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 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.

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.

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 appellant, a self-employed eavestrough installer, purchased disability insurance from the respondent insurer.

After suffering injuries from a fall in 2007, he received disability benefits until November 2011, when the insurer terminated payments.

The insurer's lawyer sent a letter in January 2012 explaining the termination.

The appellant did not commence an action until April 2015, more than two years after the termination.

The motion judge granted summary judgment dismissing the action as statute-barred under the Limitations Act, 2002.

The appellant appealed, arguing that the insurer breached its duty of good faith by failing to inform him of the applicable limitation period when it terminated his benefits.

The Court of Appeal dismissed the appeal, holding that an insurer's duty of good faith does not require it to give notice of a limitation period to its insured.

The defendant, successful on a summary judgment motion, sought partial indemnity costs of $51,019.50.

The plaintiff argued for no costs due to the novelty of the issue, or a significant reduction due to excessive claims and impecuniosity.

The court found the issue not novel enough to deny costs entirely, affirming the usual rule that costs follow the event.

However, applying principles of reasonableness, proportionality, and access to justice, and inferring the plaintiff's impecuniosity, the court reduced the defendant's claimed fees by excluding pre-litigation work and significantly cutting research/drafting time.

The final costs awarded were fixed at $23,750.00.

The defendant insurer moved for summary judgment to dismiss the plaintiff's action for disability benefits, arguing it was statute-barred by the Limitations Act, 2002.

The court found the insurer's denial letter was clear and unequivocal, triggering the two-year limitation period in January 2012.

The plaintiff's action, commenced in April 2015, was therefore out of time.

The court rejected the plaintiff's argument that the insurer had a common law duty to advise the insured of the limitation period, stating such an extension of the duty of good faith should be left to the legislature.

The motion for summary judgment was granted, and the action dismissed.

Two competing groups of plaintiffs brought carriage and stay motions regarding proposed class actions against Zimmer for allegedly defective hip implants.

The court considered the problematic of multiple class actions across Canada, including the differences between opt-in and opt-out regimes.

The court granted carriage to the McSherry action, which was coordinated with a certified British Columbia class action, and stayed the competing Mets, D'Anna, and Ducharme actions, finding this to be in the best interests of the class members.