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Spring 2018 – Newsletter

Welcome to In|Sight, Rogers Partners’ quarterly newsletter that offers our unique perspective on relevant legal issues and the internal happenings of the firm.

Settling Over the Limits Auto Claims

By Thomas MacMillan

On March 8, 2018, the Ontario Superior Court released its decision in Foniciello et al. v. Bendall and Acculine et al, 2018 ONSC 1611.  This ruling, in what was a long personal injury trial, stands as a stark warning to defendants and insurers wishing to extricate themselves early from a multi-party action involving a motor vehicle accident.


The case arose from injuries sustained by one of the plaintiffs, after he was struck by a vehicle owned and operated by the defendants, Sandra and James Bendall.  The plaintiffs also alleged negligence against the corporate defendant, Acculine Pavement Markings, for the actions of its employees working at the intersection where the accident took place.


The Bendalls had in place third party liability insurance in the amount of $1 million.  Presumably in an effort to reduce ongoing defence costs and avoid a lengthy trial, counsel for the Bendalls entered into a settlement agreement with the plaintiffs.  The agreement resulted in payment to the plaintiffs of the entirety of the Bendalls’ third party liability limits, as well as $296,763.41 in costs.  The settlement agreement was not signed by the co-defendant, and contained no provision that it disposed of the crossclaims in the action.

The settlement agreement was most noteworthy, however, by what it did not contain: neither an agreement by the plaintiffs to release the Bendalls from liability for any amount in excess of the Bendalls’ several liability; nor an agreement that the plaintiffs would indemnify the Bendalls for any contribution sought by Acculine.  Language to this effect would have rendered the settlement agreement a true Mary Carter or Pierringer agreement, respectively.

In fact, the agreement specifically noted that the payment of the policy limits “does not release James Bendall and/or Sandra Bendall from any claims for contribution and/or indemnity from any party defendant.”  The agreement was approved by order of a judge.  The order specifically noted that it, “shall not be construed or interpreted to extinguish or limit any claims of joint and several liability, and that the cross-claims as between the defendants shall survive.”

In light of the fact that the agreement made clear that payment of the Bendalls’ policy limits did not shelter them from personal exposure, it is difficult to reconcile what followed: namely, that counsel for the Bendalls did not attend or contest liability or damages at trial.  Given that the damages trial alone was 47 days long, one can assume that the rationale for having defence counsel not attend was motivated by a desire to limit defence fees, and limit any costs exposure visited on the Bendalls following the trials.

The actions of counsel and/or the insurer were all the more daring in light of several prior decisions, including Jevco Insurance Company v. Malaviya, 2013 ONSC 675, which outlined that an insurer’s duty to defend under an automobile insurance policy continues even after the full policy limits are tendered.

The result for the Bendalls  was that they were left undefended, while at the same time the settlement agreement left them unprotected from personal liability by way of the crossclaim.

Trial Outcome

A jury determined the issue of liability and found that the Bendalls were 60% at fault for the accident, while Acculine was 40% at fault.  A judge sitting alone ordered total damages in favour of the plaintiffs in the amount of $3,863,661.18.  Costs in favour of the plaintiffs were awarded in the amount of $1,100,000.

The plaintiffs sought from Acculine the entirety of the judgment, less the $1,000,000 already paid by the Bendalls.  Acculine sought an order by way of the crossclaim for the difference between what it paid the plaintiffs, and 40% of the total damages.  That difference amounted to $1,318,196.71 in damages.

Acculine also sought by way of the crossclaim the difference between what it paid the plaintiffs in costs, and 40% of the total costs award.  That difference amounted to $541,294.64.

Acculine also sought costs for its crossclaim.

The court ruled that Acculine was entitled to contribution and indemnity for the damages it sought from the Bendalls, pursuant to section 1 of the Negligence Act.  The court rejected the Bendalls’ argument that this remedy is not available to defendants found to be vicariously liable.

On the costs issue, the court ordered that some additional costs be paid by the Bendall, specifically, the sum of $86,600.  This amount was much less than that being sought by Acculine as the court acknowledged that the Bendalls did not oppose the plaintiffs at the trials and made an honest effort to settle.  Costs of the crossclaim were also ordered in an amount to be agreed on or determined.


So what will be the fallout?

