Vincent Genova

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.

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.

This decision concerns the approval of a class action settlement and associated legal fees and honoraria following an aircraft accident.

The class action arose from a November 9, 2018 incident where Fly Jamaica Flight OJ 256 made an emergency landing, resulting in substantial damage and passenger injuries.

After extensive negotiations, a $5,550,000.00 lump sum settlement was reached.

The court approved the settlement agreement, certified the action against newly added defendants for settlement purposes, approved class counsel's fees of 25% of the settlement amount plus disbursements, and approved a $5,000 honorarium for each representative plaintiff.

The court found the settlement to be within the range of reasonableness and the fees to be fair and reasonable.

The moving parties, class action plaintiffs, brought a motion for leave to appeal an order of Glustein J. dated December 6, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

The moving parties brought a motion for leave to appeal an order of Morgan J. dated December 21, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondents in the amount of $7,500.

The Court of Appeal for Ontario heard a motion to quash an appeal regarding the appointment of a litigation administrator.

The moving parties argued that the appointment was an interlocutory order and therefore not appealable to the Court of Appeal.

The responding parties contended that the order became final because it was joined with a final order validating a provisional opt-out form.

The Court found that the appointment of a litigation administrator is an interlocutory order, distinct from decisions made under that authority.

Consequently, the appeal from the order appointing the litigation administrator was quashed, while the appeal concerning the opt-out form remained.

This endorsement addresses the quantum of costs following the Plaintiffs' successful certification motion in a class action.

The court, while acknowledging the Plaintiffs' entitlement to costs on a partial indemnity scale, disallowed a claim for nearly $20,000 in docketed time spent on preparing the costs submissions themselves, deeming it novel and not to be encouraged.

The court rejected the Defendants' argument that the Plaintiffs' fees were too high, noting that both sides invested similar hours and the difference in dollar amounts reflected firm structure rather than overwork.

The Plaintiffs were awarded all-inclusive costs of $496,000.

The plaintiffs sought certification of a national class action against the defendants regarding alleged defects and failures to warn associated with Allergan breast implants, specifically concerning risks of BIA-ALCL, premature rupture, and ASIA/BII.

The court found that the plaintiffs met all the criteria under section 5(1) of the Class Proceedings Act, 1992, including demonstrating a plausible methodology for their claims through expert evidence, despite significant scientific debate.

The action was certified against all defendants, expanding a previous partial certification order.

The plaintiffs brought a motion for partial summary judgment seeking payment of an accidental death benefit and other expenses under an insurance policy following the death of an international student in the downing of Ukraine International Airlines Flight PS752 by Iranian missiles.

The defendant insurers argued the claim was excluded under a clause denying coverage for losses related to an act of declared or undeclared war, or military or usurped power.

The court excluded the defendants' expert evidence on the ultimate issue of policy interpretation.

Relying on the Canadian Forensic Examination and Assessment Team report, the court found the missile strike was not premeditated and did not constitute an act of war or an act of a usurped power.

The court granted partial summary judgment for the $100,000 accidental death benefit but dismissed the claim for repatriation and travel expenses without prejudice due to a lack of evidence.

The Plaintiffs brought a motion to amend their Statement of Claim and for partial certification of a proposed national class action concerning BIOCELL textured breast implants.

The amendments sought to add representative plaintiffs from parallel actions and reorganize the claim.

One defendant, Allergan Inc., consented to both the pleading amendments and the partial certification of a defined class and six common issues, including product defect, duty to warn, and consumer protection breaches.

The court granted the amendments and partial certification against Allergan Inc., finding that the proposed class and common issues met the criteria under the Class Proceedings Act, 1992.

The balance of the certification motion against the other defendants was adjourned.

The plaintiffs sought early production of an investigation report from the defendants to determine whether there was an evidentiary basis to serve two John Doe defendants located in Mexico.

The defendants opposed the request, arguing that the normal discovery process under the Rules of Civil Procedure should be followed.

The court agreed with the defendants, holding that the plaintiffs could not compel early production to avoid the ordinary costs risks of litigation.

The plaintiffs were ordered to serve the remaining defendants within 60 days.

The plaintiff brought a motion to strike the defendant's jury notice in a motor vehicle accident action due to ongoing COVID-19 trial delays.

The court granted leave under Rule 48.04(1) to hear the motion, noting the substantial and unexpected change in circumstances caused by the pandemic.

Balancing the parties' interests and the severe backlog of civil and criminal jury trials in London, the court conditionally struck the jury notice, provided the matter is called for a judge-alone trial during the weeks of May 10 or 17, 2021.

