Summer 2021 – Newsletter

By Meryl Rodrigues

In the recently released decision by the Court of Appeal in Moore v. 7595611 Canada Corp., 2021 ONCA 459, the Court upheld a jury award for damages for loss of care, guidance and companionship (among other heads of damages) awarded to the parents of an adult child killed in a fire.

The award for loss of care, guidance and companionship in this case represents a significant departure from the previous ceiling on such damages, as articulated in the Court of Appeal’s prior decision in To v. Toronto Board of Education, (2001), 204 DLR (4th) 704 (Ont CA).

Background & Trial Outcome

The action in Moore arose from a 2013 fire that broke out in a basement apartment owned by the appellants (an individual and his numbered company), in which the respondents’ only child, Alisha, the tenant of the apartment, was sleeping. Alisha was trapped in the blaze, the only exit engulfed in smoke and flames.

Although rescued by firefighters, she suffered significant burns over half her body. After a few days in hospital, during which Alisha underwent multiple cardiac arrests and a scan confirming no brain activity, Alisha’s parents made the decision to remove her from life support.

Following the trial of the action, the jury found that the appellants were responsible for Alisha’s death on three bases: the appellants’ failure to properly prepare, approve and implement a safety plan for the building; their failure to maintain operational smoke alarms; and their failure to provide sufficient exits for the premises. Accordingly, the jury awarded damages as follows:

• Loss of care, guidance and companionship: $250,000 to each respondent
• Mental distress: $250,000 to each respondent
• Future care costs – respondent father: $174,800
• Future care costs – respondent mother: $151,200

Appeal

The unrepresented individual appellant, on his own behalf and on behalf of the numbered corporation, advanced various grounds of appeal.

First, the appellants contended that the jury was improperly selected due to a pre-trial irregularity in which 41 prospective jurors were inadvertently released from the jury pool.

The Court of Appeal declined to give effect to that ground of appeal, noting that section 44(1) of the Juries Act provides that any omission to observe a provision of the Act respecting selection of jurors is “not a ground for impeaching or quashing a verdict or judgment in act action.” The Court noted that the inadvertent release of the 41 prospective jurors was, at most, a minor irregularity that resulted in no prejudice to the appellants.

Second, the appellants argued that section 76 of the Fire Protection and Prevention Act, 1997 precluded the parents’ action, as it was not proven that the fire started from anything other than an accidental source.

The Court of Appeal dismissed this ground as well. While the Court acknowledged that the cause of the fire remained undetermined at trial, the jury’s findings of negligence against the appellants did not relate to the source of the fire, but to the appellants’ negligent acts that left Alisha trapped, leading to her injuries and death.

Third, the appellants argued that the jury verdict was unreasonable and that the circumstances surrounding the fire and death were suspicious.

The Court of Appeal again gave no effect to this argument, given the three grounds upon which the jury held the appellants responsible for Alisha’s death. The Court noted that there was a clear factual foundation for those findings, including the appellants guilty pleas in relation to numerous offences under the Fire Code.

Finally, the appellants contended that the various damages awards were too high. However, the Court rejected this ground of appeal as well.

In relation to the damages awarded for mental distress, the Court held that the claim was rooted in more than just the grief experienced by the respondents. Rather, the damages reflected compensation for psychological injuries not only due to Alisha’s death, but also due to the horrific circumstances surrounding it, witnessed by the respondents. The Court noted that the claim was supported by the parents’ trial testimony and, further, clear expert evidence as to their mental distress suffered as a result of their daughter’s death.

In relation to the damages awarded for future care costs, again the Court held that the awards were predicated on expert evidence at trial and, indeed, were lower that the amounts that had been suggested by the experts in relation to both parents’ claims for future care.

Finally, and most significantly, the Court considered the damages awarded for loss of care, guidance and companionship to each of the respondent parents, given the Court’s previous decision in To, which established that $100,000 adjusted for inflation might represent the “high end of an accepted range of guidance, care and companionship damages.”[1] On the basis of the $100,000 from To, adjusting for inflation to the date of Alisha’s death in 2013, the amount would be just under $150,000.

In addressing To, the Court noted that the language in To does not definitively state that $100,000 (adjusted for inflation) is the high end of acceptable damages for loss of care, guidance and companionship. Rather, the language is simply that the figure “might be viewed” as being the high end of an accepted range.

