Spring 2021 – 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.
Is There a Duty to Warn of Obvious Dangers?
There are dangers in everyday life, but people do not need to be warned of all dangers. For instance, people do not need to be warned that jaywalking in rush hour traffic is dangerous.
In occupiers’ liability claims, defendants should consider whether an alleged danger is an obvious one, in which case it should be argued that no warning about the danger was required.
To determine what qualifies as an obvious danger, a common theme is the use of a common sense approach. For example, what would be the purpose of a warning sign or instruction that would only tell an individual what they already knew from their own observations?
In this article, cases are outlined which address whether there was a duty to warn of dangers in four particular settings: a grocery store, a fitness centre, a park, and a recreational trail.
In Miltenberg v. Metro Inc., 2012 ONSC 1063 (“Miltenberg”), the plaintiff, an elderly lady, alleged that she was injured while attempting to remove the bottom of two cream containers stacked one on top of the other from the top shelf of a freezer at the defendant’s grocery store.
One of the arguments advanced by the plaintiffs was that there ought to have been signs cautioning customers that items may fall from their placement on higher shelves.
The motion judge rejected the plaintiffs’ argument that the defendant had a duty to warn customers that reaching for goods on the top shelf could cause injury. He considered the risk to be obvious, stating:
…customers do not need to be warned that ice cream containers or any item could fall on them if not gripped properly. I accept that individuals are fully capable of figuring out whether they can reach items above head height and whether they can do so in a safe manner…I am not satisfied that a store must have warning signs scattered throughout the store to denote the potential danger to customers if one decided to secure an item from a shelf above one’s height.
The motion judge employed a common sense approach and dismissed the plaintiff’s action on a summary judgment motion.
In Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70, the plaintiff alleged that she was injured during a fitness class when she tripped over a circular dumbbell which had rolled from the original position and into her path of travel.
The fitness instructor directed the class members where to position the dumbbells, but no instruction was provided on how the circular dumbbells should be placed to prevent them from rolling.
One of the arguments advanced by the plaintiff was that QK Fitness had a duty to properly instruct her on the safe use of the round dumbbells, which they failed to do.
In response, QK Fitness argued that the plaintiff made the simple mistake of placing the round dumbbells on their side rather than on their flat end, and that it should be obvious that a round object might roll if placed on its side.
The defendant was successful on its summary judgment motion. The Court of Appeal upheld the motion judge’s dismissal of the action in Hosseinkhani v. QK Fitness Inc., 2019 ONCA 718.
The motion judge found that there was no evidence that the round dumbbell posed an unusual hazard, and that neither the dumbbells, nor the exercises themselves, were inherently hazardous. The motion judge also found that a round dumbbell rolling is an obvious risk. No warning was required.
In Winters v. Haldimand (County), 2015 ONCA 98, a 16 year old boy fell from a tree at a park and was rendered a paraplegic.
The evidence disclosed that generations of teenagers had climbed up the tree and used it as a place to gather. The tree was known by some teenagers as “The Chilling Tree”. However, no municipal witness had ever seen anyone climbing into the “Chilling Tree” before the subject incident, nor had their been any complaints about the tree.
The trial judge found that the County’s monitoring of the tree’s usage was reasonable in the circumstances. While the County did not know about the tree’s usage, they did not fail in any duty to ascertain that usage.
The trial judge also found that there was no evidence which suggested that there was anything inherently dangerous about the “Chilling Tree” beyond the trunk or limb in question. He stated: “[t]rees, by their very nature, things which can be climbed, and therefore fallen from, are potentially harmful”.
The Court of Appeal, in upholding the dismissal of the action, stated:
any danger posed by this tree was an obvious one. If you chose to climb it you could fall and be injured. There is no duty to warn of such an obvious and self-evident danger nor any duty to monitor beyond what the Township is doing at the time of this most unfortunate accident.
Therefore, no warning of the danger of climbing the tree was required since the risk was obvious.
In Karpouzis v. Toronto (City of), 2020 ONSC 143, the plaintiff suffered a serious brain injury while skateboarding at nighttime on a recreational trail. He sued the City of Toronto (the “City”) for negligence.
Pursuant to section 4(3) of the Occupiers’ Liability Act (“OLA”), the plaintiff had willingly assumed the risk associated with skateboarding on a paved recreational trail at night. Therefore, a lower standard of care for an occupier applied pursuant to section 4(1) of the OLA. The City owed a duty to not create a danger with the deliberate intent of doing harm or damage and to not act with reckless disregard.
The plaintiff argued that the City showed reckless disregard in its failure to post signs warning of the hazards of nighttime use on the trail because of inadequate lighting or rapid changes in illumination.
The motion judge disagreed, stating: “…it was not necessary to post signs to warn that at nighttime, an obviously unilluminated path leading into a wooded area would have slow to rapid changes in illumination and inadequate lighting for a pedestrian, cyclist, rollerblader, or skateboarder travelling without a flashlight”.
The motion judge granted summary judgment to the City and dismissed the plaintiff’s claim.
There is risk involved in everyday interactions between individuals and society. While it may be beneficial for occupiers to err on the side of caution when assessing risk and implementing procedures, common sense often dictates what is reasonable in the circumstances.
The law does not require occupiers to warn of obvious dangers. Were that not the case, we would live in a society with warning signs virtually everywhere and with occupiers constantly telling people to “watch out” for every little thing. That would dilute the effect of truly necessary warnings.
As stated in Miltenberg: “[j]ust because a matter becomes litigious and the parties seek redress through the courts, does not mean that any concept of common sense evaporates”.