The Bendalls themselves are personally liable for the contribution ordered to be paid to Acculine: over $1.3 million.  This is unlikely to be the end of the issue, however, in light of the fact that the Bendalls’ counsel did not continue to defend them after the settlement agreement.  It is unknown under what circumstances the decision to stop the defence was made, or whether the Bendalls were fully advised of their right to a continued defence by counsel paid for by their insurer.

If not, and in the event a bad faith claim is brought by the Bendalls, it is quite possible a court will find that the duty to defend was breached and that the measure of damages is equivalent to the amount the Bendalls have been ordered to pay to Acculine (over $1.3 million plus costs), along with potential punitive damages.

Although the insurer saved defence costs in the short-term, it may have opened itself up to far greater exposure.

In auto claims, insurers and defence counsel should be very cautious when settling an over the limits lawsuit when the settlement does not fully protect the insured. Although there are some conflicting decisions on the issue, the duty to defend an insured in an auto claim does not end upon paying the policy limits.

Limitation Period for Claims for Contribution and Indemnity - The Ever Unsettled State of the Law

By Meryl Rodrigues 

Despite the fact that the Limitations Act, 2002 has been in force for nearly two decades now, the law with respect to the applicable limitation period for claims for contribution and indemnity and the availability of the principle of discoverability to such claims remains in flux. Over the past few years, several lower court decisions highlight what may be termed the debatable state of the law in this area.

Miaskowski v Persaud

In Miaskowski v Persaud[1], a 2015 Superior Court decision, Justice Perell was faced with three summary judgment motions in a slip and fall action, one of which was brought by the third parties contending that the third party claim was statute-barred by application of the Limitations Act, 2002. The defendant commenced the third party claim over five years after the subject accident, and nearly three years after the identity of a prospective third party was “discovered”.

Although arguably obiter, as Justice Perell granted the other two summary judgment motions that effectively dismissed the plaintiff’s action, he nevertheless quite firmly concluded that section 18 of the Limitations Act, 2002 (applicable to claims for contribution and indemnity) imposes an absolute two-year limitation period (following the date on which the originating claim is served) with respect to claims for contribution and indemnity. His Honour found that the discoverability principle had no application to section 18, and accordingly granted the third parties’ motion.

Although Miaskowski was appealed, Justice Perell’s ruling with respect to the third party claim being statute-barred was not a subject of the appeal. Indeed, the Court of Appeal offers no analysis on the issue[2].

Demide v Attorney General of Canada

A few months after Justice Perrell’s decision in Miaskowski in 2015, Justice Leach was faced with similar issues on a motion by the defendant to advance crossclaims against a co-defendant in another slip and fall action in Demide v Attorney General of Canada et al[3]. Quite interestingly, both parties appear to have ultimately agreed that the presumptive limitation period for claims for contribution and indemnity was subject to discoverability, with the core dispute being the date of deemed discovery. Nevertheless, Justice Leach canvassed the competing viewpoints, as outlined in Miaskowski.

Significantly, however, His Honour departed from that viewpoint. He found that section 18 read in context with the other provisions of the Limitations Act, 2002 (particularly section 5(2)), creates a rebuttable presumption that a claim for contribution and indemnity is discovered on the date of service of the originating claim and that said presumption may be rebutted by proof to the contrary.

In reaching this conclusion, Justice Leach looked to Court of Appeal decisions wherein section 18 was described as creating a presumed limitation period, which he considered to mean a rebuttable presumption (i.e., subject to discoverability), rather than a conclusive one. Ultimately, however, his analysis did not affect the outcome of the defendant’s motion, as Justice Leach was satisfied that the contemplated crossclaims were barred regardless of his views on the limitation period.

Hughes v Dyck

Subsequent to the two diverging 2015 decisions of Miaskowski and Demide, Justice Pierce, in the 2016 decision of Hughes v Dyck[4], considered the two competing lines of authority, ultimately coming down on the side of Justice Perell in Miaskowski, that section 18 creates a standalone limitation period that is not subject to discoverability.

Latest Case Law

Fast forward to 2018 – two decisions demonstrate the ongoing conflict with this issue, although both reach the same conclusion.

