a motion to opt out of the class action.

The motion became moot when the parties agreed to amend the class definition and provide a new opt-out period.

The moving parties sought costs for the unargued motion.

The court found that the motion was unnecessary because the moving parties were not class members to begin with, and ordered the costs of the motion to be in the cause of their external individual actions against Canada.

Donald Parker, a class member, appealed an order denying him an extension to opt out of a class proceeding.

He brought a motion seeking an extension of time to perfect his appeal and permission to include an affidavit from his counsel in the appeal book and compendium (ABC) regarding an unrecorded lower court hearing.

The Court of Appeal granted the extension of time to perfect the appeal and allowed the inclusion of the affidavit, finding it permissible under Rule 61.10(1)(i) of the Rules of Civil Procedure, while noting that the relevance of the affidavit would be determined by the appeal panel.

A case conference was convened at the request of a class member and a defendant to address concerns regarding the distribution of settlement funds in a class action.

The class member raised concerns about an apparent double payment to the representative plaintiff, which the Administrator confirmed was a clerical error that had been reversed.

The defendant raised concerns about a discrepancy in class counsel fees, which the court clarified was due to the inclusion of HST in the final approved amount.

The court was satisfied that the settlement funds had been distributed correctly and no further adjustments were required.

Following a settlement approval in a class action, the plaintiff failed to pay a $5,000 costs award to the defendant, Canderm Pharma Inc., for six months.

The plaintiff argued the costs were payable only after settlement funds were distributed or a companion action was dismissed.

The court rejected these arguments, finding the delay unreasonable and the plaintiff's positions untenable.

The court ordered the plaintiff to pay the outstanding $5,000 forthwith, plus an additional $5,000 in costs for the case conference required to enforce the original order.

The parties attended a case conference to settle the terms of the orders approving a class action settlement and distribution protocol.

The court approved the draft orders with minor modifications, including pluralizing references to the Canderm defendants and adjusting the notice period.

The court declined to award costs of the Ontario action to Canderm, noting the action was stayed due to the settlement with the other defendants.

The court also addressed concerns raised by a class member regarding the claims administrator's handling of her income loss claim, directing the administrator to be flexible and objective in assessing evidence.

The plaintiff brought a motion for approval of a proposed $250,000 settlement with the settling defendants in a class action concerning adverse reactions to a cosmetic injectable filler.

The court found the settlement amount modest but reasonable given the small class size and litigation risks, provided the maximum compensation for income loss was increased from $5,000 to $20,000.

Class counsel fees were approved with a $20,000 reduction.

The action against the non-settling defendant was permanently stayed in Ontario, and procedural protections were added to the bar order.

Costs of $5,000 were awarded against the plaintiff for late service of a factum.

The plaintiff brought a motion to finalize the terms of a certification order for settlement purposes and to set a timetable for a settlement approval hearing.

A non-settling defendant, Canderm Pharma Inc., objected to the form of the order, identifying several clerical errors.

The court agreed that the errors should be corrected before the order was issued, despite the plaintiff's concern about maintaining parallel language with a British Columbia order.

The court finalized the terms, set the timetable, and declined to award costs to any party.

In a class proceeding arising from a major propane facility explosion, the plaintiffs sought to amend their statement of claim and certify claims against additional defendants associated with the ownership and leasing of the facility property.

The court considered whether the proposed amended pleading satisfied the s. 5(1)(a) requirement of the Class Proceedings Act by disclosing a reasonable cause of action.

Claims in strict liability and nuisance against the property-owning defendants were struck because the pleadings failed to meet the legal prerequisites and improperly characterized the alleged nuisance.

Negligence claims under the Occupiers’ Liability Act were also dismissed because the alleged damages occurred off the premises and the statute only applies to persons entering the premises.

However, the court held that the plaintiffs had properly pleaded a viable common law negligence claim based on the defendants’ alleged rights of control and failure to intervene in unsafe operations.

Certification against the remaining defendants proceeded solely on the basis of the common law negligence cause of action.

In a certified class proceeding arising from explosions at a propane facility, class counsel moved for an order restraining an insurer and its counsel from communicating directly with class members during the court‑approved opt‑out period.

The insurer’s counsel had sent letters stating the insurer would opt insured class members out of the class action and pursue their claims through a subrogated action.

The court held the communications were misleading, interfered with the solicitor‑client relationship between class counsel and class members, and violated the Rules of Professional Conduct.

The court reaffirmed that insureds retain control of litigation until fully indemnified for both insured and uninsured losses.

An order was made prohibiting the insurer and its counsel from communicating with affected class members without court approval or consent of class counsel during the opt‑out period.

The plaintiffs sought certification of a proposed class action arising from explosions at a propane facility in Toronto that allegedly caused personal injury, property damage, and evacuation of nearby residents.

The court considered the certification requirements under s. 5 of the Class Proceedings Act, 1992.

It held that the pleadings against certain landlord defendants failed to disclose a viable cause of action because the allegations relying on agency, single‑group enterprise, and alter‑ego theories lacked material facts capable of piercing the corporate veil.

Those pleadings were struck with leave to amend and the certification motion against those defendants was adjourned.

The proceeding was otherwise certified as a class action against the remaining defendants, with common issues approved and representative plaintiffs appointed.

The appellant brought a proposed class action against Health Canada, alleging negligent regulation of temporomandibular joint (TMJ) implants.

The motion judge struck the claim under Rule 21.01(1)(b) on the basis that it disclosed no reasonable cause of action.

On appeal, the Court of Appeal affirmed the dismissal, holding that it was plain and obvious that Health Canada did not owe a private law duty of care to individual consumers of medical devices.

The statutory scheme did not create a proximate relationship, and the pleadings failed to allege specific representations or reliance that would establish proximity under the Anns/Cooper test.

The insured pickle manufacturer suffered substantial spoilage when a regional blackout interrupted the electricity supply to its refrigeration equipment.

The insurer denied coverage under an all-risks policy, relying on an exclusion for loss caused by 'mechanical or electrical breakdown or derangement'.

The motion judge granted summary judgment for the insured, finding the exclusion inapplicable.

The Court of Appeal dismissed the insurer's appeal, holding that 'breakdown' and 'derangement' refer to internal defects or problems within the machinery, not a failure to operate due to an external power outage.