How Technology Can Outpace Law Reform
By Dana Eichler and Emily Vereshchak
An attack on an individual’s character is not a new concept. People have been defaming and insulting each other for centuries. Obviously, however, the manner and nature in which defamatory statements and comments are made, has developed along with society.
A press conference on the courthouse steps gone sour was once primarily restricted to those who were actually present to hear it. A controversial article in a printed newspaper or magazine had limits in the number of readers and was constricted by geography.
Over the internet, publications are instant, and far-reaching. Online newspapers, social media and blogs create a place for individuals to exercise their Charter rights and express their comments and opinions about any topic (or any person).
The common law develops at a slow pace and the Courts have long been looking for further legislative guidance on these new social circumstances. Defamation claims in the internet age have forced the Courts to adapt the common law in an environment that is subject to constant change. However, they cannot do this alone.
At present, the Libel and Slander Act holds many values that were developed in the 19th century. What is the Ontario Legislature to do about encouraging the right of freedom of expression in the face of vicious online publications, hateful campaigns and cancel culture?
Step in the Law Commission of Ontario (“LCO”). The LCO is a partnership created by the Ontario Ministry of the Attorney General, the Law Foundation of Ontario, the Law Society of Ontario, Osgoode Hall Law School and the Law Deans of Ontario.
The LCO strives to provide independent, balanced and authoritative advice on some of Ontario’s most complex and far-reaching legal policy issues. Their reports are intended to provide practical and problem-solving recommendations, informed by a comprehensive consultation process that engages a broad range of individual experts and institutions. The LCO’s reports have been considered, and often times their recommendations implemented, in legislative, regulatory and policy amendments.
The LCO stepped up to the plate, and released a report in March of 2020 entitled: Defamation Law in the Internet Age. The report is the result of an extensive and detailed four-year project, and provides recommendations on how to best reform defamation law in response to social media and the internet.
The LCO report and details on the consultation process from 2016 to 2020 can be found here.
It has been a year since the release of the LCO’s report, and what a year it has been. Indeed, the term “cancel culture” has become a part of our vocabulary. So, has anything changed? What are the courts doing? What is the legislature doing? How might these recommendations impact claims?
The LCO’s Recommendations
(a) A New Defamation Act
In their report, the LCO makes 39 recommendations in an effort to promote access to justice and to develop a regime that is relevant to defamation claims in the internet age.
One of the LCO’s fundamental recommendations is that the current Libel and Slander Act be repealed and replaced with a new Defamation Act, which would establish the legal framework for resolving defamation complaints in Ontario. The new Defamation Act would also provide for a single tort of defamation, abolishing the distinction between libel (false statements that are published in writing or print) and slander (false statements that are spoken or by way of a gesture).
Eliminating the distinction between these categories of defamation makes sense. The LCO suggests that the distinction is outdated in our technological era and unnecessarily complicates the legal analysis.
In addition, the LCO believes the statutory meaning of “publication” must also be revised. At present, section 2 of the Libel and Slander Act states that defamatory words in a newspaper or in a broadcast shall be deemed to be “published” and constitute “libel”. This definition maintains a difference between libel and slander, and also fails to consider the role of intermediaries in content that is posted online.
The LCO recommends that the new Defamation Act only permit defamation actions against a publisher of the expression complained of. The LCO suggests that “Publisher” should be re-defined to require an intentional act of communicating a specific expression. As such, the publisher of a defamatory expression should not be liable for republication of the expression by a third party unless the publisher intended the republication.
This new approach to publication appears more suitable for defamation in the internet age, where communications may be widely available on a variety of platforms and involve a number of parties that host content without the active intention to communicate the expression. In requiring the publication (and republication) to be intentional for defamation to occur, the LCO imposes necessary boundaries on plaintiffs and complainants from making claims against unnecessary parties and with far-reaching allegations
(b) A Notice and Takedown Regime
One of the most notable recommendations by the LCO is to develop a notice and takedown regime. While intermediaries hosting potentially defamatory content may not be intentionally communicating a specific expression, the LCO acknowledges the role these platforms play and the control they can exert. Further, the regime seeks to combat unidentified “internet trolls” which, as discussed further below, judges have been trying to remedy through the common law.
In an effort to resolve defamation disputes quickly and inexpensively the LCO suggests the following process:
1. The complainant would be required to serve a prescribed notice of complaint on the publisher of an alleged defamatory publication.
- The complainant can do so by notifying the intermediary platform of the defamatory material, and the platform would then be required to pass on the complaint to the publisher.
- Intermediaries would provide a link on their websites for individuals to submit defamation notices.
2. Upon being served with the notice, a publisher would have two days to respond to the notice:
- If there is no response or the publisher cannot be identified, the platform would be required to take down the offending content.
- If there is a response, the complainant would continue to pursue the issue against the publisher directly. No takedown would occur, but the publisher would be required to justify the content.
3. If the complainant wishes to pursue a court action, they must wait 4 weeks before any lawsuit is commenced.
Further, the intermediary platforms that fail in their responsibilities could be held liable for statutory damages.
The LCO’s notice and takedown procedure recognizes that the civil justice system is poorly equipped to handle online defamation claims. It is expensive and simply too slow to address reputational harm that spreads in seconds through the digital world.
(c) An Online Dispute Tribunal
A central concern of the LCO is that the formal court processes is expensive and inaccessible to much of the general public. In this regard, the LCO believes that access to justice can be improved by the creation of a government-run Online Dispute Tribunal to engage in online dispute resolution (“ODR”). ODR would encourage informal resolution of disputes by agreement, where adjudicators would impose tailored responses to each unique circumstance.