In Marjadsingh v Toronto Transit Commission v Kahlon[5], on the defendant’s motion to add a new third party, Master Jolley was confronted with the question of whether the limitation period for claims for contribution and indemnity set out in section 18 is rebuttable or conclusive. As in Hughes, Master Jolley reviewed the diverging authorities but quite aptly noted that a determination of the issue requires more than a tallying of the number of decisions that conclude one way or the other.

Ultimately, Master Jolley held that section 18 creates a rebuttable presumptive two year limitation for claims for contribution and indemnity, which is subject to the principle of discoverability. She viewed such an interpretation as not being counter to the principles of efficiency and certainty that underlie the Limitations Act, 2002, and as being consistent with the policy consideration of not depriving parties of their right to sue before they are even aware of a claim.

More recently, in Murphy v Hart[6], the defendants brought a motion to dismiss a standalone action for contribution and indemnity by virtue of the claim being statute-barred. Faced with same issue outlined above, Justice Monahan adopted Justice Leach’s reasoning in Demide, and articulated two features of section 18: it is an interpretive provision not intended to extinguish or bar claims or impose a standalone limitation period, and it does not specify a date on which a claim is discovered but deems the “date of the act or omission upon which the claim is based” to be the date of service of the originating claim.

Justice Monahan found that the absence of reference to a rebuttable presumption in section 18 does not negate the presumption set out in section 5(2).

Notably, Justice Monahan cites a 2016 Court of Appeal decision in Fennell v Deol[7], which he viewed as suggesting that the principle of discoverability applies to claims for contribution and indemnity.

In Fennell, the motions judge determined that a defendant’s crossclaim for contribution and indemnity was timely despite having been commenced more than two years from the date that defendant was served with the original statement of claim. He did so on the basis that the defendant ought to have discovered the claim for contribution and indemnity some time after that service date, which was within two years prior to the crossclaim being advanced. The Court of Appeal held that the motion judge’s determination in that regard was entitled to deference and upheld the decision.

However, it is important to note, as Justice Monahan did, that the Court of Appeal in Fennell did not expressly address the limitation period for claims for contribution and indemnity or whether the principle of discoverability applies.


There are conflicting lower court decisions on whether there is a fixed and absolute two year limitation period for claims for contribution and indemnity which begins to run from the date a statement of claim is served on a defendant, or whether the limitation period is subject to the discoverability principle.

The more sensible interpretation is that claims for contribution and indemnity should be subject to the discoverability principle.  In some cases, the cause of action for a contribution and indemnity claim will not even arise until more than two years after the claim is served.

As an example, suppose a plaintiff was involved in an accident in January 2015 and served a claim on a defendant in January 2017. The absolute two year limitation period for claims for contribution and indemnity would expire in January 2019.

However, if the plaintiff is involved in a subsequent accident in June 2019 and sustains overlapping and indivisible injuries, it would not make sense to prevent the defendant from commencing a contribution and indemnity claim against the tortfeasor in the subsequent accident. There would have been no claim to commence at the time of the expiry of the absolute limitation period in January 2019.

Nevertheless, as it stands, appellate authority on the issue is lacking. Until an appellate level decision is rendered or the legislation is amended, it would be wise for counsel and litigants to proceed on the basis that the limitation period is absolute and cannot be extended by the discoverability principle.

[1] 2015 ONSC 1654.

[2] 2015 ONCA 758.

[3] 2015 ONSC 3000.

[4] 2016 ONSC 901.

[5] 2018 ONSC 1439.

[6] 2018 ONSC 1648.

[7] 2016 ONCA 249.

Human Rights: Investigating Discrimination

By David Rogers

Can a service provider, such as the City of Toronto, be found in breach of the Human Rights Code R.S.O. 1990, c. H.19 where one customer makes racial slurs to another customer and an employee of that service provider fails to properly address the situation?  This is an important question recently considered by a three member panel of the Ontario Divisional Court in City of Toronto v. Josephs, 2018 ONSC 67.  The answer, as is so often the case, is:  it depends.

The Incident

Kevin Josephs was a paralegal trainee on January 7, 2013, and he attended the Court Services Office of the Toronto East Provincial Court to conduct business.  Mr. Josephs identifies as a visible person of Afro Caribbean descent.  After being served by an intake clerk, he discovered an error and was advised that he would have to speak to a supervisor in order to rectify the problem.  He was given a number for his place in the queue and although the number had not been called, he approached one of the counter clerks asking to speak to a supervisor.

