Robert Michael Ben

The Court of Appeal for Ontario dismissed an appeal by non-settling defendants challenging the approval of a Pierringer agreement in a multi-party motor vehicle accident case.

The court held that the agreement did not cause substantive prejudice to the non-settling defendants, as the Negligence Act places the risk of an insolvent or impecunious tortfeasor on the remaining tortfeasors, not the victim.

The court also declined to grant procedural orders in advance, leaving such matters to the trial judge.

The appellant, William Daniel Lewis, appealed a motion judge's decision dismissing a class action against Uber entities.

The core issue was whether the action, seeking a rebate of GST remitted to the government, was prohibited by the Excise Tax Act (ETA).

The Court of Appeal affirmed the motion judge's finding that section 312 of the ETA prohibits such actions, as the ETA provides a complete statutory framework for GST rebates, with exclusive jurisdiction vested in the Tax Court.

The court also agreed that section 224.1 of the ETA reinforces this statutory bar, extending protection from civil liability to tax collectors acting in compliance with the ETA.

The appeal was dismissed.

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.

The moving parties sought leave to appeal three orders of Morgan J. The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $35,500.

The plaintiff sought certification of a class action alleging that Uber improperly calculated Goods and Services Tax (GST) on pre-discounted Uber Eats orders, claiming violations of the Excise Tax Act (ETA), provincial consumer protection legislation, the Competition Act, breach of contract, and unjust enrichment.

The court dismissed the certification motion, primarily finding that the claim was barred by ss. 224.1 and 312 of the ETA.

The court characterized the action as an attempt to recover tax outside the comprehensive statutory scheme provided by the ETA, which includes a rebate mechanism.

Additionally, the court identified other deficiencies, including inadequate pleadings for certain causes of action, issues with class identifiability due to varying promotional language, and a lack of commonality among proposed issues, concluding that a class proceeding was not the preferable procedure.

The insurer requested a reconsideration of a decision finding that the claimant sustained a catastrophic impairment.

The insurer argued the adjudicator erred in law and fact by accepting a neuropsychological assessment where the Extended Glasgow Outcome Scale (GOS-E) was administered by an occupational therapist rather than the neuropsychologist.

The adjudicator dismissed the request, finding no error of law because the Schedule permits a neuropsychologist to be assisted by other regulated health professionals.

While acknowledging a factual error regarding whether the insurer's assessor administered the GOS-E, the adjudicator concluded this error would not have changed the result, as the claimant's expert evidence was more consistent with the medical record.

The plaintiff in a putative class action sought court approval for a third-party funding agreement.

The agreement aimed to indemnify the plaintiff for adverse costs in exchange for a share of any litigation proceeds, as the plaintiff was unsuccessful in obtaining financing from the Class Proceedings Fund.

The court reviewed the agreement against the requirements of the recently amended s. 33.1 of the Class Proceedings Act, 1992, which codifies the approval process for such agreements.

The court found the agreement fair and reasonable, ensuring plaintiff control over litigation, and confirmed the funder's financial capacity.

The defendants did not oppose the motion.

The motion was granted, and the third-party funding agreement was approved.

The applicant was involved in a motorcycle accident and sustained a traumatic brain injury.

He applied for a catastrophic impairment determination under Criterion 4 of the Statutory Accident Benefits Schedule, relying on the Extended Glasgow Outcome Scale (GOS-E).

The adjudicator found that the applicant met the threshold for a lower moderate disability, primarily due to his inability to return to work in his previous capacity, and thus qualified for catastrophic impairment status.

The adjudicator also awarded partial attendant care benefits and approved several treatment plans for occupational therapy, psychological services, and a laptop, while denying other claimed medical benefits and a claim for a special award.

The Plaintiff, Nordik Windows Inc., was successful in a certification motion and related motions.

This endorsement addresses the costs for these motions, which involved two rounds of hearings due to a recusal by the initial judge.

The court determined the appropriate costs, considering the re-usable work from the first hearing and the work for the second hearing, ultimately awarding the Plaintiff $1,000,000.00 in all-inclusive costs.

This case concerns a re-hearing of a certification motion for a class action against Aviva Insurance Company of Canada, Aviva General Insurance Company, and Aviva Canada Inc. regarding business interruption insurance claims arising from the COVID-19 pandemic.

The plaintiff, Nordik Windows Inc., sought to certify a class of businesses whose claims were denied or not submitted due to the defendants' alleged blanket denial policy.

The defendants brought cross-motions for summary judgment against Nordik and a declaration concerning the tolling of the limitation period.

The court certified the class action, dismissed the defendants' summary judgment and limitation tolling motions, and allowed the addition of three new representative plaintiffs (Cash and Carry Inc., Hangar9 Studios Inc., and Real Food for Real Kids Inc.).

The decision addresses the adequacy of the representative plaintiff, the identifiable class, and the common issues, particularly regarding notice requirements and the interpretation of insurance policy clauses in the context of pandemic-related business closures.

This endorsement concerns the costs award following a jury trial where the plaintiff, Sara Baker, successfully sued Blue Cross Life Insurance Company of Canada for wrongful termination of long-term disability benefits.

The jury found Ms. Baker totally disabled and awarded her retroactive benefits, aggravated damages, and punitive damages.