In order to facilitate this process, the LCO suggests that intermediaries be required to provide a link to the ODR mechanism on their platforms. Parties would engage with an expert in the field in an attempt to diagnose the issue and negotiate a resolution without legal representation.
Thereafter, the matter could be adjudicated with legal representation (if desired) if initial conciliation efforts failed. Adjudicated decisions would have the same power as a court order, and decisions would be publicly available so that jurisprudence could develop.
(d) Interlocutory “Takedown” Orders
In the event that a matter does proceed through the Court system, the LCO recommends that reforms should be targeted towards preliminary and early action. As such, a new interlocutory “takedown” motion should be more readily available.
Interlocutory injunctions in defamation cases at present are only available in the “rarest and clearest of cases”, as they amount to a restraint of free speech. However, the LCO believes that this test is outdated and too restrictive in the case of interlocutory motions for removal of defamatory online content, due to the anonymous and far-reaching nature of these attacks.
Instead of being reserved for the “rarest and clearest” of cases that would succeed in defamation should they proceed, the LCO recommends a new legal test to obtain an interlocutory takedown order:
1. The plaintiff is required to make out a strong prima facie case of defamation;
2. The reputational harm resulting or likely to result from the expression is sufficiently serious that the public interest in granting the takedown order outweighs the public interest in protecting the expression (similar to balancing test in an anti-SLAPP motion).
According to the LCO, interlocutory takedown orders should be available against the poster, the intermediary platform hosting the expression or any third party having control over the expression, and a full evidentiary record would not be necessary.
What are the Courts Doing?
The Courts have recognized the need to address the unique circumstances of defamation on the internet for years. For some time, judges have been doing their best to adapt defamation principles in the common law with the challenges of the digital world.
In 2011, the Supreme Court of Canada in Crookes v. Newton was faced with the issue of defamatory liability in the context of hyperlinking. The Court highlighted that the internet and its anonymity exponentially increase the potential and ease in which a person’s reputation could be harmed online. Even more so, the Court recognized that social networking services have created circumstances where everyone is a potential “publisher”, which is of particular concern to those unfamiliar with defamation law.
The LCO has notably suggested that the ODR platform could be designed to help educate consumers and businesses who are unfamiliar with defamation law, particularly regarding allegedly defamatory online reviews. Guidance in this regard from an ODR Tribunal would also undoubtedly assist the public and their insurers in managing potential claims at an early stage.
The desire articulated by the Court for law reform appeared more recently in Emeny v. Tomaszerski, wherein Justice Sossin referenced the LCO’s 2017 consultation paper on defamation in the internet age in the context of a dispute arising from comments made on Twitter.
Last year, the Court determined that defendants can still be found liable in defamation even if they have not been identified. In Theralase Technologies Inc. v. Lanter, Justice Myers granted default judgment against several unidentified defendants, who posted defamatory comments online using pseudonyms
In the decision, Justice Myers recognized that internet communications have the ability to cause extraordinary harm, and sought to prevent those who wish to make hurtful statements about others online from hiding behind the cloak of the internet, instead of being forced to justify their actions.
It appears that, had the legislature adopted the LCO’s notice and takedown regime, perhaps plaintiffs such as those in Theralase Technologies Inc. v. Lanter, could have avoided the Court process altogether, and had the defamatory posts taken down quickly, without the need to incur the time and expense of taking the matter to the Court.
In addition, the outdated Libel and Slander Act may have very well played a role in the creation of the new common law tort of on-line harassment. In Caplan v. Atas, Justice Corbett identified that there was a need to recognize the tort of harassment in the context of a cyber-stalking case.
In referring to the LCO’s report, Justice Corbett stated that it would be “better if changes in this area of the law came from the legislature rather than a trial judge”. Ultimately, he determined that the traditional remedies available in defamation law were insufficient to address all aspects of the defendant’s conduct, such that a new tort of harassment was required.
Simply put, the Court could not wait for the legislature to catch up. Presumably, had the notice and take down provisions been in place, there would have been a more immediate and accessible means for the plaintiffs to seek cost-effective redress.
What is the Legislature Doing?
Since the release of the LCO’s report, no legislative changes have been implemented. Susie Lindsay, counsel at the LCO, has confirmed that a series of consultations took place with the government of Ontario last year, but those processes have seemingly stopped without explanation.
While the implications to victims of defamation over the internet cannot be ignored, we must also acknowledge that freedom of discourse on the internet remains fundamentally important to our society. Justice Blair writing for the Court of Appeal stated that it is a challenge to protect reputation without “unduly overriding such free wheeling public discourse”.
In an attempt to maintain this harmony, the LCO notes that the development of Ontario’s 2015 anti-SLAPP (strategic lawsuits against public participation) legislation has contributed to re-balancing protection of reputation with the Charter protected value of freedom of expression.
Anti-SLAPP provisions were created to mitigate lawsuits against individuals or organizations as an indirect tool to limit freedom of expression and deter parties from participating in public affairs. The LCO has maintained that this legislation serves a necessary purpose to alleviate the common circumstance where powerful individuals and entities take advantage of defamation law as a tool to silence free speech.
At common law, where a plaintiff establishes defamation, reputational harm is presumed and the plaintiff does not need to lead evidence of general damages. As part of the test on an anti-SLAPP motion, the Supreme Court has determined that the plaintiff must still establish the existence of some harm, and that the harm was caused by the defendant’s expression (otherwise the plaintiff’s action will be dismissed at an early stage).
