Categories
Firm News Industry News

TGP Successful in Motion to Strike

Natasha O’Toole was successful in a motion to strike all causes of action against five personally-named employees of Mohawk College, without leave to amend, in Barber v. Goerz, 2021 ONSC 3698.

The plaintiff was a student enrolled in the paralegal program at Mohawk College. Students in the paralegal program are given the opportunity to participate in community placements. Herman’s Supply Company offered one such placement. Mohawk College provided Herman’s with a copy of the plaintiff’s resume for consideration. The Herman’s liaison responded with two emails raising concerns about the plaintiff’s history.

The plaintiff claimed for $1.1 million against Herman’s, its liaison, Mohawk College, and five Mohawk employees, alleging defamation, negligence, and breaches of his rights under various statutes. The Mohawk defendants moved under Rule 21.01(1)(b), to strike the amended statement of claim as against the personally-named Mohawk employees on the basis that it disclosed no reasonable cause of action.

Justice Reid allowed the motion, and struck the amended statement of claim as against the personally-named Mohawk employees, without leave to amend. He accepted that the bulk of the allegations against those defendants were in pith and substance decisions made within their ostensible authority as Mohawk employees. Other allegations were either based on speculation or were bald assertions unsupported by material facts. There were no facts to support that any of the personally-named Mohawk defendants committed independent tortious acts, or that their actions exhibited a separate identity or interest from Mohawk. The allegations lumped the employees together as if they were a single party, so it was not possible for each of them to look at the pleading and understand what the plaintiff said he or she did that caused harm, and when the harm was caused. In the circumstances, Justice Reid found it to be plain and obvious that the amended statement of claim did not disclose a properly pleaded cause of action as against the personally-named Mohawk defendants.

With respect to leave to amend, Justice Reid noted that the plaintiff had already amended his pleading extensively after he was first faced with the Mohawk defendants’ motion to strike and the case law relied upon in support of the motion. The amended pleading remained deficient. It was reasonable to assume that if material facts existed that would support that the personally-named Mohawk defendants committed an independent tortious act or exhibited a separate identity or interest from Mohawk, then those facts would have been specifically pleaded. Justice Reid found no benefit in permitting a further attempt by the plaintiff to find some tenable basis for a claim against the personally-named Mohawk defendants. Leave to amend was denied.

For more information on our Education Claims practice, please contact Alex Pettingill or Christina Polano.

Categories
Firm News Industry News

TGP Welcomes Jananie Manoharan and Shelly Kubik

Thomas Gold Pettingill is growing with the addition of two new associates. Jananie will be practicing in the area of statutory accident benefits (SABS) litigation and general tort defence work. She articled with a multinational insurance company before joining the firm. Jananie is a 2021 call. To learn more about Jananie or to contact her, click here.

Shelly is joining the coverage group at TGP and will also be practicing insurance litigation. She articled at an insurance company and was called to the bar in 2021. Shelly is fluent in French. To learn more about Shelly or to contact her, click here.

Categories
TGP Decisions

TGP Successful in Precedent Setting Coverage Decision

Tom Donnelly and Joyce Tam were successful in the Ontario Superior Court in The Corporation of the City of Belleville v. Gore Mutual Insurance Company, 2021 ONSC 3854.

This case arises out of a coverage dispute between the Plaintiff, City of Belleville and the Defendants, the Insurers. The Defendants brought a Rule 21 Motion against the Plaintiff in front of the Ontario Superior Court of Justice. Justice Kershman held that the Defendants were successful on the motion.

A Director’s Order was issued by the Ontario Ministry of the Environment and Climate change on August 31, 2015, against several individuals and entities, including the City of Belleville. The Director’s Order found pollution and contamination on the Belleville Gas Plant site and required the remediation of the contaminated site. Belleville appealed the Director’s Order and sought relief at the Environmental Review Tribunal. The City of Belleville sought to have the Insurers defend the regulatory proceeding that it had appealed at the Environmental Review Tribunal. The Defendants contended that the Director’s Order was not a “civil action” and therefore, the Insurers did not have the duty to defend the City of Belleville.

Motion Hearing Issues
The Court was asked to consider whether the Director’s Order, an environmental regulatory proceeding, is a “civil action” within the meaning of the insurers’ liability policies, and in the affirmative, whether the insurers had the duty to defend the City of Belleville.