Another customer, V.F., who was waiting in the queue, told Mr. Josephs to wait his turn and then raised his tone to include racial slurs.  N.P. witnessed this and approached one of the clerks to complain about V.F.’s behaviour.  The clerk, Mr. Sanagustin, advised that if the altercation escalated into something physical, they would call security but most verbal disputes simply get sorted out by themselves.

Mr. Josephs complained to the team leader of the counter staff and she went to get assistance from the court officer.  However, seconds later, N.P. told Mr. Josephs that the City was not going to do anything and so Mr. Josephs also reported the incident to a security guard.  The security guard confronted V.F. and told him he would have to leave.  Minutes later, a court officer attended and spoke to N.P. and to Mr. Josephs, and then also told V.F. to leave the courthouse, which he did.

Mr. Josephs felt that he had been discriminated against and that the City was responsible.  He therefore decided to file an application against the City of Toronto (as well as the Toronto Police Services Board) with the Human Rights Tribunal of Ontario, alleging discrimination with respect to services, goods and facilities on the basis of race and colour.

The Tribunal Decision

The Tribunal framed the issue as “what duty, if any, does a service provider owe to a customer who has been racially harassed by another customer.”  The Tribunal found that the City of Toronto, as a service provider, had an obligation to take prompt, effectual and proportionate action when it became aware of the harassment.  The response need not be perfect, but simply reasonable in the circumstances.  The Tribunal then went on to make important findings on the conduct of those involved, specifically that all but one of the City staff and security officers at the court office had acted promptly and appropriately, and met the reasonableness standard.

Despite these findings, the Tribunal found that Mr. Sanagustin had discriminated against Mr. Josephs as his response was not reasonable and was inadequate in terms of what is required under the Human Rights Code.

The Tribunal therefore ordered the City to pay $1,500 in damages to Mr. Josephs and to provide human rights training to its court service staff.  In doing so, the Tribunal gave great weight to Mr. Josephs’ brief and incorrect belief that the City was not investigating the racial slur. Because Mr. Josephs thought, for a very brief period of time, that nothing was being done, he was entitled to damages even though this was an erroneous assumption as the team leader was in fact responding promptly and reasonably.

The Divisional Court Appeal

The City of Toronto appealed to the Divisional Court and the Court overturned the Tribunal’s decision and dismissed the Human Rights application against the City, with costs.

In doing so, the Court noted that N.P. made an incorrect assumption when she concluded that the City was not responding and communicated this assumption to Mr. Josephs.  The Tribunal then wrongly focused on Mr. Josephs’ temporary subjective belief that nothing was being done by the City.  In fact, the situation was resolved within 2.5 minutes, and objectively, the City as a whole was not acting in such a way as to foster a poisoned environment.

The Court went on to conclude that the Tribunal applied disproportionate weight to Mr. Sanagustin’s inaction. His comments, although inadequate, had to be viewed in the context of him being a non-supervisory employee while other responsible staff were taking appropriate and immediate action.  It is the response of the corporate staff overall that should be considered as to whether the City properly addressed the situation.

Based on the Tribunal’s own findings that the supervisory staff had acted promptly and reasonably in the situation, corporate responsibility could not reasonably be fixed on the City because of the inconsequential conduct of one employee.

What to take from this Decision

This decision provides important guidance for municipalities, but also to all different types of commercial service providers for best practices in dealing with human rights issues and employee oversight.

Prompt and reasonable investigation of any discrimination within a work environment must take place and the management’s response as a whole must be reasonable in the circumstances.

A service provider should not be held to have breached the Human Rights Code where the actions of one employee may be considered discriminatory when the entity as a whole was reacting properly.

Loss Transfer and the Effect of Side Agreements

By Alon Barda

In St. Paul Fire & Marine Insurance Company v. Intact Insurance (2014 ONSC 6039), a Mississauga transit bus collided with a heavy commercial vehicle insured by Intact. The bus was insured by St. Paul and accident benefits were paid to the injured claimants. In turn, St. Paul sought indemnification from Intact pursuant to the loss transfer provisions in the Insurance Act and Ontario Regulation 664.