As the LCO emphasizes that a serious harm threshold should not be adopted under the new Defamation Act, it will be interesting to see how this aspect of the test for anti-SLAPP motions will be interpreted in the future should the LCO’s recommendations be implemented.
On two recent and related anti-SLAPP motions, Justice Diamond upheld the plaintiffs’ obligation to demonstrate some harm beyond the presumption of general damages. In Levant v. Demelle and Rebel News v. Al Jazeera Media, Justice Diamond dismissed the plaintiffs’ defamation actions, stating among his reasons that there was no evidence of harm to the plaintiffs.
Justice Diamond found that apart from the presumption of general damages, the plaintiffs led no evidence of any particular or specific economic harm or damage to their reputation as a result of the defamatory article, and that the plaintiffs’ obligation to lead such evidence was even more necessary, given that the defendants led evidence that the plaintiffs’ reputations were poor to begin with.
While the LCO recommends that anti-SLAPP proceedings remain in an effort to address silencing tactics by commonly economically powerful plaintiffs, such motions still require the time and expense of engaging in the formal Court process. While the facts in Caplan v. Atas and Rebel News v. Al Jazeera Media and Theralase Technologies Inc. v. Lanter may ultimately have necessitated Court action, perhaps the takedown measures or ODR could have resolved the issues short of the time and expense to the participants and their insurers.
Where is Ontario Headed with Defamation in the Internet Age?
It is hoped that the LCO’s extensive efforts, through a four-year consultation process resulting in mostly a “plug and play” practical solution for the Legislature, are not lost.
Hopefully, the Ontario Government will not only recognize, but take steps to accelerate this process and provide not only the courts with some assistance and guidance in navigating defamation cases in the internet age, but also provide individuals with direct access to justice and save all stakeholders the time and expense which necessarily comes with a full court action.
As noted, actions alleging defamation are generally followed by an anti-SLAPP motion and see significant costs incurred by all parties involved in the early stages of those proceedings.
On another note, the LCO’s current project list includes an interesting multi-year project looking at artificial intelligence (AI), automated decision making (ADM) and algorithms on access to justice, human rights and due process. As well, there is an initiative looking at consumer protection in the digital marketplace to identify law reform options related to so-called “click to consent” or “terms of service” contracts. These, and many other interesting initiatives and past projects, can be viewed on the LCO website.
 See Hill v. Church of Scientology of Toronto,  2 SCR 1130.
 R.S.O. 1990,c.L.12.
 2011 SCC 47 at para 38
 Ibid at para 38
 2019 ONSC 3298
 2020 ONSC 205
 See also https://www.rogerspartners.com/the-new-tort-of-harassment/
 2021 ONSC 670
 Ibid at para 173
 Berrick Gold Corp. v. Lopehandia (2004) 23 C.C.L.T. (3d) 273 (Ont. C.A) at paragraph 32.
 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22.
 2021 ONSC 1074
 2021 ONSC 1035
Amendments to Occupiers’ Liability Act: Reasonable Excuse and Prejudice
The Ontario Occupiers’ Liability Act was amended effective January 29, 2021. Plaintiffs must now comply with a 60 day notice requirement for occupiers’ liability claims involving accidents caused by snow or ice.
Written notice has to be provided to an occupier of the premises or to an independent contractor employed by the occupier to remove snow or ice. The notice has to specify the date, time, and location of the accident.
After an occupier receives notice, it has to serve a copy of the notice on any other occupiers of the premises and on any winter maintenance contractors. Similarly, if a contractor receives notice, it has to serve a copy of the notice on the occupier that employed the contractor.
All notices need to be served personally or by registered mail.
A failure to give notice is not a bar to an action in the case of death. Further, a failure to give notice or the insufficiency of notice is not a bar if a judge finds that there is reasonable excuse and that the defendant is not prejudiced.
The notice requirement will likely be interpreted in a similar manner to claims under the Municipal Act, 2001 and the City of Toronto Act, 2006. If late notice is provided, the onus will be on the plaintiff to show that there is reasonable excuse and that the defendant is not prejudiced.
In Crinson v. Toronto (City), 2010 ONCA 44, the Court of Appeal stated that the words “reasonable excuse” should be given their plain and ordinary meaning and that the court should consider all the circumstances of the particular case in determining whether the plaintiff has established reasonable excuse.
The plaintiff in Crinson suffered a serious injury requiring a prolonged period of rehabilitation during which he was deeply worried about his job and his ability to provide for his family. The Court of Appeal stated that, given the plaintiff’s mental state, it was hardly surprising that he did not turn his mind to the notice requirement within the required time. Therefore, the plaintiff had a reasonable excuse.
In Seif v. Toronto (City), 2015 ONCA 321, a majority of the Court of Appeal agreed with Associate Chief Justice Hoy (as she then was), dissenting in part, that the plaintiff had a reasonable excuse for providing late notice.
The plaintiff did not learn until three months after the accident that her injuries were serious and that she would suffer pain and limitations for the rest of her life. Justice Hoy stated that this was a reasonable excuse for giving late notice.
Justice Hoy further indicated that a lack of awareness of the notice requirement does not constitute a reasonable excuse on its own. However, ignorance of the notice requirement can add to another extenuating circumstance to create a reasonable excuse.
Justice Hoy provided another example of a reasonable excuse: “[o]ne need only imagine a parent, injured on a City sidewalk, whose child is in hospital undergoing a lengthy course of treatment for a life-threatening illness. The child’s circumstances, rather than the injury sustained by the parent, would provide the reasonable excuse”.
