Stephen M. Birman

On January 8, 2020, Ukraine International Airlines flight PS752 was shot down by Iranian air defence missiles shortly after takeoff from Tehran, killing all 176 persons aboard.

The trial judge found that UIA breached the standard of care by failing to conduct a proper security risk assessment in accordance with ICAO 10084 (Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zones).

Specifically, UIA failed to access necessary and available information, failed to conduct a hazard identification and safety assessment, and failed to communicate with the flight commander before departure.

As a result, UIA's liability under the Montreal Convention was unlimited rather than capped at approximately $235,000 per passenger.

The appellate court dismissed UIA's appeal, finding no palpable and overriding error in the trial judge's findings of fact or mixed fact and law.

In a certified class proceeding arising from alleged COVID-19 business interruption coverage denials, the moving parties sought production of internal insurer documents relevant to common issues alleging breach of the duty of good faith and punitive damages.

The court held that the bad faith allegations had sufficient evidentiary foundation, particularly given the certification findings and evidence of an apparent blanket denial process, to move the request beyond a fishing expedition.

Internal materials concerning the insurer's corporate-level denial decision, adjuster communications, and reinsurer communications about a later pandemic exclusion were found relevant to contemporaneous decision-making and after-the-fact policy interpretation.

Production was ordered for categories (c), (d), and (e), but not for comparator materials concerning different insurance programs in category (f).

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 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.

This case conference addressed the content and costs of the notice to be sent to class members following certification of a class action against an insurer.

The defendant insurer objected to the proposed notice content, which encouraged class members to submit claims, arguing it was improper advocacy.

The insurer also challenged the scope of notice distribution (to brokers and on its website) and sought to avoid notice costs.

The court approved the plaintiff's proposed notice content, finding it consistent with the insurer's own position on claim submission and the purpose of class notice.

The court denied the request for the insurer to post the notice on its website but ordered the insurer to provide policyholder and broker contact information.

The court further ordered that the costs of disseminating the notice, including administrator fees, be shared equally between the class and the insurer, citing the insurer's blanket denial of coverage as a factor.

The respondent, Sara Baker, suffered a stroke and was denied long-term disability benefits by the appellant, Blue Cross Life Insurance Company of Canada.

A jury at trial found in favour of Baker, awarding retroactive benefits, aggravated damages, and $1.5 million in punitive damages, along with full indemnity costs.

Blue Cross appealed the punitive damages award and sought leave to appeal the costs award.

The Court of Appeal dismissed the appeal of the punitive damages, finding ample evidence of Blue Cross's reckless indifference or deliberate strategy to deny benefits, and that the quantum was rationally connected to deterrence.

The Court granted leave to appeal costs but ultimately dismissed the costs appeal, upholding the full indemnity costs based on Blue Cross's misconduct and the respondent's settlement offer, correcting the trial judge's reasoning for the costs award.

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 respondent, Nordik Windows Inc., brought a motion to quash an appeal by the appellants, Aviva Insurance Company of Canada et al., arguing the underlying order was interlocutory and required leave to appeal to the Divisional Court.

Aviva contended the order was final as it determined a limitation period issue.

The Court of Appeal found the motion judge's order was interlocutory, as it did not finally determine the limitation period defence, but rather dismissed the motion without a final conclusion on that issue.

The appeal was therefore quashed.

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 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.

This case conference addressed the scheduling of multiple motions following a previous order for a re-hearing of a certification motion.

Counsel for both the plaintiff and defendants sought to schedule additional motions concurrently, including the plaintiff's motion to add representative plaintiffs, the defendants' summary judgment motion against the representative plaintiff, and the defendants' limitations motion regarding the tolling of the limitation period.

Despite a prior order only addressing the certification re-hearing, the court exercised its discretion to hear all four motions together over a three-day period, citing judicial economy due to substantial overlap in issues and counsel's agreement.

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 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.