Nicole J. Kelly

The appellants sought certification of a proposed class action on behalf of approximately 15,000 Canadian major junior hockey players from 1975 to the present, alleging systemic abuse including physical and sexual assaults, bullying, harassment, and hazing.

The class action named 78 defendants across four major junior hockey leagues and sought to hold the leagues and teams liable for systemic negligence in failing to adopt and enforce effective abuse-prevention policies.

The motion judge denied certification, finding the action unmanageable due to its unprecedented scope and complexity, and that no viable litigation plan had been presented.

The appellants appealed on three grounds: that they had disclosed a viable cause of action, that common issues existed, and that the class action was the preferable procedure.

The Court of Appeal dismissed the appeal, finding that while the appellants had viable claims and the motion judge applied an overly stringent test to the common issues requirement, the action was unmanageable and therefore not the preferable procedure.

The court emphasized that the proposed class action was far broader and more complex than previous systemic negligence class actions, involving 78 defendants across 13 jurisdictions, events spanning 50 years, and complex conflicts-of-law issues.

The appellants' attempt to fundamentally alter their case on appeal by dropping 74 defendants was rejected as impermissible.

The decision concerns the certification and approval of a partial settlement in a class action regarding business interruption insurance for dentists, specifically Aviva’s “Triple Guard” policies marketed by CDSPI.

The court certified the class action for settlement purposes as against CDSPI and approved the settlement, finding that all statutory criteria were met and that the settlement was fair and reasonable.

The court also dismissed Aviva’s motion for a stay, holding that disclosure of the settlement was timely and that Aviva’s rights were not prejudiced by the settlement or its timing.

This endorsement addresses a scheduling dispute in a class action involving dentists who purchased insurance policies brokered by CDSPI Advisory Services Inc. and issued by Aviva companies.

The plaintiffs sought to adjourn upcoming motions for settlement approval and a stay of proceedings, pending an anticipated Court of Appeal decision in Thrive Capital Management Ltd. et al v. Noble 1324 Queen Inc. et al., which may reconsider the principles in Handley Estate v. DTE Industries Limited regarding partial settlements.

The court declined to adjourn, emphasizing the need for timely resolution and noting that new procedural rules (Rule 49.14) would be in force for the scheduled hearing.

This appeal concerned a motion judge's order regarding a class action.

The core issues were whether a discontinued cause of action and defendants could be added to an existing class action (the Martin action) and whether that action would then be governed by the old Class Proceedings Act, 1992, or the amended Act.

The motion judge had ordered the "recast" Martin action to proceed under the amended Act and denied leave to add a party (MicroPort Orthopedics Inc.) based on limitations.

The Court of Appeal found that the motion judge erred in ordering the Martin action to be governed by the amended Act, as Section 39 of the amended Act clearly dictates that actions commenced before October 1, 2020, remain under the old Act.

The court also found an error in dismissing the motion to add MicroPort Orthopedics Inc. based on the Limitations Act, stating that limitation periods are typically individual issues in class actions.

The appeal and cross-appeal were allowed in part, clarifying that the Martin action continues under the old Act, and a re-filed Rowland action (including MicroPort Orthopedics Inc.) would proceed under the amended Act.

The Plaintiffs, Anson Advisors Inc. and Moez Kassam, brought a motion for default judgment against Andrew Rudensky for defamation, seeking $500,000 in general damages and a permanent injunction.

Rudensky, who had been noted in default and had largely ignored the proceedings, appeared at the last minute to request an adjournment, which was denied.

The court found that the facts pleaded in the Amended Claim, deemed admitted by Rudensky's default, established the tort of defamation.

Considering the extensive and malicious nature of the online publications, the plaintiffs' professional standing, and the defendant's persistent and evasive conduct, the court awarded $450,000 in general damages and granted a permanent injunction to prevent further defamatory publications.

Costs were also awarded to the plaintiffs.

The Ontario Superior Court of Justice, Commercial List, addressed two issues in a case conference: a proposed motion by the defendants to amend their Amended Statement of Defence and Counterclaim, and a proposed anti-SLAPP motion.

The court granted leave to amend the pleading by consent.

However, the court declined to schedule the anti-SLAPP motion, finding it untimely given the action was nearly three years old and significant litigation steps had already occurred.

The court emphasized that anti-SLAPP motions are screening devices meant for early stages, not surrogates for summary judgment or trial, and that the evidence relied upon for timeliness was available much earlier.

The parties were directed to agree on a case management timetable to prepare for trial.