In Hennes v. City of Brampton, 2014 ONSC 1116, the court dismissed the plaintiff’s claim due to lack of timely notice. The plaintiff gave notice 18 months after a slip and fall on snow and ice.
The plaintiff had knee surgery within months of the accident, and it should have been apparent within around five months of the accident that he had a claim for damages. Justice Donohue stated that, even though the plaintiff did not know of the requirement to give notice, he did not seek legal advice for over a year after a claim was apparent.
In Argue v. Tay (Township), 2013 ONCA 247, the Court of Appeal agreed with the decision of the motion judge, Justice DiTomaso, that the plaintiff did not have a reasonable excuse for providing notice close to two years after the accident in question.
Justice DiTomaso found that, on the date of the accident, the plaintiff knew she had been injured, and she was both physically and mentally able to notify the defendant of the accident and/or consult with counsel.
In summary, the plaintiff’s physical and mental state, and the severity or lack of severity of the plaintiff’s injuries, are relevant factors in examining whether the plaintiff has a reasonable excuse for providing late notice. Ignorance of the law is not a reasonable excuse on its own, but it can be considered within the context of other reasons for providing late notice.
On the issue of prejudice, the Court of Appeal in Seif stated that the onus is on the plaintiff to establish that the defendant will not be prejudiced in its defence as a result of the delay.
The majority indicated that the wording of the notice requirement in the City of Toronto Act, 2006 (which is similar to the wording of the amendments to the Occupiers’ Liability Act) does not use language which creates a presumption of prejudice resulting from a plaintiff’s failure to give timely notice. However, the majority stated that there can be an “inherent probability of prejudice”.
A plaintiff can address the inherent probability of prejudice with evidence showing other sources of information about the accident’s circumstances. In Seif, the Court of Appeal provided the following examples of how a plaintiff could address prejudice:
- A plaintiff might adduce evidence that the defendant had taken steps to investigate the scene in spite of not having notice from the plaintiff.
- There were timely photographs taken of the scene.
- A named witness to the accident has been identified.
In Patrick v. The Corporation of the Municipality of Southwest Middlesex et al., 2017 ONSC 17, Justice Leach stated that, in accidents involving snow or ice, notice given even a few days later realistically may not have provided the defendant with any opportunity to examine and document conditions as they existed at the time of the accident.
The length of the delay is one factor to consider in examining prejudice: Azzeh v. Legendre, 2017 ONCA 385.
In Kanner v. The Corporation of the City of Hamilton, 2017 ONSC 6795, Justice Braid noted that, with the passage of time and the absence of notice, a defendant may be unable to properly investigate and respond. Documents may be destroyed due to retention policies. Further, without proper notice, it may not be possible to obtain timely evidence which would otherwise have been available from employees and potential witnesses.
In Hennes, Justice Donohue held that a delay of 18 months in providing notice prejudiced the defendant from being able to investigate potential witnesses.
In Argue, the Court of Appeal agreed with the motion judge that the plaintiff failed to establish that the defendant was not prejudiced by late notice. Among other things, the motion judge found that the defendant lost the opportunity to interview witnesses while their memories were fresh.
In Langille v. Toronto (City), 2010 ONSC 443, Justice Frank stated that “[t]he question is not how much prejudice the [defendant] has suffered but whether it has suffered prejudice”.
Justice Frank accepted the evidence of the defendant that, had timely notice been given, full investigations would have been conducted. Her Honour held that “…these lost opportunities together with the diminished recall of those involved amount to prejudice”.
Overall, the issue of prejudice is a fact-based inquiry. The key thing to examine is whether the defendant’s ability to investigate and learn of the circumstances of the accident has been inhibited due to late notice.
The COVID Legal Landscape
By Athina Ionita, Student-at-Law
The COVID-19 pandemic has brought with it a wave of legal claims. The Ontario government has attempted to protect those subject to this wave of litigation and return some stability to the litigation landscape with the passing of Supporting Ontario’s Recovery Act, 2020, (“the Act”) which came into force on November 20, 2020.
Section 2 of the Act prohibits causes of action against “any person as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020 as a direct or indirect result of an act or omission of the person” if the person acted, or made a good faith effort to act, in accordance with public health guidance and laws relating to COVID-19, and if the act or omission does not constitute gross negligence.
The term “good faith effort” is defined in section 1 of the Act and “includes an honest effort, whether or not that effort is reasonable”.
The legislation is retroactive and therefore applies to actions commenced prior to the statute’s coming into force date (subsections 2(5) and 2(6)).
There are a number of exceptions under the Act, one of which is that there is no protection for “gross negligence”. Further, certain causes of action arising from employment are exempt from protection (subsection 4(2)).
In sum, the legislation protects entities from legal actions based on COVID-19 infections where the entities made good faith efforts to comply with public health guidelines and were not grossly negligent.
“Gross negligence” is not defined in the Act, but there is legal authority on what it may constitute. The standard of “gross negligence”, in the context of municipal liability, has been interpreted by the Supreme Court of Canada to mean “very great negligence”.
The Supreme Court has also described “gross negligence” as being conduct in which there is a very marked departure from the conduct of a reasonable person.
The Ontario Court of Appeal has held that gross negligence does not require proof of misconduct that is wilful, wanton or flagrant. The Court held that, to a great extent, the determination of gross negligence depends of the facts of each case and is interpreted through the prism of common sense.
Although the term “gross negligence” has defied precise definition, it is difficult to prove. There has to be more than a mere breach of duty. The breach must be of high magnitude.
