Tim Farrell

In a class action against a long-term care home regarding a COVID-19 outbreak, the parties agreed on the terms of a certification order except for the temporal scope of discovery regarding infection prevention and control (IPAC).

The defendants sought to limit questions to the three weeks prior to the first outbreak, while the plaintiff sought an undefined period leading up to the outbreak.

The court adopted the plaintiff's flexible approach, holding that the relevance of IPAC matters preceding the outbreak must be assessed on a question-by-question basis during discoveries.

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 class action concerned historical sexual abuse perpetrated by Ralph Rowe, an Anglican priest and Scout leader, against Indigenous boys in remote communities.

The court approved a $13.25 million settlement, which included a unique trauma-informed claims process with two tracks (simplified Schedule A up to $140,000, and more rigorous Schedule B up to $350,000).

The settlement also provided for apologies from the Anglican Church of Canada and Scouts Canada, and funding for counselling.

The court found the settlement fair, reasonable, and in the best interests of the class members, emphasizing the benefits of timely resolution and the innovative, claimant-centric claims protocol.

The plaintiff brought a proposed class action against numerous pharmaceutical manufacturers and distributors regarding the marketing and sale of opioids in Canada.

The defendants moved to strike the statement of claim for failing to disclose a reasonable cause of action, and one defendant, Pro Doc Limitée, moved to dismiss the action against it for lack of jurisdiction.

The court granted Pro Doc's jurisdiction motion, finding no real and substantial connection to Ontario.

The court struck the claims against the distributor defendants without leave to amend, finding no viable cause of action.

The court found that while there were viable causes of action against the manufacturer defendants for breach of the Competition Act, negligent misrepresentation, fraudulent misrepresentation, and failure to warn, the plaintiff's pleading was defective.

The court struck the claims against the manufacturer defendants with leave to amend to join representative plaintiffs for each defendant group and to comply with the rules of pleading.

The appellant sought to certify a global class action against an Ontario accounting firm for auditor's negligence regarding a clean audit report used in a US private placement.

The motion judge denied certification, finding no real and substantial connection to Ontario for the foreign investors and concluding that joinder was preferable to a class proceeding.

The Divisional Court upheld this decision.

The Court of Appeal allowed the appeal, holding that the motion judge erred by mischaracterizing the claim as being about the foreign financing rather than the Ontario-based audit, and by failing to properly conduct the comparative access to justice analysis required for the preferable procedure criterion.

The action was certified as a class proceeding.

During a continued pretrial in a civil action involving multiple defendants in an equipment-related dispute, the parties were unable to reach resolution.

The court addressed scheduling concerns for an anticipated lengthy jury trial estimated to take six to eight weeks.

The matter was removed from the May 2016 blitz sittings, and the case management judge indicated that a trial date would be fixed, potentially in another judicial region to accommodate the extended duration.

Directions were also provided regarding pretrial motions, preparation of joint document books, and submission of proposed jury questions in advance of the pretrial motions.

The plaintiff appealed the dismissal of its motion to certify a global class action against an Ontario accounting firm for negligence and negligent misrepresentation in an audit report.

The Divisional Court (majority) upheld the motion judge's decision, finding no palpable and overriding error in the conclusion that joinder was the preferable procedure and that Ontario lacked a real and substantial connection to the claims of the foreign investors.

The appeal and a motion for leave to appeal costs were dismissed.

A dissenting judge would have allowed the appeal and certified the class action.

Following dismissal of a certification motion in a proposed securities-related class proceeding, the court addressed a dispute regarding a disbursement claimed by the successful defendant for expert opinion evidence on American securities law.

The plaintiff argued the expert evidence was premature and unnecessary at the certification stage and should not be recoverable as a cost.

The court held that obtaining expert advice regarding potential application of American law was reasonably within the contemplation of the parties given the large number of American investors in the proposed class.

The court concluded that the expert opinion’s utility was tied to the certification motion and had no meaningful future value following refusal of certification.

