Paul Tushinski

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.

This appeal concerned proposed class actions against auto insurers for improperly deducting HST from statutory accident benefits (SABs) and against the Financial Services Commission of Ontario (FSCO) for alleged regulatory failures.

The motion judge had dismissed claims against insurers due to the exclusive jurisdiction of the Licence Appeal Tribunal (LAT) under s. 280 of the Insurance Act, but allowed claims against FSCO to proceed.

The Court of Appeal upheld this decision, confirming the LAT's exclusive jurisdiction over SAB disputes and affirming the court's jurisdiction over tort claims against the regulator.

The court also refused leave to appeal the motion judge's costs order, finding it within his discretion.

The defendants, Toronto Hydro and the City of Toronto, sought leave to issue third-party claims against the plaintiffs (a building owner and two tenants) and various former owners and property managers for contribution and indemnity following a fire in a hydro vault.

The plaintiffs opposed the motions, arguing that covenants to insure in their leases shielded them from liability to each other, rendering the third-party claims legally untenable under the Supreme Court's decisions in T. Eaton Co. and Giffels.

The court granted leave in part, allowing claims against parties in capacities not shielded by the insurance covenants (e.g., former owners, property managers), but dismissed the motions regarding claims against the landlord and tenant in their capacities governed by the leases.

The court also rejected the argument that covenants to insure should be treated as exclusion clauses subject to public policy exceptions.

Following a jurisdiction motion where the defendant insurers successfully argued that the court lacked jurisdiction over the proposed class actions, the insurers sought costs of approximately $620,000.

The court found this request preposterous and excessive, fixing costs payable by the plaintiffs to the 13 non-settling insurers at $28,000 on a partial indemnity basis.

The costs payable by the government regulator to the plaintiffs were settled at $12,500.

The plaintiffs filed proposed class actions against 15 auto insurers and the provincial regulator, FSCO, alleging improper deduction of HST from statutory accident benefits.

The defendant insurers brought motions to dismiss the actions for lack of jurisdiction, arguing the Licence Appeal Tribunal (LAT) has exclusive jurisdiction over such disputes.

The court agreed, dismissing the actions against the insurers and refusing to approve two early settlements, as the claims fell squarely within the LAT's exclusive jurisdiction under s. 280 of the Insurance Act.

However, the court found it had jurisdiction to hear the claims against FSCO for regulatory negligence, as those allegations did not directly concern benefit entitlements or amounts.

The defendant Ryder Truck Rental Canada Ltd. brought a motion in writing to lift a stay of proceedings and dismiss the action in its entirety without costs.

The plaintiffs had resolved their claim with the co-defendant insurer and elected not to proceed against the remaining defendants.

The court found that a previous noting in default of the individual defendant while the stay was in place was invalid, but that noting in default was not required to dismiss the action.

The court lifted the stay for the sole purpose of dismissing the action without costs on consent of the participating parties.

The defendant Ryder Truck Rental requested an order lifting a previously imposed stay of proceedings and dismissing the action on consent.

The court noted that the defendant Minassian had been noted in default after the stay order was issued, and that a noting in default obtained during a stay should not be given effect.

The court directed that any request to lift the stay and dismiss the action must be made by way of a formal motion in writing on notice to all parties.

The plaintiffs sought court approval for a class action settlement and allocation plan concerning a Hepatitis A contamination recall of frozen fruit.

The court approved the $3,000,000 settlement, finding it fair, reasonable, and in the best interests of the class, considering the arm's length negotiations, lack of significant objections, and risks of continued litigation.

The plan allocated funds across four categories: purchasers, immunized members, bodily injury members, and family members/health insurers.

The defendant, Chubb Insurance Company of Canada, brought a motion to transfer the action from the Central East Region (Newmarket) to the Toronto Region, pursuant to Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiffs, Smartcentres Management Inc. and North Park Shopping Centres Limited, opposed the motion.

The court granted the transfer, finding that the events, subject matter, and damages were primarily located in Toronto, and that Toronto was "significantly better" in the interests of justice after a holistic application of the factors outlined in Rule 13.1.02(2)(b).

