Victor J. Paolone

This appeal arose from the dismissal of a class proceeding claiming damages against the Crown for negligence related to the presence of Bovine Spongiform Encephalopathy (BSE) in Canada between 2003 and 2008.

The trial judge dismissed the claim, finding it barred by section 9 of the Crown Liability and Proceedings Act, and also that no duty of care was owed and no negligence occurred.

The Court of Appeal upheld the dismissal, focusing solely on the application of section 9.

It found that various government programs providing financial assistance to cattle farmers in response to the BSE outbreak constituted "compensation" under section 9, thereby barring the negligence claim as it sought double recovery for the same factual basis of loss.

The Ontario Superior Court of Justice heard unopposed applications by the Joint Committee in the national Hepatitis C class actions (Parsons and Kreppner) to allocate approximately $160 million in "Excess Capital" from the settlement fund.

The Joint Committee proposed four recommendations to increase various benefits for approved class members and family members, including lump sum payments, loss of guidance/care/companionship awards, lost pension benefits, and loss of services rates.

The court granted the application, finding the proposed allocations reasonable, non-discriminatory, and consistent with the settlement agreement's purpose of bridging compensatory gaps.

The defendants moved to dismiss the proposed class proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

The plaintiffs did not oppose the dismissal but requested a 60-90 day delay of the effective date to locate new representative plaintiffs for a fresh action.

The court held that s. 29.1 is a mandatory provision and the court lacks discretion to delay the effective date of the dismissal.

The motion to dismiss was granted.

This is a joint decision from the Supreme Court of British Columbia, Alberta Court of Queen’s Bench, Ontario Superior Court of Justice, and Superior Court of Québec concerning the administration and termination of the national Hepatitis C class action settlement.

Class Counsel sought orders approving a third pro rata payment from the PELD Fund, payment of class counsel disbursements, approval of administrative expenses, waiving a future audit, and a declaration terminating the Settlement Agreement.

The courts approved all requests, with a minor variation regarding the termination process, and also granted relief from forfeiture to a class member for a missed payment.

The plaintiff brought a class action on behalf of Canadian cattle farmers against the Government of Canada, alleging negligence in its response to the threat of Bovine Spongiform Encephalopathy (BSE), commonly known as 'mad cow disease'.

The plaintiff claimed that Canada failed to implement a ruminant-to-ruminant feed ban in a timely manner and failed to prevent cattle imported from the United Kingdom from entering the animal feed chain, which led to the discovery of a BSE-infected Canadian cow in May 2003 and the subsequent closure of international borders to Canadian cattle and beef.

The court dismissed the action, finding that the claim was barred by section 9 of the Crown Liability and Proceedings Act because the class members had received compensation through various government financial assistance programs.

Furthermore, the court held that Canada did not owe a private law duty of care to the cattle farmers and that its policy decisions regarding the monitoring of imported cattle and the timing of the feed ban were reasonable and did not breach the standard of care.

During a class action trial regarding the federal government's alleged negligence in preventing mad cow disease, the defendant sought to read into evidence discovery transcripts from the current representative plaintiff, the deceased former representative plaintiff, and other class members.

The court denied the request to read in the current representative plaintiff's evidence, applying the rule in Browne v. Dunn, as the plaintiff had already testified and the evidence did not merely fill a gap.

The court also denied leave to read in the deceased former plaintiff's evidence under Rule 31.11(6) and (7), finding the excerpts to be of limited importance and lacking cross-examination.

However, the court permitted the defendant to read in discovery evidence from other class members, as it provided helpful real-world insight into the financial impact on different cattle producers.

During a common issues trial regarding the federal government's alleged negligence in preventing the spread of Bovine Spongiform Encephalopathy (mad cow disease), the plaintiff sought to admit eight foreign public records for the truth of their contents.

The defendant argued the documents should only be admitted to show the government's knowledge of them.

The court held that the documents, which included reports from the World Health Organization and the European Commission, met the criteria for the public documents exception under s. 25 of the Ontario Evidence Act and were admissible for the truth of their contents, though the court reserved judgment on the weight to be given to them.

During a common issues trial concerning the impact of Bovine Spongiform Encephalopathy (BSE) on Canadian farmers, the plaintiff sought to admit the affidavit and cross-examination transcript of a deceased witness, Mr. Mel McCrea.

The defendant, the Attorney General of Canada, objected on the basis of necessity, arguing that other witnesses could provide similar information.

The court applied the principled exception to the hearsay rule, finding that Mr. McCrea's evidence met both the necessity and reliability thresholds.

The court emphasized the unique nature of Mr. McCrea's first-hand account regarding the first Canadian-born BSE-diagnosed cow and the prior cross-examination, ruling the evidence admissible.