The parties agreed that the Intact insured vehicle was 100% at fault for the accident. However, what should have been a relatively straightforward loss transfer matter was complicated by the fact that the City paid benefits to the claimants pursuant to a side agreement with St. Paul. As such, the central issue before the arbitrator was whether the City’s insurer, St. Paul, could seek loss transfer from Intact for benefits that were actually paid for by the City.

The Arbitrator found that Intact was not obligated to indemnify St. Paul as St. Paul had not paid SABs to the claimants and, therefore, had sustained no loss requiring indemnification from Intact. As such, the arbitrator held that St. Paul had not satisfied the requirements to advance a loss transfer claim pursuant to s.275 (1) of the Insurance Act.

The question is what would happen in a reverse scenario wherein Intact paid accident benefits and then sought indemnification from St. Paul, which insured the City’s heavy commercial vehicle?

This was precisely the case in the recently released decisions of Certas Direct Insurance v. ACE INA and City of Toronto (CV-17-568519, unreported, dated February 14, 2018) and Wawanesa Mutual Insurance v. ACE INA Insurance (CV-17-00-5677838, unreported, dated February 14, 2018).

In those cases, a heavy commercial vehicle owned by the City and insured by ACE INA was involved in an accident with vehicles insured by Wawanesa/Certas Direct. Wawanesa and Certas paid accident benefits to their insureds and then claimed loss transfer indemnification from ACE INA for the amounts paid.

ACE INA denied loss transfer in both cases on the grounds that there was “Deductible and Claims Handling Side Agreement”, which provided for a $5 million deductible for claims under its insurance policy with the City. ACE INA argued that the Side Agreement essentially deflected the claims for loss transfer. Nevertheless, in both cases, the arbitrators held that loss transfer applied in accordance with the legislative provisions despite the Side Agreement.

On appeal, Justice Monahan outlined that counsel for the City/ACE INA conceded that all of the preconditions to pursue loss transfer were met (Wawanesa /Certas were first party insurers; ACE INA was a second party insurer and Wawanesa/Certas paid SABs under policies that did not also insure heavy commercial vehicles).

Nevertheless, counsel argued that applying loss transfer to this case would be unfair, since ACE INA would not be permitted to seek loss transfer from a second party insurer if the City paid benefits directly, which is what occurred in St. Paul v. Intact. In effect, ACE INA argued that since ACE INA/the City cannot recover in loss transfer for benefits paid by the City directly, then ACE INA/the City should not be subject to loss transfer when a side agreement is in place.

In his decision, Justice Monahan ultimately held that the problem with ACE INA and the City’s argument is that it is “inconsistent with the plain and obvious meaning of the legislative scheme.”

Further, he highlighted that any restrictions on a first party insurer’s ability to recover in loss transfer solely based on a second party insurer’s Side Agreement is “manifestly unfair”. He stated that the loss transfer provisions apply as between insurers and not insureds, and it falls to the parties of the Side Agreement to address any unfairness through their contract rather than through loss transfer.

This is a well-reasoned decision with a unique fact scenario. We understand that this decision is not being appealed (and would seemingly be upheld in any event, in the opinion of this writer) so it is important for insurer’s and self-insured entities to understand the implications of Side Agreements.

In particular, a Side Agreement similar to that in these cases would preclude the insurer/self-insured entity from seeking loss transfer (due to no SABs being directly paid by the insurer) but would allow for loss transfer indemnification to be sought by a first party insurer.

Settlement: Attention to Details

By Brian Sunohara

The case of Automodular Corporation v. General Motors of Canada Limited, 2018 ONSC 1640 is a good example of the need for parties and their lawyers to pay close attention to the details of a settlement.

General Motors Canada was sued by an assembly company for breach of contract and unjust enrichment.  Shortly prior to trial, a settlement agreement was reached wherein the defendant agreed to pay the plaintiff $7 million, inclusive of interest and costs.

Approximately 10 days after the settlement agreement was reached, the plaintiff’s lawyer indicated that HST needed to be added to the settlement amount.  Due to the high quantum of the settlement, the HST was substantial:  $910,000.

The defendant refused to pay HST.  The plaintiff brought a motion, asking the court to find that the HST payment was an implied term of the settlement.

The motion judge, Justice Dunphy, referred to a Court of Appeal decision, Adamson v. Steed, 2008 ONCA 375, wherein the Court stated that the standard for implying a term into a contract is very high.  Courts will not re-write contracts to reflect changed circumstances or more equitable results.