The plaintiffs brought a motion to certify a class action against the Royal Winnipeg Ballet and a former instructor/photographer, Bruce Monk.

The plaintiffs alleged that Monk took intimate photographs of students in private settings and disseminated them without consent, constituting sexual assault, breach of fiduciary duty, and invasion of privacy.

The court found that the pleadings disclosed causes of action, there was an identifiable class, and there were 23 common issues.

The court also found that a class proceeding was the preferable procedure and that the representative plaintiffs were suitable.

The certification motion was granted.

The applicants sought a determination of whether a lessee of a leased vehicle could access the lessor’s insurance coverage beyond the statutory $1 million cap under s. 267.12 of the Insurance Act following a motor vehicle accident.

They argued that a legislative gap existed between the 2006 amendments to the Insurance Act limiting lessor liability and the later approval of the OEF 110 endorsement restricting coverage for lessees, allowing lessees to access the lessor’s insurance as unnamed insureds during the interim.

The court rejected this argument, holding that s. 267.12 must be interpreted in light of the legislative purpose of protecting lessors and their insurers by capping exposure.

Interpreting the statute to permit lessees to access excess or umbrella policies would undermine the legislative scheme.

The court further held that the excess and umbrella policies at issue did not provide coverage to the lessee based on their wording and the fact that the lessor was not a named insured under the relevant policies.

The application was dismissed.

Following certification of a class proceeding arising from the collapse of a shopping mall, the court determined the appropriate allocation of costs for the certification motion.

Most defendants did not oppose certification and several entered into settlement agreements regarding costs.

The court distinguished between baseline costs that would have been incurred even if certification had proceeded on consent and additional costs caused by defendants who opposed certification.

The judge concluded that $140,000 represented additional costs attributable to opposition and allocated remaining unpaid costs primarily to the provincial government, whose extensive submissions challenged multiple certification criteria.

Costs were fixed at $15,000 against one defendant and $60,000 against the provincial government, with other amounts accounted for through settlements.

The plaintiffs brought a motion to certify a class action following the collapse of the Algo Centre Mall roof in Elliot Lake, which killed two people and injured dozens.

The proposed class included occupants, tenants, and employees of the mall.

The defendants included the mall owners, builders, engineers, and the Province of Ontario.

The Province opposed certification, arguing it owed no private law duty of care for negligent inspection.

The court found that the pleadings disclosed a valid cause of action for negligent inspection against the Province and that all five prerequisites for certification under s. 5(1) of the Class Proceedings Act, 1992 were met.

The action was certified as a class proceeding.

The plaintiff sought approximately $2.6 million in damages against a contractor and an acrylic sheet manufacturer arising from alleged defects in the design, manufacture, and installation of a skylight system for a horse riding arena.

The plaintiff alleged negligent design, negligent manufacture of acrylic sheets, negligent misrepresentation in product literature, and spoliation of evidence.

After a lengthy trial, the court found no negligence or breach of contract by the contractor and no negligence in the manufacture of the acrylic sheets by the manufacturer.

Although the manufacturer should have disclosed certain test results regarding light transmittance, the plaintiff failed to prove causation.

The court further held the plaintiff fundamentally breached the contract and was contributorily negligent by refusing to install an automatic controller and by failing to implement recommended ventilation and heating measures, and also failed to mitigate its losses.

At the commencement of a lengthy construction dispute trial, the defendants sought to set aside an earlier bifurcation order so that liability and damages could be tried together, while the plaintiff moved to strike the defendants’ jury notice.

The court exercised its inherent jurisdiction to manage the trial process and set aside the earlier order, finding that trying all issues together would avoid multiplicity of proceedings and that evidentiary overlap justified a single trial.

The court also held that the case involved exceptionally complex factual, technical, and legal issues, including numerous expert reports, extensive documentary evidence, multiple causes of action, crossclaims, and potential apportionment under a Pierringer agreement.

Given these complexities, the court concluded that justice would be better served by a judge-alone trial rather than a jury.

The jury notice was therefore struck and the matter ordered to proceed on all issues before a judge.