Sarah Armstrong

The plaintiffs, representing a class of small to medium-sized businesses, sought coverage under their business interruption insurance policies for losses sustained due to the COVID-19 pandemic and related civil authority orders.

The court held a common issues trial to determine whether the presence of the SARS-CoV-2 virus or government lockdown orders could cause 'physical loss or damage to property' within the meaning of the policies.

The court concluded that the virus does not physically alter or damage inanimate surfaces, and that the loss of use of the premises due to government orders does not constitute physical loss or damage.

Consequently, the court answered the certified common issues in the negative, finding no coverage under the business interruption provisions.

The court reconsidered a previous costs award of $112,500 made against the plaintiffs following the dismissal of their refusals and interlocutory injunction motions in a proposed class action regarding a data breach.

The plaintiffs argued the defendants' costs claim reflected over-lawyering and sought costs in the cause.

The court rejected the plaintiffs' submissions, finding their motions were unnecessary, overreaching, and deplorably prosecuted.

The court confirmed the original partial indemnity costs award of $112,500 and awarded an additional $12,500 for the costs submissions, for a total of $125,000 payable to the defendants.

Following the dismissal of the defendant insurers' motion to temporarily stay 17 individual actions pending the determination of certification in a class proceeding, the successful plaintiffs sought costs on a partial indemnity scale.

The plaintiffs requested $86,589, which the court found excessive for a relatively simple stay motion.

Applying the factors in Rule 57.01(1) and considering proportionality, the court fixed costs at $35,000 all-inclusive, payable by the defendant insurers.

The defendant insurers brought a motion to temporarily stay 17 individual actions for COVID-19 business interruption losses pending the certification of a related class action.

The court dismissed the motion, finding that while there was overlap in issues and facts, staying the individual actions would cause significant injustice and prejudice to the plaintiffs, who had legitimate reasons for pursuing their claims individually and expeditiously.

The plaintiffs in a proposed class action regarding a data breach sought court approval of a settlement with the defendant GitHub.

The court declined to approve the settlement as proposed, noting that it could not make a binding ruling on its own jurisdiction based on the consent of the parties, and that the substantive merits of the settlement (essentially a discontinuance) did not support approval at this stage.

At the parties' request, the motion was adjourned sine die.

The representative plaintiff brought a motion for approval of a $5,000,000 settlement in a class proceeding against a Children's Aid Society regarding a privacy breach where confidential client information was leaked online.

The court found the settlement fair, reasonable, and in the best interests of the class.

The court also approved class counsel's contingency fee of approximately $1.6 million plus disbursements, applying the Smith Estate factors, and approved a $5,000 honorarium for the representative plaintiff to be paid from counsel's fees.

The plaintiffs in a proposed class action brought unsuccessful motions for an injunction and for refusals.

The Capital One defendants sought costs of $135,000 on a substantial indemnity basis or $112,500 on a partial indemnity basis.

The plaintiffs argued they should be awarded costs despite losing, claiming they achieved their objective.

The court rejected the plaintiffs' arguments, finding their motions were ill-advised and meritless.

Costs were awarded to the Capital One defendants in the amount of $112,500 on a partial indemnity basis.

In a proposed class action regarding a data breach, the plaintiffs brought a motion for an injunction to enjoin or supervise communications from the defendants to putative class members.

The defendants intended to send a notice to 51,000 affected individuals offering free credit monitoring.

The court dismissed the motion, finding no reason to intervene as the proposed notice did not affect the integrity of the class proceedings or compromise the putative class members' rights.

The plaintiffs in a proposed class action regarding a data breach brought motions to compel answers to questions refused on cross-examinations of two affiants and an omnibus motion to strike out various affidavits, factum paragraphs, and a sealing motion.

The court dismissed the refusals motions, finding the questions asked were beyond the narrow scope of the underlying motions (an injunction motion and a sealing motion) and were properly refused.

The court also dismissed the omnibus motion, finding no reason to strike the evidence or alter the timetable for the upcoming jurisdiction and certification motions.

The plaintiffs sought approval of a $1 million settlement in a privacy class action against a technology company regarding the collection of cell phone data.

Because individual class members could not be identified, the settlement provided no direct compensation to the class, instead directing funds to a cy-près recipient (the Law Foundation) after payment of class counsel fees.

The court approved the settlement as the best possible outcome given the unmanageability of the class, but reduced class counsel's requested fees from $333,333 to $300,000 to reflect the lack of direct recovery for class members.

The plaintiff brought a motion to certify a class action against Equifax arising from a massive data breach where hackers accessed the personal information of Canadian consumers.

Equifax opposed certification of several claims, arguing that it was plain and obvious they would fail because Equifax was a victim of the hack, not the perpetrator.

The court rejected Equifax's objections, finding that the law on intrusion upon seclusion, breach of provincial privacy statutes, breach of contract, and consumer protection was not settled in the context of a database defendant allegedly recklessly enabling a hacker attack.

The court certified the proceeding as a class action.

The plaintiffs brought a motion on consent to certify a class action against the defendant technology company for settlement purposes.

The action alleges that the defendant intentionally invaded the privacy of Android phone users in Canada by accessing and collecting their location history without consent, constituting an intrusion upon seclusion.

The court found that the requirements under section 5 of the Class Proceedings Act, 1992 were met, noting the identifiable class, common issues, and adequacy of the representative plaintiffs.

The court certified the action for settlement purposes and approved the notice of settlement hearing.

The plaintiffs sought to certify a class action against the manufacturers of Cook IVC filters, alleging negligent design and failure to warn of risks associated with the medical devices.

The court dismissed the certification motion.

While the plaintiffs satisfied the identifiable class and representative plaintiff criteria, and pleaded a valid cause of action for failure to warn, they failed to plead a valid cause of action for design negligence.

Crucially, the court found no 'some basis in fact' for the existence of any common issues regarding either design defect or duty to warn, as the evidence did not identify a specific design defect or inadequacy in the warnings provided to physicians.

Consequently, the preferable procedure criterion was also not met.

The plaintiff moved to certify a class action against a children's aid society and other defendants following a privacy breach where a confidential document containing personal information of 284 individuals was accessed and posted online.

The defendants consented to or did not oppose certification.

The court found that the pleadings disclosed a cause of action, including the tort of intrusion upon seclusion, and that all criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were satisfied.

The motion for certification was granted.

The representative plaintiff in a securities class action sought court approval of an $11 million settlement agreement, a plan of distribution, and class counsel fees.

The action alleged that the defendants misrepresented the development costs of a mining project.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting the significant litigation risks, including proving liability and overcoming statutory liability caps under the Securities Act.

The court also approved the plan of distribution, the appointment of the claims administrator, and class counsel's fee request of $2.75 million (25% of the settlement) plus disbursements, finding them fair and reasonable given the results achieved and risks assumed.