Roberto Michel Giuseppe Durante

In a class action arising from a COVID-19 outbreak at a long-term care home, the appellants challenged certification of causation and punitive, exemplary or aggravated damages as common issues, and sought leave to appeal the certification costs award.

The Court of Appeal held that the motion judge properly found some basis in fact for a workable methodology for proving causation on a class-wide basis through a risk ratio approach supported by available data and expert evidence.

The court also upheld certification of punitive, exemplary or aggravated damages, rejecting the argument that such relief could not be certified absent common compensatory damages, noting that sequencing could address any quantification concerns.

Leave to appeal costs was denied because no strong grounds were shown for appellate intervention in the discretionary costs ruling.

The plaintiffs sought certification of a class action arising from a COVID-19 outbreak at Roberta Place Long Term Care Centre in Barrie, Ontario, from January 8 to February 18, 2021.

During the outbreak, 129 residents tested positive for COVID-19, resulting in 73 resident deaths (57% of the resident population).

The plaintiffs alleged systemic gross negligence by the defendants in failing to properly plan for and respond to the pandemic and implement adequate infection prevention and control (IPAC) measures.

The court certified the action as a class proceeding with three classes: residents who tested positive, estates of those who died from COVID-19, and eligible family members.

The court found that the plaintiffs met all five certification requirements under the Class Proceedings Act, 1992, including establishing common issues regarding duty of care, standard of care, breach, causation, and punitive damages.

The court rejected certification of aggregate damages as a common issue due to lack of evidence of a workable methodology.

The moving party defendant brought a motion for leave to appeal a prior decision.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party plaintiffs.

The applicant was injured in a motor vehicle accident and sought various medical and rehabilitation benefits from the respondent insurer under the Statutory Accident Benefits Schedule.

The respondent denied several treatment plans, leading the applicant to apply to the Licence Appeal Tribunal.

The adjudicator found that the occupational therapy, psychological, and one chiropractic treatment plan were partially or fully reasonable and necessary, subject to the applicant's $50,000 funding limit.

The optometric treatment plan and a second chiropractic treatment plan were deemed not reasonable and necessary.

The adjudicator also held that the applicant was entitled to interest on incurred expenses but declined to deem any expenses incurred due to unreasonable delay.

The applicant was injured in a motor vehicle accident and sought medical and rehabilitation benefits from the respondent insurer under the Statutory Accident Benefits Schedule.

The respondent denied several treatment plans, leading the applicant to apply to the Licence Appeal Tribunal.

The adjudicator found that the occupational therapy, psychological, and one chiropractic treatment plan were partially or fully reasonable and necessary, subject to the applicant's $50,000 funding limit.

The optometric and second chiropractic treatment plans were denied.

The adjudicator also held that previously approved but unconsumed benefits count against the funding limit unless explicitly withdrawn by the applicant.

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 was catastrophically impaired in a motor vehicle accident and sought attendant care benefits of $6,000 per month for around-the-clock supervisory care due to severe psychiatric impairments.

The Tribunal found that the Applicant did require around-the-clock supervisory care.

However, because her care was provided by non-professional family members, the Tribunal had to determine whether the February 1, 2014 amendment to the Statutory Accident Benefits Schedule applied to limit her benefits to the economic loss sustained by the providers, given her accident occurred prior to the amendment.

Following appellate authority, the Tribunal held that the amendment applied immediately and the Applicant had no vested right to the pre-amendment calculation.

Consequently, her entitlement was limited to her mother's proven economic loss of $839.29 per month.

As the insurer had been paying a higher rate, no arrears or interest were owed.

The applicant sought reconsideration of a Licence Appeal Tribunal decision denying his claim for accident benefits at the Michigan Personal Injury Protection level.

On reconsideration, the applicant raised a new argument that he should receive benefits under his spouse's policy with a different insurer, effectively disputing priority.

The Executive Chair dismissed the request, holding that a reconsideration is not an avenue for advancing new arguments that could have been made earlier, and that the time limit to dispute priority between insurers had expired.

The defendant brought a motion seeking to transfer the venue of a personal injury action from Barrie to Sudbury following a motorcycle accident that occurred in Sudbury.

The moving party argued that most lay witnesses and the plaintiff resided in the Sudbury area, while the plaintiff resisted the transfer citing potential delay, expert witnesses located in Toronto, and counsel’s office in Barrie.

Applying Rule 13.1.02(2)(b) of the Rules of Civil Procedure and the applicable Practice Direction, the court conducted a holistic assessment of factors including location of events, witnesses, convenience, costs, and availability of court resources.

While several factors favoured Sudbury, the court held that the moving party failed to demonstrate that Sudbury was “significantly better” than the plaintiff’s chosen venue.

The court emphasized the plaintiff’s right under the Rules to select the trial venue and declined to interfere with that choice.

The plaintiffs brought a medical malpractice action alleging that a surgeon breached the standard of care by recommending and performing revisional bariatric surgery following the failure of an earlier gastric partitioning procedure.

Liability was the sole issue at trial, as causation and damages were agreed upon subject to that determination.

The court considered extensive expert evidence concerning whether the patient was an appropriate candidate for revisionary bariatric surgery, including the relevance of the 1991 NIH bariatric surgery guidelines and the assessment of obesity‑related co‑morbidities.

The court held that candidacy for revisionary bariatric surgery involves the exercise of clinical judgment and that strict adherence to the NIH guidelines is not determinative, particularly where a prior bariatric procedure has mechanically failed.

The surgeon reasonably relied on the patient’s history, weight regain, gastroscopy findings confirming failure of the prior surgery, and a dietician’s assessment in determining candidacy.

The court concluded that the surgeon met the applicable standard of care.

The Crown sought leave to appeal an interlocutory order that required it to continue funding Intensive Behavioural Intervention (IBI) therapy for a six-year-old autistic child, despite the program's maximum age limit of six.

The motion judge had granted the mandatory order based on the RJR-MacDonald test, finding that the child would suffer irreparable harm without continued treatment and that the balance of convenience favoured the child.

The Divisional Court dismissed the motion for leave to appeal, finding no error in principle in the motion judge's exercise of discretion and rejecting the Crown's argument that the order amounted to a suspension of the legislation.