This ruling addresses a hearsay objection raised by the defendant during a common issues trial concerning the 2003 Bovine Spongiform Encephalopathy (BSE) outbreak.

The defendant sought to strike out several paragraphs from the affidavit of Lawrence Sears, the plaintiff's principal, arguing they contained inadmissible hearsay.

The court dismissed the objection, finding that the statements in the affidavit were based on Mr. Sears' personal knowledge, experience, and observations, and thus were not hearsay.

The judge emphasized that the evidence could be tested through cross-examination.

This ruling addresses the admissibility of the plaintiff's expert reports as evidence-in-chief in a complex common issues trial concerning the Bovine Spongiform Encephalopathy (BSE) outbreak.

The defendant objected to the hybrid trial process, arguing that expert evidence should be presented viva voce rather than through reports.

The court dismissed the defendant's objection, affirming the trial judge's discretion to admit expert reports as direct evidence in non-jury hybrid trials, consistent with prior case management orders.

The decision emphasized that this approach enhances trial efficiency and does not prejudice the opposing party's right to cross-examination.

The parties in a class action jointly sought an adjournment of the trial commencement to allow time to finalize settlement discussions.

The court granted the adjournment, moving the trial start date from February 1, 2021, to February 16, 2021, noting that no further adjournments would be granted.

The plaintiff in a certified class action regarding the federal government's response to the Mad Cow Disease outbreak brought a motion under the Interprovincial Summonses Act to compel the attendance of the former federal Minister of Agriculture, Ralph Goodale, as a witness at trial.

The court dismissed the motion, finding that while the proposed witness's evidence would be relevant, it was neither necessary nor essential to the administration of justice.

The plaintiff already had copious documentary and oral discovery, and the federal government planned to call sixteen civil servants from Agriculture Canada at trial.

The defendants in a 15-year-old class action regarding the federal government's response to the mad cow disease crisis brought a motion to adjourn the peremptory trial date of January 18, 2021, to September 2021.

They cited difficulties preparing due to the COVID-19 pandemic and the late delivery of supplementary expert reports by the plaintiff.

The court dismissed the motion for a lengthy adjournment, finding that the parties were well-resourced to conduct a virtual trial and that the late expert reports were responsive to the defendants' own late productions.

The trial commencement was postponed by two weeks to February 1, 2021, to allow for the completion of remaining pre-trial steps.

Costs decision arising from a Rule 21 motion in a proposed class proceeding.

The plaintiffs sought partial indemnity costs after largely resisting the defendants’ motion to strike, while the defendants sought costs because the plaintiffs abandoned several claims during the motion, including conspiracy and negligence claims involving the Attorney General of Canada.

The court found that the plaintiffs substantially succeeded on remaining claims but materially altered their pleadings and abandoned significant allegations during the hearing.

Given the divided success and the altered nature of the action, the court concluded that neither side should receive costs.

The appellant, a motor vehicle lessor, was sued after an accident involving its leased vehicle driven by an excluded driver.

The respondent insurer denied coverage based on an OPCF 28A Excluded Driver Endorsement signed by the lessees.

The insurer had provided the appellant with a certificate of insurance noting the endorsement but failed to deliver a copy of the endorsement itself.

The Court of Appeal held that under section 232(3) of the Insurance Act, an insurer must deliver a copy of every endorsement to the insured.

The insurer's failure to do so precluded it from relying on the endorsement, triggering its duty to defend and indemnify the appellant.

The appellant appealed an order striking his claim against a court-appointed trustee.

The Court of Appeal dismissed the appeal, finding that the allegations related to the trustee's conduct in its appointed capacity and the appellant had failed to seek leave to sue as required by section 215 of the Bankruptcy and Insolvency Act.

Following the release of reasons for judgment allowing the appeals by the Canadian Red Cross Society and Canada, the Court of Appeal received written submissions on the costs of the trial.

The Court ordered that the Canadian Red Cross Society shall have its costs on a party-and-party scale from the plaintiffs, with no costs to or against Canada or Ontario.

The disposition of Bayer's costs ordered by the trial judge was not disturbed.

The plaintiffs, who suffered from Hemophilia B, contracted HIV from unheated Factor IX blood products distributed by the Canadian Red Cross Society (CRCS).

They sued the CRCS, Bayer, and Ontario in negligence, alleging a delay in the introduction of heat-treated Factor IX.

The CRCS claimed over against Canada, alleging regulatory delay.

The trial judge found the CRCS and Canada liable for delaying the transition to heat-treated products.

On appeal, the Court of Appeal overturned the trial decision, finding that the CRCS and Canada did not breach their respective standards of care, as the delay was due to necessary regulatory approvals.

The Court also found that the plaintiffs failed to prove the dates of their infections, which was fatal to causation, and that the trial judge erred in drawing adverse inferences against the CRCS for not calling certain witnesses.