The plaintiff’s motion was dismissed.  According to Justice Dunphy, the simple fact of the matter is that the plaintiff stipulated the sum it was prepared to accept and did not seek to allocate it in any way.  It was implicitly an “all-in” negotiation.

Justice Dunphy noted that “all-in” settlements are common, everyday occurrences.  He stated that these types of settlements offer a useful way for the parties to put aside disagreements about the value of particular issues in order to achieve a global settlement that each party is able to find acceptable for their own different reasons.

There was no reason for the defendant to go behind the plaintiff’s offer to ask what matters the plaintiff had considered in the offer or how the plaintiff allocated it.

Justice Dunphy concluded by stating that finality and certainty of settlements require parties to consider all of the ramifications of an agreement before committing to it.

Vacuum Return Gone Wrong: The Duty of an Occupier

By Brian Sunohara

On March 27, 2018, the Ontario Court of Appeal released a decision in the case of Tondat v. Hudson’s Bay Company, 2018 ONCA 302.  The case involved a slip and fall accident at a Hudson’s Bay store and provides important lessons for retail stores and other occupiers.


In December 2012, the plaintiff, a Superintendent of Education with the Toronto District School Board, went to a Hudson’s Bay store in Oakville to return a small vacuum cleaner.  It had been raining heavily earlier in the morning.  The rain had turned into a light drizzle by the time the plaintiff arrived at the store.

The plaintiff, who was wearing leather sandals, approached the doors to the store carrying the vacuum in both hands. A customer opened the door for her.  The plaintiff entered the store and stepped onto a black floor mat.  She did not see any debris or water on the floor at the time.

The plaintiff slipped and fell as she stepped from the mat onto a tiled floor.  She fell on her right knee breaking her knee cap.  After falling, she noticed water on the floor.

Damages were agreed to in the amount of $100,000.  A trial on liability proceeded.

Applicable Law

Section 3(1) of the Occupiers’ Liability Act requires an occupier to take reasonable care so that people entering on its premises are reasonably safe.  Perfection is not required.

The plaintiff bears the onus, on a balance of probabilities, to prove that the occupier breached its statutory duty of care.  A plaintiff must be able to identify some act or failure on the part of the occupier which caused the injury complained of.

A retailer must account for the fact that customers will be of differing ages, strengths, and infirmities.

Trial Decision

The trial judge found the maintenance company hired by Hudson’s Bay to be liable.

The Director of Corporate Affairs of the maintenance company was called as a witness.  He had no personal knowledge of the condition of the store on the date of the accident.

There was only one cleaner assigned to clean the 118,348 square foot store.  This employee performed “light duty” on the date of the accident, but the Director of Corporate Affairs did not have any particulars of the actual work done.  He did not know whether the area of the accident had been cleaned.  There were no maintenance sheets or inspection forms.

Moreover, the trial judge noted there was no evidence that the cleaner’s work “had been supervised on that day to ensure that, given the weather conditions on December 2, 2012, patrons seeking to participate in Christmas shopping would not have to contend with conditions that increased the possibility of a slip and fall”.

The trial judge held that there was no system of dealing with water hazards in the area of the accident and that, even if there was such a system, it was not working on the date of the accident.

The defendants called a human factors expert who testified that the floor was not unreasonably dangerous when wet and did not pose a risk of harm to a customer of the store.  The expert determined that the coefficient of friction of the floor, or its slip resistance, exceeded the acceptable standard when the floor was dry or wet.

The plaintiff did not call an expert.  However, the trial judge rejected the evidence of the defence expert, noting that the expert conducted his tests under ideal or controlled conditions.  For example, the expert tested the floor with distilled water instead of rain water.

Further, the expert had no knowledge of the force the plaintiff applied to the floor, the angle at which her foot contacted the floor, the presence or absence of any grease or oil on the floor, and the condition of the sole of the plaintiff’s shoe when she fell.

Lastly, the trial judge did not find any contributory negligence on the plaintiff.  The plaintiff was wearing leather sandals in December.  However, the trial judge stated that the defendants should reasonably have known that customers would be wearing every manner of footwear when they entered the store.