Public Health Guidance
The legislation protects those who “acted or made a good faith effort to act in accordance with” public health guidance. Under section 1 of Act, “public health guidance” is defined as meaning “advice, recommendations, directives, guidance or instructions given or made in respect of public health, regardless of the form or manner of their communication” by a number of listed actors, including the Chief Medical Officer of Health, federal public health officials, ministries of the Ontario provincial government, and others.
To date, there has been a wide range of directives and guidance issued with respect to COVID including Minister’s orders, Ministry Directives, class orders issued by public health units and more, which would likely fall under the definition of public health guidance outlined in the Act.
Further, many of these documents have undergone several changes, and past versions of these documents are not always easily retrievable. Notably, section 2(2) says that subsection (1) of the Act applies “regardless of any conflict or inconsistency in the public health guidance or laws applicable to the person”.
Similar Legislation Across Canada
Other provinces have enacted similar liability protection legislation. The analogous British Columbia law arises from the COVID-19 Related Measures Actand the COVID-19 (Limits on Actions and Proceedings) Regulation, which are largely similar to the Ontario Act.
Like the Ontario legislation, the British Columbia legislation does not protect acts of “gross negligence”. Further, protection is only available where the person in question, “was engaging in the act in accordance with all applicable emergency and public health guidance”, or “had a reasonable belief that the person was engaging in the act in accordance with all applicable emergency and public health guidance.”
In New Brunswick, the waiver of liability arises from the Mandatory Order under the Emergency Measures Act. The order provides protection to those providing essential service, absent gross negligence.
In Alberta, although long-term care groups lobbied the government for similar legislation to provide protection against COVID-19 lawsuits, such legislation in that province has yet to be enacted.
Effect of Legislation
To date, there are no cases citing the Ontario, British Columbia or New Brunswick legislation. Therefore, there remain some unknowns with respect to the extent of protection the legislation will provide. 
In Ontario, the legislation has not completely deterred new COVID-related lawsuits. For example, publicly available documents and media reports show that a number of class actions have been launched since the legislation came into force.
That being said, we anticipate that it will be difficult for plaintiffs to succeed in COVID-related lawsuits. The legislative debates in respect of the Act are instructive. The Attorney General of Ontario, Doug Downey, noted that “[f]ront-line workers are under an incredible amount of stress. Each day, they serve our communities while doing their best to minimize the spread of the virus. They do this for the safety of the people they serve, their families, their loved ones and their neighbours”.
The Attorney General stated that, with the benefit of hindsight, some measures taken by businesses have not been perfect, but that does not mean that such businesses should be held legally liable. He indicated:
Maybe you didn’t follow the right public health guidance or you misunderstood it. But in a lawsuit, because your facility was permitted to stay open and you made an honest effort to follow the rules, an informed effort—you tried to follow them and you believed that you were in compliance—you will be immune from civil liability unless a court determines that you were grossly negligent. This should not be taken to mean that Ontarians can stand by and disregard the rules or make them up on their own. They have to make a good-faith effort to follow the rules.
The Attorney General also commented on conflicting and confusing information provided to organizations, stating:
…especially during the early days of the pandemic, it wasn’t always easy to narrow down the rules that applied in one community or another amid the sometimes seemingly conflicting reports. An organization might receive one set of public health guidance from a municipality and a different set from a public health unit or a regulator. They might even conflict on certain points. That’s why the legislation provides that the immunity applies even where such a conflict exists.
The comments of the Attorney General demonstrate that, in the trying and unusual times of COVID-19, the legislation is designed to protect those who make an honest effort to follow public health guidance.
Although the rollout of vaccines may signal a near end of the pandemic, COVID litigation is expected to continue for the time being. Judicial scrutiny of the Act may curb this trend.
It seems probable that many lawsuits will not survive, absent extreme circumstances. COVID-19 has presented a number of unique challenges, and most organizations have adapted. They have made a “good faith effort” to comply with public health guidance and laws, which is what the law requires. Under the Act, a “good faith effort” includes “an honest effort, whether or not that effort is reasonable”.
Organizations are not expected to be perfect. Human nature would suggest that honest mistakes have been and will be made – they are almost impossible to prevent. Even if organizations have been negligent, that does not translate to legal liability. The Ontario government has given broad protection from liability. It will be difficult to demonstrate that the acts or omissions of an organization rise to the high level of “gross negligence”.
Businesses and individuals should continue to stay informed with respect to new or updated public health guidance, paying particular attention to those documents specific to their industry.
Our firm continues to monitor new developments with respect to Supporting Ontario’s Recovery Act.
 Supporting Ontario’s Recovery Act, 2020, S.O. 2020, c. 26, Sched. 1.
 Holland v. Toronto (City), (1926),  S.C.R. 242 (S.C.C.).
 McCulloch v. Murray,  SCR 141
 Crinson v. Toronto (City), 2010 ONCA 44 (Ont. C.A.).
 Sutherland v. North York (City of), 1997 CanLII 736 (ON CA), citing Occhino v. Winnipeg (City), 1988 CanLII 5647 (MB CA).
 COVID-19 Related Measures Act, SBC 2020, c 8.
 B.C. Reg. 204/2020.
 Subsections 4 (a) and (b) of the regulation
 Emergency Measures Act, R.S.N.B. 2011, c.147.
 Section 25.
 As of March 26, 2021.
 Hansard, Legislative Assembly of Ontario, October 22, 2020.