Further, the Court noted that there is no legislative cap on such damages (unlike in some other provinces), and also no judge-made cap for this form of non-pecuniary damages. Accordingly, the Court endorsed the view that there should be a case-by-case approach to the quantification of damages for loss of care, guidance and companionship, which will necessary result in fluctuating awards.

The Court emphasized that the threshold for intervention in the quantum of a jury’s damages award is “extremely high”.[2] In the context of non-pecuniary damages, an appellate court should only intervene with a jury’s assessment where it “shock the conscience of the court.”[3] Per To, the jury’s assessment “must be so inordinately high (or low) as to constitute a wholly erroneous estimate of the guidance, care and companionship loss”.[4]

Given the factual backdrop in Moore, although the jury award was undoubtedly high, the Court held that it did not meet the high threshold to warrant intervention and, accordingly, there was no basis to interfere with the award of $250,000 for loss of care, guidance and companionship to each of the respondents.

Take-Aways

As alluded to above, the award for damages for loss of care, guidance and companionship in Moore marks a significant departure from the previous upper limit for such damages, as guided by To and relied upon for the last 20 years. Indeed, the Court in Moore leaves open the possibility that there is no such upper limit.

Counsel should be mindful of this decision, as plaintiffs’ lawyers may more vigorously pursue such Family Law Act claims, and it is likely prudent for defence counsel to more vigorously defend such claims, given the potential exposure.

[1] To, at para 37.

[2] As stated in Vokes Estate v. Palmer, 2012 ONCA 510, at para 12.

[3] Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, at para 163.

[4] To, at para 31.

By Emily Vereshchak

In Sigurdson et al v. Norboard Inc. et al, 2021 ONSC 5193, the Ontario Superior Court of Justice declined to recognize a duty of care between the employer of a deceased individual and his family members. The Court stated that negligence alone should not open the gates to liability to those who could not have been reasonably foreseen as suffering harm.

Facts

The plaintiffs were the mother, father and sister of a man who died while working in a remote forested area for the defendant, Norbord Inc. The defendant, Resolute FP Canada Inc., was alleged to have held an overlapping sustainable forest license with Norbord in the location where the deceased died.

As part of Norbord’s internal policies, employees were required to check-in with Norbord using a GPS system at several times during the day. However, Norbord failed to notice that the deceased did not check in as required. As the deceased did not return home and could not be contacted, the deceased’s father eventually drove into the forest himself, and found that his son who had already died alone. The cause of death was determined to be hypothermia.

The claim sought damages in negligence and under the Family Law Act (”FLA”) in addition to punitive damages. The negligence claims arose from Norbord’s failure to respond to the check-in, failure to dispatch proper search and rescue teams, and mental injury that was suffered by the family.

The defendants brought a motion to strike the negligence claims and the punitive damages claims arguing that there is no recognized duty of care owed by them to the plaintiffs, and that no novel duty of care should be recognized in the circumstances. The defendants did not seek to strike the FLA claims on the motion.

Issues

The main issue before the Court was whether the negligence claims should be permitted to proceed. The Court also examined whether the motion should be dismissed for delay as the claim had not advanced following the close of pleadings, and whether the Statement of Claim in its entirety ought to be struck as it contained evidence, case law and argument.

Analysis

Madam Justice Nieckarz acknowledged that there was no direct relationship between the plaintiffs and the defendants, and that there is no recognized duty of care that has been established governing the relationship between family members of an employee and an employer. Further, she noted that there is no recognized duty of care governing the relationship between an occupier of land where an employee works and that employee’s family members.

Justice Nieckarz applied the Anns/Cooper analysis to determine whether a new duty of care should be recognized. The test involves analyzing whether the harm that occurred was a reasonably foreseeable consequence of the defendant’s act, and involves a proximity analysis between the plaintiffs and defendants.

Justice Nieckarz noted that a duty of care owed to a family member or rescuer who witnesses the aftermath of an accident has been recognized by the law in lesser circumstances. While simply witnessing the death of a family member does not itself give rise to a duty of care, Justice Nieckarz concluded that there was sufficient proximity between the deceased’s father and the defendants to conclude that the defendants did not satisfy their onus of demonstrating that there was no reasonable prospect of success for the deceased’s father to establish a duty of care.

Justice Nieckarz went on to state that if she was incorrect in her conclusion, she would find that a duty of care should be recognized in light of the deceased’s father’s position as responder and rescuer, as it was reasonably foreseeable that because the defendants failed to send a rescue team, that someone else would respond in the circumstances such that there was sufficient locational proximity to give rise to a duty of care.

