The recent major Ontario Court of Appeal decision Loblaw Companies Limited v. Royal & Sun Alliance Insurance Company of Canada, 2024 ONCA 145 (CanLII) was precipitated by five class action lawsuits (“Class Actions”) claiming billions of dollars against companies involved in the opioid industry. The defence costs are expected to be very significant. The question who pays these costs and how was a central issue.

The claims span over 20 years beginning in 1996 when the pharmaceutical company, Purdue, started selling the opioid, OxyContin. 

The Class Actions were brought by the Government of British Columbia and from opioid user groups from several provinces. The claims were brought against the opioid producers, pharmaceutical companies and distributors of the products including the national grocery chain Loblaw and the national drug store Shoppers Drug Mart, and a company called Sanis, which manufactured two generic opioids (“the Insureds” or “the respondents”) 

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In this case, the Plaintiff was at a TD branch in Scarborough in May 2013, using a bank machine in the vestibule during the evening. As he was leaving, he started a fight with two young men waiting behind him. The Plaintiff was badly beaten as seen on surveillance video, leaving him with lasting impairments. The Plaintiff’s attacker was charged and subsequently convicted, having to serve significant jail time. The Plaintiff sued the two young men, who never defended the action, as well as TD. The Plaintiff alleged that TD had failed to keep him safe, by not having a security guard in place, not having conducted a “risk assessment” and letting the bank machine be open at night in a supposedly high crime neighborhood. David Zuber brought a summary judgment motion on behalf of TD which was ultimately heard in March 2020. The motion judge, Justice LeMay, took over a year to write his decision, and released it in September 2021, granting TD’s motion for summary judgment motion and dismissing the action.

The Plaintiff appealed based on three issues: (i) the availability of summary judgment in a civil action in which a party served a jury notice; (ii) the motion judge’s exclusion of expert evidence; and (iii) the fairness of the summary judgment process used in this case. The Court of Appeal found no merit to any of the Plaintiff’s arguments and dismissed the appeal in favour of TD.

This will likely be the leading case on the importance of jury notices in the context of a summary judgment motion.

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Great work Glen Bushi and team who were able to achieve a favorable result for our client at the License Appeal Tribunal in Ahmed v. BelairDirect, 2023 ONLAT 21-006910/AABS.

The issues in dispute were as follows:

1. Are the Applicant’s injuries predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit?
2. Is the Applicant entitled to a non-earner benefit of $185.00 per week from April 29, 2019 to April 1, 2021?
3. Is the Applicant entitled to the cost of a chronic pain assessment in the amount of $2,200.00 and a psychological assessment in the amount of $2,179.22?
4. Is the applicant entitled to interest on any overdue payment of benefits?

The LAT concluded that based on the medical record available to it and the evidence given by the Applicant during his Examination in Chief and Cross-examination, the Applicant’s injuries were predominantly minor in nature. Further, the LAT concluded that the Applicant was not entitled to non-earner benefits as he had failed to show that “he suffers from a complete inability to carry on a normal life within 104 weeks of the accident”. The LAT further concluded that the Applicant is not entitled to the cost of the examinations. To read the full decision, please click on the link below.

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