Costs at the LAT – Revisiting One of the More Controversial Changes
By Alon Barda
Background and Legislative Basis for Costs
In January 2018, I co-authored a paper that looked at the LAT as it approached two years at that time. The paper outlined that one of the most significant differences from FSCO to the LAT is the costs that may be awarded.
At FSCO, the arbitrator could award “all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.” This included various types of expenses, such as filing fees, legal fees, and disbursements, which were specifically set out in a Schedule attached to the Regulation.
The legislative authority now to award costs is within the Common Rules of Practice & Procedure applicable to LAT proceedings and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”).
Section 17.1(1) of the SPPA states that a Tribunal “may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding.” However, there are limitations.
Section 17.1(2) of the SPPA states that the Tribunal shall not make an order to pay costs unless the following apply: “a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and b) the tribunal has made rules under subsection (4).”
As such, while the Tribunal may order a party to pay all or part of another party’s costs in a proceeding, the cost award is statutorily limited to circumstances wherein the conduct of a party has been unreasonable, frivolous or vexatious, or a party has acted in bad faith.
The section in the LAT Rules for costs mirror that in the SPPA. Section 19.1 of the LAT Rules states that, “where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.”
Section 19.5 and 19.6 were added to the LAT Rules when they were updated on October 2, 2017 (the previous rules were known as the Licence Appeal Tribunal Rules of Practice and Procedure).
Section 19.5 sets out the factors that will be considered by the Tribunal in awarding costs, such as the seriousness of the misconduct, prejudice to other parties and the potential impact an order for costs would have on individuals accessing the Tribunal system.
Furthermore, while the SPPA allows an order for a party to pay “all or part of another party’s costs in a proceeding”, s.19.6 of the LAT Rules outlines that the amount of costs shall not exceed $1000 for each full day of attendance at a motion, case conference or hearing.
As such, while the LAT has jurisdiction to allow for the payment of the other party’s costs under very limited circumstances, the LAT exercised its jurisdiction pursuant to ss.17.1(4) to limit even the amount of costs recoverable.
A review of the cost awards during the first two years highlighted that costs were indeed restricted to s.19.1 of the LAT Rules and s.17.1 of the SPPA and, in the rare circumstances where costs were awarded, it was an exceedingly low amount.
Fast forward a few years and a recent decision of the LAT has once again revisited the issue of costs and when they may be awarded.
Recent Decision on Costs
In Corpuz v Aviva General Insurance, 2021 ONLAT 19-014198/AABS, the matter proceeded to a written hearing to determine entitlement to various medical benefits.
The adjudicator found that there was no entitlement to the benefits sought. The adjudicator then turned to the issue of costs. She outlined that Rule 19 of the Common Rules of Practice and Procedure sets out that in awarding costs the Tribunal shall consider all relevant factors, including:
- the seriousness of the misconduct;
- whether the conduct was in breach of a direction or order issued by the Tribunal;
- whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process;
- prejudice to other parties; and
- the potential impact an order for costs would have on individuals accessing the Tribunal system.
The insurer sought the full $1,000 allowable on the grounds that the applicant acted in bad faith and vexatiously. Specifically, the insurer argued that the claimant misled the Tribunal in misrepresenting the procedural history.
The adjudicator found that the submissions made by the applicant regarding notification of insurer examinations were inaccurate. Nevertheless, the Tribunal found that the applicant’s submissions were not made with the deliberate intent to mislead and deceive the Tribunal.
However, when the Tribunal viewed the applicant’s submissions together with evidence that was tendered, it found that the applicant’s conduct rose to the threshold of vexatious and bad faith warranting costs awarded under Rule 19. Specifically, the Tribunal found that the applicant redacted and thereby concealed details in an email that contradicted his submission and misrepresented the evidence as a result.
The Tribunal also found that aspects of a treatment plan were falsely attributed to the applicant on the grounds that it was improbable that the applicant made remarks about the accident and his injuries to the doctor that were identical to remarks attributed to a different insured person four years prior.
While the Tribunal was satisfied that a cost award was warranted, it was not prepared to award the full amount. The Tribunal held: “A costs award must balance the need to discourage unreasonable, frivolous, vexatious or bad faith conduct in litigation against the real-world impact of costs penalties on those accessing the Tribunal system. On balance, considering all factors set out in Rule 19, I find an award in the amount of $100.00 to be appropriate in the circumstances.”
While the Tribunal held that “misrepresenting evidence in a Tribunal proceeding is serious and should be strongly discouraged”, it still did not award the full amount of costs allowable. The conduct in this case was certainly concerning and it does not appear a $100 cost award will act as much of a deterrent.
The LAT cannot award costs in the same manner that FSCO once did and it appears that is not changing any time soon. At the very least, it is the opinion of this writer that if the conducts so warrants, the LAT should utilize the limits available to deter such future conduct. An award at only 10% of the maximum is unlikely to do so.
Prompt Disclosure of Partial Settlement Agreements
The court’s decision in Poirier v. Logan, 2021 ONSC 1633, demonstrates the importance of promptly disclosing partial settlement agreements that change the adversarial orientation of the proceeding.
The plaintiff sued several parties. In October 2019, the plaintiff and one of the defendants entered into a settlement agreement wherein the action would be dismissed against that defendant and that defendant would provide a sworn affidavit. This affidavit contained evidence that assisted the plaintiff’s case against the co-defendants.
Six months later, the plaintiff’s lawyer advised the co-defendants’ lawyers of the partial settlement.
Justice Perell noted that when a plaintiff settles with one or more co-defendants, and the settlement changes the adversarial orientation of the proceeding, such as when the settling co-defendant agrees to cooperate in the plaintiff’s prosecution of the case, the plaintiff must immediately disclose to the non-settling defendants: (a) that there is a settlement, and (b) the terms of the settlement that change the adversarial orientation of the proceeding.
