Court File and Parties

Date: 20220426 Superior Court of Justice - Ontario

Re: Nordik Windows Inc., Plaintiff – AND – Aviva Insurance Company of Canada, Aviva General Insurance Company, and Aviva Canada Inc., Defendants

Before: E.M. Morgan, J.

Counsel: Crawford G. Smith, Stephen M. Birman, and Peter W. Kryworuk, for the Plaintiff Alan L. W. D'Silva and Daniel S. Murdoch, for the Defendants

Heard: April 26, 2022

Case Conference

[1] Counsel met with me today to discuss scheduling a re-hearing of the certification motion in accordance with Justice Belobaba’s Order of December 20, 2021 (as confirmed by Divisional Court in its endorsement of March 11, 2022).

[2] Counsel wrote to me in advance of the case conference indicating that they wished to schedule a series of motions at the same time. In addition to the certification motion, these include: a) Nordik’s motion to add representative plaintiffs; b) Aviva’s summary judgment motion against the representative plaintiff; and c) Aviva’s limitations motion for declaratory relief re tolling of the limitation period.

[3] As I explained to counsel at the case conference, in his Order of December 20th Justice Belobaba did not end his role as case management judge in this matter. His continuing role can be addressed by him at some point down the road.

[4] What Justice Belobaba did order was a re-hearing of the certification motion. In paragraph 9 of his Order he limited its ambit to the certification of the Nordik action, and specifically stated that it did not apply to what he called the two Lerners Actions. His Order is silent with respect to the other motions that counsel are proposing to argue together with the Nordik certification motion.

[5] Counsel for the Defendants are of the view that the two summary judgment motions that they propose bringing – one dealing with the representative plaintiff and the other with tolling and the interpretation of section 28 of the Class Proceedings Act – should really be heard prior to the certification motion, but for scheduling convenience they have agreed with Plaintiff’s counsel that they be heard at the same time as certification. Counsel for the Plaintiff are of the view that the two summary judgment motions are logically best heard subsequent to certification, but, again for scheduling purposes, have agreed with Defendants’ counsel that they be heard together with certification.

[6] Counsel for the Plaintiff are also of the view that whenever the Defendants bring their motion challenging the representative plaintiff, the Plaintiff must have an opportunity to simultaneously bring its motion to add new representative plaintiffs. This latter motion was heard by Justice Belobaba together with certification last year, but it appears to have been vacated along with certification itself in his Order of December 20, 2021.

[7] I recognize and appreciate that counsel have worked together to reach an agreement on hearing these matters together. Although Justice Belobaba’s Order does not address anything other than a re-hearing of the certification motion, this kind of coordination among counsel is to be encouraged. In any case, given the substantial overlap in the issues in these motions, judicial economy is likely served by hearing them together. Counsel agree that this will add no more than one day to the time already needed to re-argue certification.

[8] Accordingly, I will exercise my discretion to hear over a 3-day period the package of motions proposed here – the re-argument of the Nordik certification motion, the two sides’ reciprocal motions regarding the representative plaintiff(s), and the motion about tolling the limitation period. These 4 motions will be heard by me on January 30 – February 1, 2023.

Morgan, J. Date: April 26, 2022