In regards to the mother’s and sister’s negligence claims however, Justice Nieckarz stated that simply because they are family members of someone who suffered harm as a result of negligence, this was not sufficient to ground a duty of care. The relationships were not close enough to give rise to an obligation by the defendants to be mindful of the deceased’s mother’s and sister’s interests.

Further, even if sufficient proximity were established for these claims, public policy considerations militated against recognizing a duty of care in these circumstances. Justice Nieckarz agreed with the defendants that to find otherwise would lead to issues of indeterminate liability, and particularly, claimant indeterminacy.  

It was evident that if Norbord owed a duty of care to every sufficiently close family member of its employees, it would lose meaningful control over the class of potential plaintiffs, and it would be impossible for Norbord to know who it owed a duty to. Accordingly, Justice Nieckarz declined to recognize a novel duty of care in the circumstances of the mother’s and sister’s claims.

Conclusion

The motion was granted in part. No duty of care was owed by the defendants to the deceased’s mother and sister, as it was plain and obvious that they had no reasonable prospect of success. The duty of care owed by the defendants to the deceased’s father was a triable issue and was allowed to proceed.

Justice Nieckarz declined to exercise her discretion to dismiss the motion for delay in light of the global pandemic, and in consideration that the parties were awaiting a hearing of a WSIB application that was made by the defendants regarding the plaintiffs’ right to sue for damages pursuant to s.61 of the FLA.  

Finally, as the Statement of Claim was problematic and could not be salvaged, Justice Nieckarz struck the claim in its entirety with leave to amend to plead the father’s negligence claims and the FLA claims.

Although Justice Nieckarz recognized that the family had undoubtedly suffered, the potential for liability in these circumstances would be unwieldy. While negligence may be evident, the proximity analysis requires a close and direct relationship such that it would be just and fair having regard to that relationship to impose a duty of care in law.

As such, despite a family’s request for answers and accountability, the public policy implications may be far too great to recognize a novel duty of care.

By Brian Sunohara

Every litigator needs to be familiar with the rule in Browne and Dunn. In Goruk v. Greater Barrie Chamber of Commerce, 2021 ONSC 4046, the court went over the principles of this rule.

Overview of the Rule

The rule in Browne and Dunn requires a cross-examining lawyer to confront a witness with matters of substance on which the lawyer intends to call contradictory evidence.

The witness does not need to be confronted with inconsequential details. Moreover, the witness does not need to be confronted where the confrontation would be pointless (for instance, where the answers of the witness are a foregone conclusion).

The rule in Browne and Dunn is a rule of fairness.  The main considerations are:

• Fairness to the witness whose credibility is attacked. The witness is alerted that the cross-examiner intends to impeach his or her evidence and is given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted.
• Fairness to the parties whose witness is impeached. The party calling the witness has notice of the precise aspects of the testimony of the witness that are being contested so that the party can decide whether or what confirmatory evidence to call.
• Fairness to the trier of fact. Without the rule, the trier of fact could be deprived of necessary evidence, thereby compromising the accuracy of the verdict.

Overall, the rule in Browne and Dunn addresses the proper functioning of the adversarial process.

Remedy for Violating the Rule

A trial judge has broad discretion to determine an appropriate remedy for a violation of the rule in Browne and Dunn. The rule should not be rigidly applied.

The most extreme remedy is for the court to draw an inference that the witness’ evidence on a point is true and to prohibit the opposing party from calling any contradictory evidence on the point.

However, Justice Boswell noted that this remedy is generally not favoured by appellate courts. Often, the appropriate remedy is to permit the witness to be recalled to attempt to explain the contradictory evidence.

Application to Case

The case in issue involved a wrongful dismissal action. The defendant alleged that it had just cause to terminate the plaintiff due to purported financial irregularities.

In the examination-in-chief of the defendant’s first witness, the plaintiff’s lawyer objected to the witness testifying on financial irregularities because almost none of the irregularities were put to the plaintiff in cross-examination.

Justice Boswell rejected the plaintiff’s request to prohibit the defendant from introducing evidence of the alleged financial irregularities. His Honour stated that this would defeat the fact-finding function of the trial process. His Honour noted that the aspiration of every trial is to arrive at the truth of a matter and, thereby, do justice between the parties.

Further, Justice Boswell indicated that the plaintiff had the benefit of the pleadings in which the defendant particularized its allegations against her. She also had the benefit of examinations for discovery during which her counsel was able to extensively question the defendant.