Motion Judge’s Decision
In the case before the Court, the insurance policies insured against civil actions and civil actions for damages. Therefore, the Court had to determine whether the Director’s Order was a “civil action” within the meaning of the insuring policies. In defining “action”, Justice Kershman relied on the definitions provided in the Rules of Civil Procedure and the Courts of Justice Act. In defining “civil action for damages”, the Court relied on the reasoning of Justice Caswell in Brockton (Municipality) v. Frank Cowan Co Ltd., who stated, in relevant part, that: “legal fees associated with responses to regulatory and investigative authorities […] including the [Ministry of the Environment] and the Public Inquiry, engineering expenses and remediation expenses are all outside the limits of the contractual risks undertaken by the Insurers”[1].

The Court relied on Justice Penny’s reasoning in General Electric Canada Company v. Aviva Canada, Inc.[2], who noted that the precision of policies is a relevant consideration. By way of contrast, in the General Electric Canada Company v. Aviva Canada, Inc. case, the insurance policies provided that the insurer would defend “suits” and “claims” against the insured. In the case at bar, the Court found that the wording and terms of the Defendants’ policies were specific, and therefore, it was reasonable to conclude that the insurance policies only provided coverage for civil actions, as defined by the Rules of Civil Procedure and the Courts of Justice Act. Accordingly, Justice Kershman held that a “civil action” or an “action” is not the same or equivalent to a “suit”.

Therefore, on the issue of whether the Director’s Order against the City of Belleville is a “civil action” within the meaning of the Insurers’ liability policies, Justice Kershman found that the City of Belleville’s regulatory appeal of the Director’s Order was not captured within the meaning of the words “civil action” or “action” in the insurance policies presented before the Court. Justice Kershman held that in appealing the Director’s Order, the City of Belleville entered an administrative appeal process as opposed to a civil litigation process.

Therefore, the City of Belleville’s regulatory proceedings were excluded from coverage.

Accordingly, the Court found that the Insurers did not have the duty to defend the City of Belleville. The duty to defend is a contractual obligation government by the terms of the insurance policy. The duty to defend refers to the insurer’s obligation to defend claims against an insured which are potentially covered by the insurance policy. In this case, the City of Belleville’s administrative appeal process was excluded from coverage under the insurance policies since the regulatory proceedings did not meet the definition of “civil action”. Justice Kershman followed the Court of Appeal’s position in Brockton (Municipality) v. Frank Cowan Co Ltd. [3] in holding that the duty to defend did not include legal fees incurred in response to regulatory and investigative authorities. Therefore, the insurers’ duty to defend the City of Belleville was not triggered.

[1] Brockton (Municipality) v. Frank Cowan Co Ltd.[2000] O.J. No. 4455 (S.C.), para. 91
[2] General Electric Canada Company v. Aviva Canada, Inc., 2010 ONSC 6806, 10 C.C.K.I. (5th) 16

Read more

Key Takeaways

  • A regulatory clean up order is not a “civil action” and does not trigger coverage under a CGL policy.
  • This precedential decision provides guidance to Canadian courts, policyholders, and insurers in claims involving regulatory orders and the duty to defend and will be an important precedent for Canadian insurers facing pollution liability claims.

For more information on our Insurance Coverage practice, please contact Tom Donnelly or Joyce Tam.

Categories
Firm News

TGP Successful in LAT Claim

Tim Crljenica was successful in defending an accident benefits claim for income replacement benefits, medical benefits, removal from the Minor Injury Guideline, and funding for catastrophic impairment assessments. The decision is M.A.H. v. Travelers Insurance (19-002005/AABS).

Following a three day hearing, LAT Adjudicator Therese Reilly concluded that the claimant did not suffer any of chronic pain, concussion, psychological impairment, or pre-existing conditions. The adjudicator also preferred the opinion of the insurer’s psychological expert over that of the claimant’s expert. The evidence also showed that the claimant continued to work in his pre-accident employment and began a new occupation in the year after the accident.