The court, exercising its discretion under s. 131 of the Courts of Justice Act, awarded Ms. Baker full indemnity costs, extending the rationale from 'duty to defend' cases to wrongful denial of long-term disability benefits, citing the unique character of such policies as a special circumstance.

The court fixed the costs at $1,083,953.50, including fees, HST, and disbursements, after considering factors under Rule 57.01 and making a discount for some duplication of legal work.

The Ontario Trial Lawyers Association (OTLA) brought a motion to intervene in an appeal concerning the enforceability of a settlement agreement where the plaintiff died before executing the release and structured settlement documents.

The respondent Estate supported the intervention, while the appellant insurer opposed it.

The Divisional Court granted the motion, finding that the appeal raised broader public law issues and policy concerns regarding personal injury settlements and the Insurance Act, and that OTLA would provide a distinct and useful perspective without causing significant prejudice to the parties.

This endorsement addresses two motions for leave to appeal before the Divisional Court.

The Plaintiffs' motion for leave to appeal a "set aside" order was dismissed with costs awarded to the Defendants.

Concurrently, the Defendants' motion for leave to appeal earlier certification decisions was dismissed without costs, having become moot.

The appellant was struck by a car while riding his bicycle and applied for a determination of catastrophic impairment based on a Glasgow Coma Scale score of 8.

The Licence Appeal Tribunal denied the application.

On appeal, the Divisional Court found that the Tribunal breached procedural fairness by refusing to admit a video of the accident, permitting the respondent's expert to testify beyond the scope of his report, and refusing to allow the appellant to call reply evidence.

The appeal was granted and the matter remitted to the Tribunal for a new hearing before a different adjudicator.

The plaintiff brought a motion to add three additional representative plaintiffs during a certification hearing for a class action regarding COVID-19 business interruption insurance claims.

The court found that the original plaintiff, Nordik Windows Inc., had an arguable cause of action and was a suitable representative plaintiff.

The court also found that the three proposed additional plaintiffs—Hangar9 Studios Inc., Cash and Carry Inc., and Real Food for Real Kids Inc.—had viable causes of action and met the requirements under s. 5(1)(e) of the Class Proceedings Act.

The class action was fully certified with all four as representative plaintiffs.

The plaintiffs brought motions to certify three proposed class actions against Aviva Insurance for the blanket denial of coverage for COVID-19-related business loss claims.

The claims focused on 'restricted access' and 'negative publicity' coverage provisions in Aviva's standard-form policies.

The court found that the requirements for certification under the Class Proceedings Act were met, noting the commonality of the standard-form policies and the identical denial letters.

The two Lerners Actions were certified, and the Nordik Action was conditionally certified pending a motion regarding the representative plaintiff.

This application sought judicial approval for a $1.6 million settlement of a minor's accident benefits claim following a traumatic brain injury.

The court approved the settlement quantum but expressed concerns regarding the proposed structured settlement's adequacy for the minor's future needs, requesting a comprehensive treatment plan.

Additionally, the court reduced the applicant's counsel's requested legal fees from $240,000 to $150,000 plus HST, emphasizing the mandatory disclosure of dockets, disbursements, and retainer agreements in Rule 7.08 applications, particularly when the retainer is not a contingency agreement.

Two Ontario residents injured in separate accidents outside Ontario involving an all-terrain vehicle (ATV) and a dirt bike sought statutory accident benefits (SABs) under their Ontario automobile insurance policies.

Both insurers denied coverage, arguing that the definition of "automobile" under Ontario law should be determined by the law of the jurisdiction where the accidents occurred (lex loci delicti).

The Court of Appeal held that Ontario law applies to the interpretation of Ontario contracts and statutes, and that the definition of "automobile" in the Insurance Act and Off-Road Vehicles Act applies uniformly regardless of where the accident occurs.

Both vehicles qualified as automobiles under the extended definition because they would have required insurance if operated in Ontario under the Off-Road Vehicles Act.

The court allowed the appeal of the insured and dismissed the appeal of the insurer.

The applicant requested a reconsideration of a decision finding he did not suffer a catastrophic impairment under the Glasgow Coma Scale following a motor vehicle accident.

The applicant argued the Tribunal erred by excluding video footage of a paramedic at the scene and by allowing the respondent's expert neurologist to give opinion evidence outside his report without permitting the applicant to recall his own expert.

The adjudicator dismissed the request, finding the video footage had limited probative value and would not have changed the result given the conflicting medical reports.

The adjudicator also found no error in allowing the respondent's expert to comment on inconsistencies in the reports, noting the applicant failed to demonstrate the evidence was false or misleading.

The applicant was injured in a motor vehicle accident and claimed attendant care benefits for services provided by his spouse.

The spouse was a certified Personal Support Worker (PSW) who took a leave of absence from her job to care for the applicant.

The insurer argued that the spouse was not providing services in the course of her employment and therefore had to demonstrate an economic loss.

The arbitrator held that the spouse was providing attendant care services in the course of the employment, occupation, or profession in which she would ordinarily have been engaged but for the accident, pursuant to s. 3(7)(e)(iii)(A) of the Schedule.

As a result, economic loss did not need to be demonstrated.