The disbursement was therefore recoverable immediately along with agreed partial indemnity costs.

A proposed class action sought certification against an accounting firm for alleged negligent misrepresentation and negligence arising from a clean audit opinion included in a private placement memorandum for a hog‑farming company.

Accredited investors alleged the audit enabled a financing that later collapsed after disclosures about inadequate financial controls in a cash‑based business.

The court held the pleadings disclosed tenable causes of action and some proposed common issues satisfied the certification threshold.

However, the proposed global class lacked a real and substantial connection to Ontario and a class proceeding was not the preferable procedure, as the investors were identifiable, sophisticated, and capable of pursuing joined claims individually.

Certification was therefore refused.

Following a successful application permitting a limited partnership to continue a proposed class proceeding despite a registration error under the Limited Partnerships Act, the court addressed costs.

The moving party sought partial indemnity costs, or alternatively substantial indemnity costs after making an offer to settle.

The responding party argued that no costs should be awarded because the motion was required to remedy the moving party’s own mistake.

The court held that although the error required the application, the responding party chose to contest the legal issue regarding whether the existing action could continue.

Partial indemnity costs of $22,500 were awarded to the moving party.

The proposed representative plaintiff in a class proceeding sought leave under s. 28(2) of the Limited Partnerships Act to maintain an action commenced while it was inadvertently non‑compliant with Ontario registration requirements following a partnership name change.

The defendant argued that the non‑compliance rendered the original action a nullity and that the plaintiff must commence a new proceeding.

The court rejected that interpretation and held that the statutory language permitting a party to “maintain” a proceeding allows continuation of an existing action once leave is granted.

Where the failure to register was inadvertent, the public was not misled, and compliance had been corrected, the statutory conditions for leave were satisfied.

The motion was granted and the existing proceeding allowed to continue.

The appellants appealed the dismissal of their action for misfeasance in public office against the Alcohol and Gaming Commission of Ontario.

The appellants argued the trial judge applied the wrong test and failed to find recklessness or wilful blindness in the respondents' handling of a licence transfer application.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the test for misfeasance in public office and his factual findings negating malice and recklessness were supported by the record.

The respondents' cross-appeal on damages and trial costs was also dismissed.

The appellant appealed and the respondent cross-appealed the trial judge's equal apportionment of liability in a slip and fall case.

The appellant tripped over a sand bucket upon exiting a building.

The Court of Appeal found that the evidence supported the trial judge's conclusion that both parties were contributorily negligent, as the appellant was moving too fast and failed to keep a proper lookout, while the respondent had placed the bucket on the landing.

The appeal and cross-appeal were dismissed.

The appellant, an inmate at a provincial correctional centre, tripped over a bucket and fell on concrete stairs.

He completed an Accident/Injury Report seven days later.

He later commenced an action against the Crown for negligence and breach of the Occupiers' Liability Act.

The Crown successfully moved for summary judgment on the basis that the appellant failed to provide notice within the ten-day period required by s. 7(3) of the Proceedings Against the Crown Act.

On appeal, the Court of Appeal held that while the ten-day notice period applied, the Accident/Injury Report completed by the appellant constituted sufficient notice under s. 7(1) of the Act because it provided sufficient particulars and communicated a complaint that could reasonably be anticipated to result in litigation.

The appeal was allowed.

The appellants sought judicial review to quash notices of potential findings of misconduct issued by the Commissioner of the Inquiry on the Blood System in Canada.

The appellants argued the Commissioner exceeded his jurisdiction by making findings that amounted to civil or criminal liability, and that the late delivery of the notices breached procedural fairness.

The Supreme Court of Canada dismissed the appeal, holding that a commissioner may make findings of misconduct and evaluate facts according to standards of conduct, provided they do not amount to conclusions of legal liability.

The Court also found the procedural protections afforded to the parties were extensive and the timing of the notices was fair given the complexity of the inquiry.