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Natasha O’Toole Joins the Partnership

Thomas Gold Pettingill LLP is pleased to announce that Natasha O’Toole has joined the partnership as of January 1, 2023.

Natasha is a graduate of Queen’s University Law School, and she has been a valued member of TGP since 2017. Natasha’s practice focuses on complex insurance litigation matters, including the defence of professional negligence, defamation, sports and recreation liability, tavern liability, product liability, motor vehicle accident claims, occupiers’ liability, and municipal claims. She also regularly handles subrogation and transportation matters. Natasha has represented clients before the Ontario Superior Court of Justice, the Ontario Court of Appeal, and various provincial tribunals.

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TGP’s 2022 Fall Forums

TGP was pleased to host its annual Insurance Law Symposium on November 4, 2022, and its annual Accident Benefits Fall Forum on November 10, 2022. Both presentations are available for viewing, and can be found at http://tgp.lawcast.tv/

The Insurance Law Symposium included multiple panels, covering property appraisals and inspections; the top five insurance cases of the past year; municipal claims; recent trends in concussion cases; rising damages awards; and an update on COVID-19 litigation and class actions.

The Accident Benefits Forum discussed current trends and pitfalls to avoid in relation to treatment plans, recent LAT trends, and recent accident benefits and priority case law. TGP thanks everyone who took the time to view and participate in both forums. We look forward to seeing everyone again in 2023!

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TGP Successful in Coverage Decision

Background
Tom Donnelly and Joyce Tam successfully defended a motion in which the plaintiffs were seeking indemnity under a professional liability policy (the “Policy”).
The Policy provided coverage for claims brought against the plaintiffs during the policy term. However, the Policy contained an exclusionary clause (the “Clause”) denying coverage if the insured was aware of the claim(s) prior to the commencement of the policy term but failed to inform the insurer thereof. The Clause states: We shall not cover claims: [ … ]

arising out of or resulting, directly or indirectly, from any wrongful act committed prior to the first inception date if, as of the first inception date, your Global Claims & Insurance Department or Chief Legal Counsel knew or could have reasonably foreseen that such wrongful act did or would result in a claim against you; [ … ] [Emphasis added]

Before the Policy came into effect, a client of the plaintiffs, MFRM, sent a litigation hold letter on March 30, 2016, stating that it was leading investigations that could result in a claim against the plaintiffs. MFRM then dismissed the plaintiffs and interrogated Mr. Deitch, an employee who had been the plaintiffs’ lead contact with MFRM. They also sought access to his phone to document text and email messages.

The plaintiffs’ Chief Legal Counsel was informed of the interrogation and of the potential involvement of Mr. Deitch in wrongdoing committed by MFRM’s former CEO. In the summer of 2016, the plaintiffs retained counsel to review Mr. Deitch’s email correspondence and entered into a joint defence agreement with his lawyer.

Issue
The sole issue in dispute was the degree of knowledge regarding the potential claim that was necessary in order for the Clause to apply.

Decision
The Court rejected the plaintiffs’ argument that they were required to possess knowledge that a claim “would result” for the Clause to apply. It held that the term “would” was not used as an imperative in the Clause, but rather described a future condition or possibility. The Court ruled that the test was objective, and asked whether Chief Legal Counsel for the insured could have reasonably foreseen that a claim would be brought during the duration of the policy.

The Court noted that, while the plaintiffs frequently received litigation hold letters, this time they had hired a lawyer to review documents regarding the alleged wrongdoing. The plaintiffs had even entered into a joint defence agreement with counsel for Mr. Deitch to defend claims from MFRM.

The Court accepted the arguments made by TGP and found that Chief Legal Counsel’s knowledge of Mr. Deitch’s interrogation and the actions that he took in response demonstrated that he could have reasonably foreseen that a claim would arise during the policy term. As such, the Court held that the exclusionary clause applied and dismissed the plaintiffs’ application.

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Chris McCormack Joins the Partnership

Thomas Gold Pettingill LLP is pleased to announce that Chris McCormack has joined the partnership as of January 1, 2022.

Chris is a graduate of Osgoode Hall Law School, and he has been a valued member of TGP since 2016. Chris’ practice is focused in the area of statutory accident benefits claims (including priority and loss transfer disputes) and the defence of personal injury claims. Chris has successfully represented insurers and insureds before the Ontario Superior Court of Justice (including appeals before the Divisional Court), the Licence Appeal Tribunal, the Financial Services Commission of Ontario, and in Small Claims Court.

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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.

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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.

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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

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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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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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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