CANADA Trends and Developments Contributed by: Elizabeth Bowker, Shadi Katirai, Christian Breukelman and Grace Murdoch, Stieber Berlach LLP
because someone else may have such a claim. This limiting principle guides insurers in underwriting public and other institutions. Ontario’s approach is not universal across Canada. Many provinces do not follow the Ragoonanan prin- ciple in class actions. For example, British Columbia, Alberta, Saskatchewan, Manitoba, Prince Edward Island, Nova Scotia and New Brunswick have an express provision in their respective class actions leg- islation which permits a person who is not a member of the class to act as a representative plaintiff, but only if it is necessary to avoid a substantial injustice to the class. Québec’s Code of Civil Procedure also allows the court to consider whether the proposed class as a whole advances viable claims against the defendants, rather than requiring a direct cause of action between the representative plaintiff and each defendant. By contrast, Ontario has no such statutory provisions. The Superior Court recently applied the Ragoonanan principle in its 2024 decision in Pugliese v Chartwell . That proposed class action was brought against mul- tiple long-term care homes alleging negligence in the homes’ failure to prevent and respond to the COV- ID-19 pandemic. Most of the long-term care homes named as defendants had no lis with the proposed representative plaintiffs. Pugliese emphasised the continued importance of maintaining a legal nexus between plaintiffs and defendants and cautioned against treating separate organisations as a single enterprise merely because they operate in the same sector. The court reinforced the proposition that simi- larity between defendants is not necessarily common- ality. On appeal, the plaintiffs in G . G . challenge the Ragoo- nanan principle. They argue that where multiple defendants are alleged to have engaged in substan- tially similar conduct giving rise to common issues, a class proceeding should be permitted to proceed against all defendants, even where the representa- tive plaintiffs have claims against only one or some of them. Their argument rests largely on access-to-justice con- cerns. The plaintiffs and several interveners submitted on appeal that requiring a representative plaintiff to
have a personal claim against every defendant can become an insurmountable barrier where affected individuals are vulnerable, difficult to identify, reluctant to come forward or otherwise unable to participate in litigation. The respondents and another intervenor to the appeal submitted that the Ragoonanan principle should remain good law in Ontario, including because of the specific statutory wording governing class actions in Ontario. Accordingly, they submitted that class actions require a representative plaintiff with a cause of action against each named defendant. This issue has potentially significant implications for class action litigants in Ontario as well as their insurers. If a representative plaintiff with a claim against each named defendant is no longer required, plaintiffs may increasingly seek to pursue broad sector-wide pro- ceedings involving multiple institutional defendants. Similar class actions could arise in litigation involv- ing healthcare organisations, educational institutions, municipalities, long-term care operators, social ser- vice providers, professional bodies and other regu- lated entities. Multi-defendant proceedings increase defence costs, create coordination challenges among insurers and insureds, complicate settlement discus- sions and can significantly increase litigation pressure by aggregating claims. Accordingly, the class actions bar and insurers await the appeal decision with interest to see if the Ragoo- nanan principle will continue to guide the structure of class actions in Ontario. Whether the decision ulti- mately settles the issue, its implications will extend far beyond the birth alert litigation from which it arose. Privacy Class Actions Continue to Evolve Beyond Data Breaches Insurers’ exposure to privacy litigation is no longer confined to failures to protect information from exter- nal threats. Liability may also arise from an organisa- tion’s own practices in collecting, recording, monitor- ing and managing personal information. Although cyberattacks and data breaches continue to generate substantial privacy class action litigation, a recent common issues trial decision suggests a grow-
59 I NSURANCE L I T IGATI O N 2026
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