Ontario Denturists Class Action: McCallum v. Aviva
Posted June 16, 2020Updated March 14, 2022
Lerners LLP class action against Aviva Insurance
Lerners LLP has filed a class action on behalf of Ontario denturists whose insurance coverage for loss of business income relating to COVID-19 has been denied by Aviva Insurance Company of Canada.
This action applies to Denturists Association of Ontario (DAO) members who were insured under the commercial insurance policy issued by Aviva on behalf of the DAO (pursuant to the Denturists and Hearing Aid Specialists Program, bearing Policy # 81278157). The action alleges that Aviva is in breach of contract when it denied the denturists’ loss of business income coverage after they were ordered by the provincial government to close their non-essential businesses due to the outbreak of COVID-19. The action claims for payment of loss of business income damages to those denturists with the Aviva policy.
Attention Class Members
This action is certified. Notice of Certification will be forthcoming. A copy of the Notice of Certification is accessible here. The opt-out period has closed. If you did not opt-out before November 14, 2021 at 5:00pm EST, and fall within the class definition, you are a class member. If you are a class member, please ensure that we have your current contact information and that you keep our offices informed of any changes in your contact information.
The class definition is: All persons, natural or corporate, carrying on operations usual to a denturist who were insured by and have submitted a claim to Aviva Insurance Company of Canada (“Aviva”) under a Commercial Insurance Policy issued by Aviva on behalf of the Denturist Association of Ontario, pursuant to the Denturists and Hearing Aid Specialists Program (“Denturist Program”), bearing Policy 81278157, which included “Restricted Access” coverage and/or “Negative Publicity” coverage under Business Income – Actual Loss Sustained (Broad Form Perils) (Form 402014-02), and which claimed loss of business income:
a) while access to its premises was restricted in whole or in part (“Restricted Access”) by an order of civil authority, including the mandatory closure order made by the Province of Ontario on March 23, 2020 (the “Closure Order”), and/or
b) while access to its premises was restricted in whole or in part by any subsequent order of civil authority, and/or
c) as a direct result of an outbreak of COVID-19 within 1 kilometre of its premises.
The Denturist Action is preparing to proceed to the common issues phase of the litigation. The Plaintiff’s present intention is the make a Rule 20 motion for summary judgment as soon as reasonably possible and as directed by the Court. This summary judgment motion will determine common issues related to the coverage questions and interpretation of the Policy.
Please check back on this page for further updates.
If you have any questions on the current state of the proceeding please do not hesitate to contact us at the contact information below.
If you are a denturist with an insurance policy issued by Aviva on behalf of the DAO and were denied your loss of business income coverage, please contact Alfonso Campos Reales at acamposreales@lerners.ca, or denturistclassaction@lerners.ca, or 519.640.6362, or toll free at 1.844.867.9024.
Procedural History
This action has been proceeding with another similar action on behalf of branches of the Royal Canadian Legion and similar service organizations.
Carriage
On January 6 and 15, 2021, the court heard a motion to determine which law firm will have carriage over this matter. On January 21, 2021, the court ruled in favour of Lerners LLP. A copy of the Order of Justice Belobaba can be viewed here. A copy of the Reasons of Justice Belobaba dated January 26, 2021 can be viewed here.
Certification
Justice Belobaba has been appointed as the case management judge for this proposed class proceeding.
A separate proposed class action against Aviva has also been proceeding together with the Denturist/Legion Actions (the “Nordik Action”). The Nordik Action seeks to advance the claims of the Aviva insureds who are not part of the Denturist/Legion Actions.
The motion for certification of the proposed class action proceeded on May 18, 2021, and July 5-6, 2021. The action was certified as a class action in July 2021. A copy of the Order of Justice Belobaba certifying the class action can be viewed here. A copy of the Reasons of Justice Belobaba dated July 15, 2021 can be viewed here.
In a separate order, the court settled the means by which Notice of Certification shall be given (the “Notice Program”). A copy of the Order of Justice Belobaba settling the Notice Program can be viewed here.
The defendant sought leave to appeal the certification decision to the Divisional Court, which was specifically focused only on the supplemental Negative Publicity Coverage issues in the Denturist Action. The defendant was also seeking leave to appeal the Nordik Action certification decisions in their entirety.
In an order date December 21, 2021, Belobaba J. set aside the Nordik Action certification decisions and directed a rehearing of the Nordik Action certification motion. That Order is a matter solely affecting the Nordik Action. A copy of the Order of Justice Belobaba dated December 21, 2021 setting aside the Nordik Action certification decisions and directing a rehearing of the Nordik Action certification motion can be viewed here.
The Plaintiffs’ in the Nordik Action sought leave to appeal Belobaba J.’s December 21, 2021 Order to the Divisional Court.
The Divisional Court determined it would hear both motions for leave to appeal sequentially, with the Nordik Action motion going first, followed then by the initial and earlier motion by Aviva for leave to appeal. Both motions for leave to appeal were heard in writing by the Divisional Court the week of March 7, 2022. On March 11, 2022, the Divisional Court dismissed Nordik’s motion for leave to appeal to set aside the order of Belobaba J. dated December 17, 2021. In dismissing Nordik’s motion, the Divisional Court also dismissed Aviva’s motion for leave to appeal, finding Aviva’s appeal was now moot. A copy of the Endorsement of the Divisional Court dated March 11, 2022 can be viewed here.
This website provides only general information about this class action. While it is not always current, it is updated from time to time as information becomes available.
This website is not designed to and does not provide legal advice or answer legal questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice for your individual situation. This website does not replace independent legal advice.
Providing information through this website does not make you a client of Lerners LLP or our co-counsel, does not create a solicitor-client, fiduciary or other form of relationship, and does not make you a member of the class. Whether or not you are a class member is determined by court order. Any information you provide will not be privileged, confidential or private. The information you provide may assist in prosecuting this matter as a class action and assessing damages for the class overall.
Documents:
- Statement of Claim
- Fresh as Amended Statement of Claim
- Frequently Asked Questions
- Reasons of Justice Belobaba awarding carriage to Lerners – January 26, 2021
- Order – January 19, 2021
- Reasons of Justice Belobaba certifying the action – July 15, 2021
- Order – July 27, 2021
- Order – August 25, 2021
- Certification Frequently Asked Questions
- Order of Justice Belobaba dated December 21, 2021
- Endorsement of the Divisional Court dated March 11, 2022