If judicial resources are unavailable then, the jury notice will be maintained without prejudice to the plaintiff's right to renew the motion closer to the rescheduled trial date.

This costs endorsement follows a bifurcated jury trial where liability was determined, finding 92% against the plaintiffs and 8% against the defendants.

The plaintiffs sought approximately $120,000 in partial indemnity costs plus $20,000 in disbursements, while the defendants proposed approximately $40,000 plus disbursements.

The court awarded the plaintiffs $55,000 in partial indemnity costs plus disbursements, noting that the plaintiffs' bill of costs conflated liability and damages issues.

The court commended counsel for their informed approach to bifurcating the trial and suggested that the Civil Rules Committee consider amending the Rules of Civil Procedure to allow judicial discretion in bifurcating liability and damages without party consent.

This initial case conference in a proposed class action concerning allegedly defective breast implants addressed procedural coordination across multiple jurisdictions and the establishment of a certification motion schedule.

The court set a detailed schedule for the Ontario certification motion, including deadlines for records and cross-examinations, with the hearing scheduled for December 2021.

The court declined to mandate an immediate multi-jurisdictional case conference, emphasizing that inter-plaintiff counsel agreement is the primary mechanism for resolving overlapping claims.

Additionally, the court directed plaintiffs to ensure proper service on unserved foreign defendants to prevent delays.

This endorsement from a case conference addressed procedural issues concerning examinations for discovery scheduled for a three-week period.

Key issues included confirming the discovery schedule for defendants, determining the order of examination between co-plaintiffs, and allocating discovery costs.

The court set the discovery schedule, ordered one plaintiff's counsel to examine witnesses first due to preparedness, and denied a request for an advance list of questions.

Costs were apportioned 3/4 to one plaintiff's clients and 1/4 to the self-represented plaintiff.

The insurer requested a reconsideration of a Licence Appeal Tribunal decision that denied its request for repayment of $6,059.23 in Income Replacement Benefits (IRBs) paid to the insured.

The insurer argued that the Tribunal erred by failing to deduct corporate losses from the insured's pre-accident self-employment income when calculating the quantum of IRBs payable.

The Vice-Chair agreed, finding that under section 7(2) of the Statutory Accident Benefits Schedule, losses from self-employment must be used to reduce pre-accident employment income.

After deducting the corporate losses and post-accident income, the insured's IRB entitlement was zero.

The reconsideration was granted, and the insured was ordered to repay the $6,059.23 overpayment.

This initial case conference for a proposed class action addressed the consolidation of two actions, the defendant Boeing Company's contemplation of a jurisdictional challenge, and the defendant Fly Jamaica Airways Ltd.'s apparent cessation of operations, with its insurer undertaking the defense.

A preservation notice was sent to Fly Jamaica.

The certification motion was scheduled for September 3, 2019.

The plaintiff, Byron Gracey, brought a motion on consent for certification of a class action under the Class Proceedings Act, 1992.

The action sought compensation for persons who contracted Giardiasis from the Ramada Beacon Harbourside Hotel pool between September 2012 and January 2013, including derivative claims under the Family Law Act.

The defendant, 1093823 Ontario Limited, and third parties, Regional Municipality of Niagara and Margaret Parks Swimming Schools Limited, consented to certification.

The court found that all criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 were satisfied, and the motion for certification was granted.

The plaintiff, a self-represented litigant in a wrongful conviction action, brought a motion to appoint a non-lawyer with a history as a vexatious litigant as an amicus curiae to assist him during examinations for discovery.

The Crown defendants brought a cross-motion to exclude the non-lawyer from attending further discoveries due to his disruptive conduct.

The court dismissed the plaintiff's motion, finding that the non-lawyer did not meet the criteria for an amicus curiae and that his appointment would violate the Rules of Civil Procedure and the Law Society Act.

The court granted the Crown defendants' motion, barring the non-lawyer from attending further discoveries due to his history of disruptive behaviour and failure to comply with previous court directions.

The court also permitted the plaintiff to attend the discoveries of the companion action plaintiffs by video or telephone.

Aviva applied to the Licence Appeal Tribunal for repayment of $6,059.23 in income replacement benefits (IRBs) paid to the respondent, arguing the amount was paid in error due to a miscalculation of his pre-accident self-employment income.

The respondent disputed the recalculation and sought ongoing IRBs.

The Tribunal found that the respondent correctly designated his gross employment income from his last fiscal year prior to the accident under section 4(2)3 of the Schedule, and that corporate losses should not be deducted from his personal income.

The Tribunal dismissed Aviva's claim for repayment and ordered Aviva to pay the respondent IRBs of $400.00 per week from October 18, 2013 to date, plus interest.

The respondent's request for costs was dismissed.