Executive Summary: Key Legal and Evidentiary Issues

• The Plaintiffs sought court approval of a Notice of Proposed Settlement and a Pre-Approval Notice Plan in a certified class action against Aviva Insurance Company of Canada.
   
• Approval of the notice program was required under section 29(2) of the Class Proceedings Act, 1992 before the underlying settlement itself could be considered.
   
• Class members consist of Ontario denturists insured under a Commercial Insurance Policy who submitted business interruption claims tied to COVID-19 restrictions.
   
• Coverage issues centre on "Restricted Access" and "Negative Publicity" provisions under a Business Income – Actual Loss Sustained policy form.
   
• Procedural history left the file bearing a Commercial List (CL) number rather than a standard class proceeding (CP) number, raising a formality the court addressed.
   
• Aviva consented to the motion, and no opposition was before the court.
   

Facts of the case

Matt McCallum and his professional corporation brought a certified class action against Aviva Insurance Company of Canada on behalf of Ontario denturists insured under a Commercial Insurance Policy issued through the Denturist and Hearing Aid Specialists Program, Policy 81278157. Justice Belobaba certified the action on July 27, 2021, defining the class as policyholders who submitted claims for loss of business income where premises access was restricted by a civil authority order — including the Ontario government's March 23, 2020 closure order — or where a claim arose from a COVID-19 outbreak within one kilometre of the insured premises. Following certification, Belobaba J. approved a certification notice program on August 25, 2021, under which Aviva supplied class counsel with contact information for class members, and class counsel disseminated notice accordingly. On July 2, 2026, the parties executed a Settlement Agreement, conditional on court approval. The motion before Justice Morgan sought approval of a further Notice of Proposed Settlement and an accompanying Pre-Approval Notice Plan, informing class members of the settlement and their right to object by August 28, 2026. The motion proceeded on consent of Aviva and was heard in writing on August 10, 2026.

Policy and legislative provisions at issue

The certified class turns on coverage under "Restricted Access" and/or "Negative Publicity" provisions found in the Business Income – Actual Loss Sustained (Broad Form Perils) coverage, Form 402014-02, attached to the Aviva policy. These provisions underlie claims for business income loss tied to government-ordered closures or COVID-19 outbreaks near insured premises. On the procedural side, section 29(2) of the Class Proceedings Act, 1992 governs the requirement that a settlement in a class proceeding receive court approval, which is the statutory basis for the notice-approval motion itself.

Reasoning and analysis

Justice Morgan found the proposed Notice of Proposed Settlement to be appropriately informative and noted that the Pre-Approval Notice Plan followed the same dissemination methods that had proven successful during the earlier certification notice process. The court separately addressed an anomaly in the court file number: due to a period during which the action was on the Commercial List, the file carries a CL designation rather than a CP designation typical of class proceedings. Justice Morgan characterized this as a formality that should not impede the filing of this or future motion materials, directing that the action be treated going forward as though it bore a CP file number. To formalize this, the court asked Plaintiffs' counsel to provide a revised draft Order reflecting the endorsement.

Ruling and overall outcome

Justice Morgan approved the Notice of Proposed Settlement and the Pre-Approval Notice Plan, granted on consent of Aviva. The decision does not address or resolve the merits of the underlying coverage dispute, nor does it approve the Settlement Agreement itself — that step remains subject to a future approval hearing following the notice and objection period ending August 28, 2026. No monetary amount was ordered, awarded, or otherwise specified in this decision, as it deals solely with procedural approval of the notice mechanics.