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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.

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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.

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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.

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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

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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.

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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.

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Firm News

D’Arcy McGoey Successful In Priority Arbitration

D’Arcy McGoey was successful on behalf of our client in a priority arbitration (Allstate Insurance Company of Canada v. State Farm Mutual Automobile Insurance Company, January 5, 2021, Arbitrator Jones) addressing the one-year limitation to commence arbitration. Arbitration Jones concluded that the initiating insurer did not commence arbitration within one year of the first Notice of Dispute, as opposed to the Notice of Dispute delivered to our client. The arbitrator also considered whether the Motor Vehicle Accident Claims Fund is an “insurer” for post-2010 accidents, and whether a claimant not involved in an accident could seek benefits from the Fund.

Read more about the decision here

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Firm News

New Year 2021

Anticipation. New beginnings. Better than ever.

Those are just some of my New Year thoughts. TGP looks forward to providing its clients with outstanding legal services in 2021.

Christopher Schnarr
Managing Partner

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Firm News

First virtual Insurance Law Symposium

On November 6th, Thomas Gold Pettingill LLP hosted its first virtual Insurance Law Symposium. The symposium was a big success with more than 140 clients and insurance industry colleagues joining us via webcast. In attendance were claims adjusters, claims managers, risk managers, brokers and others.

Good news! Even if you missed our live webcast, a recorded version is available at the following link http://tgp.lawcast.tv.

The topics discussed at our Insurance Law Symposium this year were:

  1. Covid-19 Business Interruption Claims
    by Alex Pettingill, Thomas Donnelly and Joyce Tam
  2. Top 5 Insurance Cases of 2020
    by Sean Murtha and Josh Knox
  3. Navigating Court Processes – What to Expect in COVID Times and Beyond
    by Sarah Jones and Rhema Kang
  4. Recreational Trail and Bike Path Liability
    by Adam Bucci, Tim Crljenica and Sara Baum
  5. Assessing Damages in Head Injury Cases
    by Ian Gold, Nadine Nasr and Natasha O’Toole

The Symposium was moderated by Christina Polano.

Please feel free to reach out to any of our lawyers if you have questions or comments after watching our webcast. We always look forward to hearing from you!

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Firm News

AB Fall Forum was a success!

On October 23, 2020, TGP hosted over 65 viewers by webinar for our annual Accident Benefits Fall Forum. The seminar focused on the impact of the COVID-19 pandemic on AB claims and was moderated by D’Arcy McGoey from TGP. Chris McCormack presented on the legal aspects of the pandemic including limitations and the treatment of CERB benefits. A panel discussion was held involving Tim Barradas and Dr. Moez Rajwani both of whom commented on the practical effects of the pandemic as it pertains to claims handling and medical assessments. The seminar was concluded with a presentation by Ada Lika who discussed recent AB case law.

On behalf of TGP, a donation was made to the COVID-19 Healthcare and Hospital fund.

https://www.linkedin.com/posts/tgplawyers_ml-decision-activity-6727309906619244544-hchL