Read more

Categories
Firm News

TGP Welcomes Jaime Yanevski and Leah Burlock

Thomas Gold Pettingill is proud to announce that Jaime Yanevski and Leah Burlock have joined the firm as associates.
Jaime’s practice will focus on the areas of insurance litigation including motor vehicle claims, occupiers’ liability, and municipal liability claims. Jaime was called in 2017. He has experience working at a personal injury firm, including appearing before the Ontario Superior Court and Small Claims Court. To learn more about Jaime or to contact him, click here.

Leah will be practicing primarily in the areas of statutory accident benefits and insurance litigation. Leah was called in 2019 and articled at a boutique litigation firm.  To learn more about Leah’s practice at TGP or to contact her, click here.

Categories
Firm News

Ian Gold and Sean Murtha to Speak on the Impact of COVID-19 on Litigation in Ontario and Significant Court Decisions

On March 12, 2021, Ian Gold and Sean Murtha will present to the Society of Public Insurance Adjusters of Ontario (“SPIAO”).

Ian and Sean will discuss the procedural and practical impact that the COVID-19 pandemic has had with respect to file handling and the litigation process, including the effect of the temporary suspension of limitation periods, how to schedule virtual assessments of plaintiffs by defence experts, and the transition to remote hearings. They will also go over a number of significant court decisions which have been released over the past year, with a particular emphasis on how those cases impact municipalities and school boards.

Categories
Industry News

Bill 118 and Limitation Periods in the COVID-Era

Ian Gold and Adam Bucci presented on the newly passed Bill 118, the amendments to the Occupiers’ Liability Act, and the state of limitation periods in the COVID-era. Bill 118 has meaningfully changed the Occupiers’ Liability Act by adding certain reporting / notice requirements that claimants must follow if they wish to ultimately commence a lawsuit against an occupier following a slip and fall on snow or ice.

Limitation periods have also been affected as a result of the global pandemic. From March 16th to September 14th, 2020, the limitation clock stopped running. As such, all limitation periods imposed by the Province for claims that encompass this window of time have been extended by 183 days, including those claims whose limitation period ordinarily would not have fallen within that 6-month window.

Categories
Firm News

TGP Successful in Appeal of Anti-SLAPP Decision

Alex Pettingill, Joyce Tam, and Natasha O’Toole, were successful on appeal in Subway Franchise Systems of Canada, Inc. v Canadian Broadcasting Corporation, 2021 ONCA 25
In its decision released on January 18, 2021, the Ontario Court of Appeal confirmed that the anti-SLAPP (Strategic Litigation Against Public Participation) provisions under s. 137.1 of the Courts of Justice Act (the “CJA”) can be used to dismiss negligence claims. Further, the Court held that a Trent University lab, retained by CBC to conduct testing in support of CBC’s investigative journalism, did not owe a duty of care to Subway, as there was insufficient proximity between the parties.

Background
CBC retained a Trent University lab to conduct DNA testing on chicken products from several fast food restaurants, including Subway. Trent conducted the testing and reported its results to CBC, which subsequently broadcast those results in a Marketplace episode and related digital media.

Subway sued CBC and Trent for $210 million. Subway claimed against Trent concurrently in defamation and negligence. With respect to Subway’s negligence claim, Subway alleged that: Trent knew that the testing was being conducted for the purpose of broadcasting conclusions about Subway’s products, advertising, brand, and business to a wide audience; Trent owed Subway a duty of care in carrying out testing of Subway products; and Trent breached that duty of care.

Trent’s Anti-SLAPP Motion
Trent moved to dismiss the negligence claim against it pursuant to s. 137.1 of the CJA on the basis that the claim arose from an expression relating to a matter of public interest and that the negligence claim did not have substantial merit because: (1) it did not meet the legal test for a tort claim to be brought concurrently with a defamation claim; and/or (2) Trent did not owe Subway a duty of care.

In denying Trent’s motion to dismiss Subway’s negligence claim, Justice Morgan found that the claim did not arise from an expression relating to a matter of public interest under s. 137.1(3), and therefore s. 137.1 was not engaged. Justice Morgan reasoned that negligence actions are aimed at conduct rather than speech, whereas he considered s. 137.1 to be aimed at “expressive torts”, like defamation. He focused his analysis on the “site of the negligence”, which he considered to be how Trent performed its testing and not the communication of the results. In his analysis under s. 137.1(4), Justice Morgan applied the standard applicable on a Rule 21 motion to strike. He held that the negligence claim had sufficient merit to proceed and the harm suffered by Subway outweighed the public interest in protecting Trent’s expression.

