Shanti Barclay

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 plaintiff brought a motion for a status hearing under Rule 48.14(5) of the Rules of Civil Procedure to prevent the dismissal of his action for delay.

The action arose from a residential fire and involved a claim against his insurer.

The court found that the plaintiff provided an acceptable explanation for the delay, as the parties had been engaged in the appraisal process under the Insurance Act and the defendants had not objected to the delay.

The court also found no non-compensable prejudice to the defendants.

The action was allowed to continue, and a timetable was set.

The plaintiff appealed a Master's order requiring her psychological expert to produce his handwritten notes, questionnaires, and answers from his assessment of the plaintiff.

The expert had refused to produce the raw data, claiming it was proprietary.

The Master ordered production on an undertakings and refusals motion without notice to the expert.

The Superior Court allowed the appeal, finding the Master erred in law by ordering relief against a non-party without giving him an opportunity to be heard, which violated the principle of audi alteram partem.

The proper procedure was a motion for production from a non-party under Rule 30.10.

The court varied the order to require production only of documents the expert did not object to producing, leaving the defendants to bring a proper Rule 30.10 motion if they wished to pursue the disputed records.

The plaintiff brought a motion to withdraw admissions made by her former counsel at a status hearing, which had limited her damages claim to avoid the action being dismissed for delay.

The defendants brought cross-motions to hold the plaintiff to those admissions and strike portions of the statement of claim exceeding them.

The court dismissed the plaintiff's motion and granted the defendants' cross-motions, holding that a client is bound by the representations and admissions made by their counsel in court under the doctrine of ostensible authority.

Following a successful motion compelling the plaintiff to attend defence orthopaedic and psychiatric examinations, the court determined the appropriate costs award.

The defendant sought partial indemnity costs and disbursements, while the plaintiffs argued no costs or costs in the cause due to alleged procedural unfairness and conflicting authorities regarding leave requirements.

Applying the discretionary framework under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that the defendant was the successful party and entitled to costs.

The court found the requested legal fees reasonable but declined to award a disbursement related to a cancelled defence medical appointment.

Costs were fixed at $5,000 inclusive of taxes and disbursements, payable within 30 days.

The defendant insurer brought a motion seeking an order compelling the plaintiff to attend orthopaedic and psychiatric defence medical examinations under Rule 33 of the Rules of Civil Procedure and s. 105 of the Courts of Justice Act.

The plaintiffs argued that the defendant required leave under Rule 48.04(1) because it had agreed to a fixed trial date at trial scheduling court.

The court held that agreeing to a fixed trial date does not constitute consent to placing an action on a trial list within the meaning of Rule 48.04(1), and therefore leave was not required.

Applying principles of trial fairness and the need for a level evidentiary playing field, the court ordered the plaintiff to attend the requested examinations.

At a status hearing under Rule 48.14, the defendants sought dismissal of a personal injury action for delay following prolonged inactivity and incomplete document production.

The court reviewed the transition from the former Rule 48.14 to the revised rule effective January 1, 2015 and considered whether the plaintiff had shown cause why the action should not be dismissed.

Although the plaintiff’s delay in delivering an affidavit of documents was inexcusable, the court found no demonstrated prejudice to the defendants and noted that procedural remedies such as motions for further and better disclosure had been available.

Considering the relatively modest delay and the policy reflected in the amended rule extending the time to set an action down for trial, the court permitted the action to proceed.

The court ordered sworn affidavits of documents and additional productions within 45 days and directed that a pre‑trial conference be scheduled.

The plaintiff brought a motion for leave to deliver a jury notice after the close of pleadings and after the action was set down for trial, and to compel the defendants to comply with undertakings given at discovery.

The underlying action involves claims of unpaid wages, false imprisonment, and unsafe working conditions.

The court granted leave to deliver the jury notice, finding that the delay was due to inadvertence and there was no prejudice to the defendants.

The court also ordered the defendants to comply with the outstanding undertakings, finding they had not made 'best efforts' to do so.

No costs were awarded due to the plaintiff's delay in bringing the motion.