Stephen Birman

The plaintiffs brought actions against Ukraine International Airlines (UIA) under the Montreal Convention following the shoot-down of Flight PS752 by Iranian military surface-to-air missiles shortly after takeoff from Tehran.

UIA admitted the shoot-down was an 'accident' under the Convention, making it strictly liable, but sought to limit its liability by proving it was not negligent in allowing the flight to depart.

The Superior Court of Justice found that UIA failed to meet the standard of care for a reasonable airline operating in or near a conflict zone, as it did not conduct a proper security threat risk assessment or any safety risk assessment, and failed to gather available intelligence or brief the flight commander.

The court held that UIA failed to prove its negligence did not cause the passengers' deaths or that the harm was too remote, resulting in unlimited liability for the airline.

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 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 plaintiff attended the emergency department after suffering multiple stab wounds, including one to his right knee.

The defendant emergency physician assessed the wounds as superficial, sutured them, and discharged the plaintiff.

Weeks later, an MRI revealed a completely transected patellar tendon, requiring complex reconstructive surgery due to the delay.

The court found that the tendon was completely transected at the time of the initial emergency visit.

The defendant breached the standard of care by failing to properly assess the knee's extensor mechanism, failing to detect air in the knee joint on x-rays, and failing to refer the plaintiff to an orthopedic surgeon.

The court concluded that this negligence caused the delayed diagnosis and worsened the plaintiff's outcome.

Judgment was granted in favour of the plaintiff.

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.

The plaintiffs brought a motion to strike several paragraphs from the defendant insurer's statement of defence.

The plaintiff pedestrian was struck by a motor vehicle and suffered catastrophic injuries.

The insurer, added as a defendant, pleaded that the collision was an intentional act in self-defence and included allegations about the plaintiff's past criminal record, gang affiliation, and drug involvement.

The court found these allegations to be irrelevant evidence that improperly cast a derogatory light on the plaintiff's character.

The court struck the offending paragraphs under Rule 25.11, concluding that their prejudicial effect outweighed any potential probative value.

The plaintiffs and defendants brought a joint motion for approval of a proposed settlement in a class action regarding alleged misrepresentations about access to a golf course and clubhouse in a residential subdivision.

Following discoveries, it was determined that the defendants were impecunious.

The settlement provided for a $150,000 payment and free lifetime clubhouse memberships for class members.

The court approved the settlement as fair and reasonable given the defendants' lack of assets, and approved class counsel's significantly discounted fees of $48,645.

The plaintiffs brought an omnibus motion for certification, settlement approval, and class counsel fee approval in a class action against a vending machine distributor and a vendor of candies.

The action alleged misrepresentation and breach of the statutory duty of fair dealing under the Arthur Wishart Act.

Following the dismissal of the action against the candy vendor and the dissolution of the vending machine distributor, the parties agreed to a settlement distributing the remaining trust funds pro rata among class members.

The court certified the action for settlement purposes, approved the settlement as fair and reasonable, and approved class counsel's reduced fee request.

The defendants brought motions to strike the statement of claim brought by a parent and a minor child against a child protection agency, its employees, and a school vice-principal.

The parent alleged negligence relating to the apprehension of the child, the child’s placement in foster care, and school disciplinary decisions.

The court held that child protection agencies and their staff owe a duty of care to the child, not to the parent, relying primarily on the Supreme Court’s decision in Syl Apps Secure Treatment Centre v. B.D., and found that the parent’s pleading disclosed no reasonable cause of action.

The court also found statutory immunity under the Child and Family Services Act was not displaced due to the absence of pleaded particulars of bad faith.

The parent’s claim was struck without leave to amend, while the minor’s claim was stayed pending appointment of a litigation guardian represented by counsel.