Trent’s Appeal
The primary issues on appeal were whether Subway’s negligence claim against Trent arose from an expression relating to a matter of public interest and whether Subway’s negligence claim had substantial merit. The Court of Appeal held in Trent’s favour on both issues. It set aside Justice Morgan’s order and replaced it with an order dismissing the negligence claim.

Section 137.1(3) Subway’s Negligence Claim against Trent Arose from an Expression Relating to a Matter of Public Interest
The Court of Appeal affirmed that the only threshold requirement to properly engage the dismissal mechanism under s. 137.1 is that the proceeding arises from an expression relating to a matter of public interest. Section 137.1 is not limited to defamation claims – any cause of action can meet the threshold requirement where “[t]he expression is causally connected to the claim; there is a nexus between them; the expression grounds the claim; and the claim targets the expression.” (para 41). It is not necessary for the expression to be the gravamen of the claim.

The Court held that Trent’s expression of or about its test results was integral to all aspects of Subway’s negligence claim and that the nature of the expression, being the chicken content of sandwiches sold by Subway and its competitors, is a matter of public interest. Therefore, Trent met the threshold burden of establishing that the negligence claim against it arose from an expression relating to a matter of public interest.

Section 137.1(4)(a) Subway’s Negligence Claim against Trent did not have Substantial Merit
The Court of Appeal confirmed that for a proceeding to have substantial merit within the meaning of s. 137.1(4)(a), it must have a “real prospect of success”.

Given that Subway’s negligence claim was for pure economic loss, Subway was required to show a duty of care in conformity with the principles recently set out by the Supreme Court of Canada in Livent (2017 SCC 63) and Maple Leaf (2020 SCC 35).

The Court of Appeal held that Subway’s negligence claim did not have a real prospect of success in establishing a relationship of proximity analogous to any established category of proximity. On a novel duty of care analysis, the facts did not show a close and direct relationship between Subway and Trent – they did not show any expectations, representations, undertakings, reliance, or statutory obligations. As such, there was no real prospect that Subway could establish proximity sufficient to ground a duty of care, and Subway’s negligence claim lacked substantial merit.

Key Takeaways

  • Anti-SLAPP motions under s. 137.1 of the CJA are not limited to defamation claims. They can be used to resist any cause of action that arises from an expression related to a matter of public interest within the meaning of s. 137.1(3) of the CJA.
  • An independent lab retained to conduct testing for use in investigative journalism does not owe a duty of care to the subjects of its testing unless the specific facts support a finding of proximity.

For more information on our Defamation Practice, or our work defending universities, please contact Alex Pettingill

Categories
Firm News Industry News

Chris Schnarr to speak at Osgoode CPD Accident Benefits 2021 Program

On February 23, 2021 Chris Schnarr will be participating at the Osgoode CPD Accident Benefits 2021 Program. Chris will be a panel member discussing “Ethical and Professional Issues in Accident Benefits Cases”.

The panel will be moderated by Sharon Dagan of Van Arnhem & Associates and will examine realistic fact situations involving challenging professionalism issues in an Accident Benefits practice. The emphasis will be on considerations that should guide lawyers and paralegals in meeting their professional obligations, while advocating effectively for clients.

Chris will be drawing upon his 26 years of practicing in the field of accident benefits in order to provide practical advice for those participating in the program.

Click here for registration.

Categories
Firm News Industry News

Joyce Tam Speaking at Civil Sexual Assault CPD

Joyce Tam will be speaking at Osgoode’s “Civil Sexual Assault: Critical and Emerging Issues” CPD on February 25, 2021, which will be a live interactive webcast.

Joyce will be part of a panel discussing institutional liability. The panel will be covering: what’s new in negligence and vicarious liability; strategies for dealing with the special challenges with and for large institutions; and potential ethical issues with institutional liability claims.

Registration for this CPD can be found at “www.osgoodepd.ca/civilsexual“. The conference will also cover topical industry issues such as navigating credibility and memory issues, privacy torts, defamation and anti-SLAPP motions, and strategies for navigating overlapping proceedings.