Appeal Decision

The Court of Appeal dismissed the defendants’ appeal.

The defendants accepted the trial judge’s findings that a wet floor caused the plaintiff’s fall and that they lacked an effective inspection or maintenance system.  However, the defendants argued that the trial judge failed to require the plaintiff to prove that the wet floor created an unreasonable risk of harm.

The essence of the defendants’ argument was that the trial judge erred in the assessment of the expert evidence.  The Court of Appeal rejected this argument.  The Court agreed with the trial judge that the defence liability expert conducted his tests in a highly controlled way.  The Court stated that the trial judge reasonably concluded that the expert had not replicated the conditions typical of the entrance to a busy department store on a rainy day.

The Court held that the trial judge reasonably rejected the defence position of the flooring being suitable.  The Court stated there was no merit to the defence argument that the plaintiff was required to call her own expert witness to prove that the floor was inherently slippery or to contradict the evidence on the slip resistance of the flooring.

The Court also agreed that there was no contributory negligence on the plaintiff.


The plaintiff has the onus to prove that some act or failure on the part of the occupier caused an injury.

An occupier has an affirmative duty to take reasonable care to make its premises safe.  An assessment of what constitutes reasonable care is specific to each fact situation.

An occupier should have a sufficient number of properly trained and supervised staff to ensure that the premises are inspected and maintained at suitable intervals.  The frequency of the inspection and maintenance activities may need to be increased depending on the weather conditions and the number of people at the premises.

Contemporaneous records should be kept on what areas of the premises were inspected and the times of the inspections.

Further, an occupier should take into account that people of various ages, strengths, and infirmities may visit its premises.

In a case involving a slip and fall on a wet floor, if a defendant is going to rely on an expert to show that the flooring surface was safe, the expert should try to replicate the condition of the floor at the time of the accident.  The expert should also take into account the mechanics of the plaintiff’s fall.

Following an incident, an occupier should make best efforts to conduct immediate investigations, including inspecting the floor surface, taking photographs, interviewing the injured person and any witnesses, interviewing employees on what inspection and maintenance activities were performed, and preserving surveillance footage, if available.

Notice to Claimants in Priority Disputes

By Kevin Adams

In The Dominion of Canada General Insurance Company v. Unifund Assurance Company, 2018 ONCA 303, Dominion gave notice of a priority dispute to Unifund within the required 90 day period, but it delivered notice to its insured nearly two years after the application was received.

At first instance, Arbitrator Novick found that the timing of the notice given to the insured claimant was inconsequential to the priority dispute between insurers and permitted Dominion to arbitrate the priority issues.

Arbitrator Novick’s decision was appealed to Justice Faieta. In his June 2016 decision, Justice Faieta reversed the decision of Arbitrator Novick and found that “the [90 day] time limits for notice under section 3 of the Regulation also apply to notice provided under section 4 of the Regulation [to the claimant]”, which Dominion failed to satisfy.  Justice Faieta further found that “relief from forfeiture in respect of a failure to comply with the time limits for the delivery of notice” is not available to Dominion.

As such, he concluded that as a consequence “of having failed to comply with section 4 of the Regulation … Dominion’s dispute is barred.”

Justice Faieta’s decision was appealed further. In its decision on March 27, 2018, the Court of Appeal found that Arbitrator Novick’s decision was reasonable and restored it. The Court of Appeal stated:

The prescribed DBI Notice form appears to anticipate that notice will be given to the claimant at or around the same time as it is given to the other insured. There is no practical reason why notice could not be given at the same time. The question however is whether the failure to give such notice in a timely way should preclude the priority claim altogether, or whether it should be up to the arbitrator to determine the consequences of late notice. The arbitrator in this case concluded that, while there is no time limit for notice to be given to a claimant, it will be up to the arbitrator to determine whether the notice required by s. 4 has been given too late to permit the claimant to exercise the participation rights afforded by the regulation. This is a reasonable approach as the arbitrator is well-positioned to safeguard those rights and to address any prejudice.

Here, the insured did receive notice before the arbitration hearing commenced, and did not object to the transfer of the claim. He was therefore not entitled to further participation in the insurers’ priority dispute. There was no prejudice. The arbitrator reasonably concluded that, while the notice was late, the lateness was not an impediment to the insurers’ arbitration of the dispute.