A failure to do so is an abuse of process for which the only remedy is a dismissal of the proceeding. The fact that a non-settling defendant is not prejudiced is irrelevant.
Not all settlement agreements require immediate disclosure. Only settlement agreements that fundamentally alter the relationship among the parties, such that there has been an entire change in the landscape of the litigation, must be immediately disclosed.
Justice Perell also indicated that a settlement agreement by one litigant to cooperate with another litigant does not necessarily fundamentally alter the litigation landscape or the adversarial orientation of the litigation. The facts of each case need to be examined.
Nevertheless, Justice Perell stated that, as a practice point, there is little reason to not immediately disclose a settlement agreement. It is better to be safe than sorry.
In the case at bar, Justice Perell noted that the settling defendant was not a fringe player. He was a potentially culpable party who was being let out of the action. He agreed to assist the plaintiff in the case against the co-defendants by providing the affidavit.
The defendants had previously agreed to “hold their crossfire” on the crossclaims until later in the litigation. The fact that the settling defendant decided to cooperate with the plaintiff was a fundamental change in the litigation landscape.
Therefore, Justice Perell held that the settlement agreement had to be immediately disclosed. Since the plaintiff did not do so, the action was dismissed.
What's Happening at Rogers Partners
- Rogers Partners is proud to support the future of the legal profession by volunteering for the University of Toronto Faculty of Law Upper Year Moot. Brian Sunohara, Rebecca Moore, Andrew Yolles, and Meryl Rodrigues judged this year’s moot and were very impressed by the excellent advocacy demonstrated by the students. The future is bright!
- In January 2021, the Canadian Defence Lawyers Hearsay newsletter published an article by Gemma Healy-Murphy on The Scope of Re-Examination on Discovery.
- The Lawyer’s Daily featured Matthew Umbrio in January 2021 in a two-part series on recent decisions on striking jury notices.
- The Advocates’ Society’s Tricks of the Trade conference in January 2021 was once again a hit! Stephen Ross co-chaired the event and was involved in several panel discussions. Brian Sunohara presented on “Lessons on Trial Practice”.
- One of our articling students, Angeline Bellehumeur, successfully argued her first motion in February 2021. The court agreed that a settlement between the plaintiff and our client should be enforced. Congratulations Angeline!
- The Lawyer’s Daily published an article by Colleen Mackeigan in March 2021. Colleen discussed documentary production requirements in loss transfer claims.
- In March 2021, Andrew Yolles successfully argued a motion to adjourn a trial. The court determined that the trial needed to be adjourned due to the late service of an expert report by one of the plaintiffs. Gemma Healy-Murphy and Athina Ionita assisted with the motion. Well done team!
- Erin Crochetière won a duty to defend application in March 2021. Our client was an additional insured on a policy. The court completely accepted Erin’s arguments that the responding insurer has to pay the full defence costs of our client and substantial indemnity costs of the application. Great work Erin!
- Two of our statutory accident benefits experts will be involved in The Advocates’ Society’s LAT Advocacy conference in April 2021. Kevin Adams is co-chairing the event, and Alon Barda is presenting on “Top Cases and Recent Trends at the LAT”.
- Rogers Partners is pleased to support Starlight Children’s Foundation Canada, an organization dedicated to brightening the lives of seriously ill children and their families.
- We’re hiring a mid-level associate with experience handling statutory accident benefits claims. See our Careers page for more details.
- Visit the RP Blog for regular updates on the law and news on our firm.
- Follow us on Twitter.
From the Desk of Andrew Yolles
Hoping for Normality Post-COVID
It has been a strange and challenging year since the start of the COVID-19 pandemic. We have seen many rapid changes to the justice system and the practice of law in that past year, to cope with the new, socially-distanced reality in which we all find ourselves.
Some of these changes have been very positive, despite the unfortunate catalyst for them. We have moved to an almost entirely electronic civil justice system, with most service, document exchange, and court filings now being done digitally. I certainly will not miss cumbersome and slow-moving paper briefs and documents.
Many of the changes are a mix of positive and negative aspects. Virtual examinations and hearings, rarely done before COVID-19, now account for the vast majority of proceedings. While these are certainly more convenient for everyone involved, the formality and gravity of the proceeding, which tends to instill in witnesses (and counsel) a respect for the truth-finding process, can sometimes be lost.
As an extreme example, I recently participated in a virtual examination in which a deponent connected to the videoconference from a phone mounted to the dashboard of his transport truck, which he was obviously driving.
Although he claimed to be prepared to proceed with the examination, it was horrifying watching him try to address the videoconference while also watching the road (we quickly terminated the examination). It was also clear that the significance of this litigation event was lost on this would-be deponent in a way that it would not have been had he been compelled to attend for it at a reporting centre.
The most significant change for many has been working from home full-time. This, too, is mix of positives and negatives. I certainly do not miss the subway, and the time I would have spent commuting I can now spend either catching up on work, or with my family. Not having to put a suit on everyday is a plus as well.
However, all of this has come at the expense of the office culture and the invaluable connections with colleagues that used to occur regularly throughout the day. There is no virtual substitute for that incredible resource.
We have learned a lot through the crucible of the past year. We have learned how to practice law, and continue the pursuit of justice, in an entirely digital space. Many of these lessons will serve us well even after the pandemic is over and life returns to some semblance of normality. But I, for one, look forward to returning to at least some of the old ways.