Based on this decision, it appears that as long as notice is given to the insured claimant at some point before the arbitration hearing is commenced and there is no prejudice, there is no consequence to providing late notice of dispute to the insured claimant.

What's Happening at Rogers Partners

  • In December 2017, Jocelyn-Rose Brogan successfully defended a summary judgment motion involving important issues for our client. The case involves the alleged involvement of an unidentified automobile. The co-defendant driver unsuccessfully argued that she had no involvement in the accident.
  • In January 2018, Rebecca Moore and Meryl Rodrigues were defence counsel in a trial in Toronto. Following jury selection, the trial judge heard a motion on whether the plaintiff should be permitted to pursue his claim.  Based on the plaintiff’s representations on the evidence he intended to present, the trial judge determined that the claim could not succeed and dismissed the action.
  • Stephen Ross was a speaker at a Toronto Lawyers Association program in February 2018. The program was called “Summary Judgment Motions Four Years after Hryniak”.  Stephen was assisted by Gemma Healy-Murphy and Emily Vereshchak.
  • Brian Sunohara was quoted in a Law Times article in February 2018 regarding the gatekeeping role of trial judges in determining the admissibility of expert evidence.
  • In February 2018, Stephen Ross and Gemma Healy-Murphy were published in Without Prejudice, a widely-read magazine of the Ontario Insurance Adjusters Association. The article written by Stephen and Gemma was entitled “Partial Settlement Agreements:  Practical Realities”, and addressed Pierringer and Mary Carter Agreements.
  • In April 2018, Stephen Ross will be co-chairing a program by The Advocates’ Society on Licence Appeal Tribunal Advocacy. Kevin Adams will be one of the speakers at this program.
  • We have hired back our articling students, Erin Crochetiere and Emily Vereshchak.  Erin and Emily will be joining the firm as associates following their call to the bar in June.
  • Rogers Partners continues to participate in Casual Fridays in support of charitable causes. We are currently supporting the Centre for Addiction and Mental Health.

From the Desk of Brian Sunohara

Close to 10 years ago, The Honourable Warren Winkler, the former Chief Justice of Ontario, gave a speech on “Professionalism and Proportionality”.  His comments are as applicable now as they were then.

Justice Winkler heartily endorsed a proportionate approach to litigation, while also stressing that the justice system must always be about much more than dollars and cents.  Justice Winkler indicated that, if the adversarial process is left to itself, it often actively discourages proportionality.

Justice Winkler noted that often the most effective cross-examinations and the most persuasive legal submissions are the most straightforward ones.  He stated that some lawyers can accomplish more in two hours of examination for discovery than other lawyers can accomplish in two weeks.  He said that the lawyers who get to the point are those who have the expertise to know what works and what does not.

Justice Winkler also provided the following sage advice:

Expert lawyering includes bringing critical judgment to bear, and giving clear and candid advice about settlement options early on, before limited resources are eaten up by unproductive litigation steps.  Not every case is winnable.  Lawyers need to explain realistically, at the outset, about the prospects of the case.  I am, of course, in no way suggesting that lawyers should not be imaginative about novel cases or strategic about how to settle hopeless losers.  But they need to recognize the difference at the outset and give clear legal advice before needless litigation steps have been taken (and billed to the client).  This is a question of professional training and experience.  It is at the core of legal ethics.

Justice Winkler stressed that lawyers must be better prepared to do what they are trained and paid to do:  provide thoughtful, timely, dispassionate, and proportionate legal advice to clients.

Lawyers would be well-advised to follow Justice Winkler’s advice.  Justice Winkler stated that there is always one more issue that can be raised or one more expert who can be consulted with in an attempt to defeat the other party.  However, he noted that this is not required in every case.  Lawyers must keep the bigger picture in mind and tailor their approach to the type of case and the desired outcome of their clients, within the bounds of their ethical obligations.

Further, far too frequently, lawyers engage in unnecessary skirmishes with other counsel.  Such behaviour lengthens proceedings and increases costs, to the detriment of clients.

The problems outlined by Justice Winkler 10 years ago continue to exist today.  Lawyers have a professional responsibility to do better.  As stated by Justice Winkler, “By committing ourselves to the values of proportionality and professionalism, we can truly say that we are privileged to be part of a vibrant civil justice system”.