Justice Boswell stated that the plaintiff “did not step into the witness box unencumbered by an understanding of the defendant’s case against her”.  The plaintiff and her counsel knew very well the live issues in the case and the defendant’s position on each of the issues.

Moreover, through the plaintiff’s examination-in-chief and cross-examination, the plaintiff had the opportunity to provide evidence on each of the pleaded allegations supporting the assertion of just cause.

Justice Boswell permitted the defendant to present its defence as it saw fit.  This was subject to the possibility of the plaintiff being permitted to be recalled to give further evidence, following further argument on the issue.

Summary

If defence counsel intends to call contradictory evidence to impeach a witness, defence counsel should put that evidence to the witness in cross-examination. This is a matter of fairness. It gives the witness an opportunity to explain why the contradictory evidence should be rejected. It also permits plaintiff’s counsel to decide whether to call evidence confirming the evidence of the witness.

However, in civil actions, plaintiffs usually have detailed particulars of the defendant’s position through the pleadings and examinations for discovery. Therefore, plaintiffs are generally not taken by surprise. This militates against a finding of a breach of the rule in Browne and Dunn.

Should there be a breach of the rule in Browne and Dunn, the most common remedy is to permit the witness whose credibility is impeached to be recalled. It is very rare for the court to prohibit defence counsel from introducing the contradictory evidence as this would undermine the truth-seeking function of the trial.

As stated by Justice Boswell, “[w]hen only one side is effectively heard from, the usual checks and balances of the adversarial system break down. The prospect of the court getting it wrong and settling on a result that is neither just nor fair increases significantly”.

By Gemma Healy-Murphy

The decision of Master Graham in Jajjo and Danno v. Singh, 2021 ONSC 4269, addressed the conduct of defence medical examinations and the expectation of experts that plaintiffs attending an assessment sign a consent or other form prior to commencing the assessment.

I will briefly discuss Master Graham’s decision and then provide practical tips for counsel to address when retaining experts and communicating details regarding defence medical examination to plaintiffs.

The Decision

Facts

In Jajjo, the expert asked the plaintiffs to sign consent forms.  The plaintiffs refused to do so without consulting with their counsel, who had previously advised them not to sign any documents.  The plaintiffs tried, but failed, to reach their counsel from the expert’s office.

As a result, and although there was conflicting evidence on what transpired thereafter, the Court accepted that the expert would not proceed with the examinations. The expert proceeded to send defence counsel invoices for cancellation fees.  The defendant brought a motion to recover the expert’s cancellation fees, as well as those of the interpreter that was also in attendance for the examinations.

Reasoning

Master Graham did not find defence counsel’s submissions persuasive that, based on the plaintiff’s sworn affidavit, he had previously signed consent forms at medical assessments in the accident benefits context, and that the plaintiffs should therefore not have been surprised that they were asked to a sign a consent form at the defence medical examination.

Rather, His Honour appears to have accepted the plaintiffs’ concerns that this was a defence medical examination at the behest of the defendant, and so was unlike any assessment in the accident benefits context. Master Graham noted that the defendant should not simply assume that the plaintiffs, on arriving at the defence medical appointment, will sign a document prepared by the opposing expert that they have never seen before.   

Further, and although the consent form was quite brief, Master Graham highlighted some nuances therein that may have been unclear to the plaintiffs. Master Graham stated that it was reasonable for the plaintiffs to seek the guidance of their lawyer before signing the form.

Master Graham indicated that, if the defence expert was going to require the plaintiffs to sign documents prior to conducting the examinations, it was incumbent on defence counsel to give the plaintiffs an opportunity to review the documents with their counsel. His Honour therefore refused to visit the cancellation fees on the plaintiffs.

As a result, the defendant’s motion for payment of the cancellation fees was dismissed.

The Takeaway

Looking forward, and when confirming expert retainers, defence counsel would be well advised to obtain copies of consents or other forms that a defence expert may require a plaintiff to execute at a defence medical examination. It would be a best practice to make those forms available for review by the plaintiffs and their counsel well before the date of any defence medical examination.

When dealing with self-represented plaintiffs, it is particularly important that counsel ensure to give sufficient time in order to allow the self-represented litigant to seek independent legal advice as necessary.

That way, if there is going to be a dispute over a consent form, it can be addressed well prior to the examination.  If no objection is made, and if the plaintiff refuses to sign the form when he or she attends the examination, then the plaintiff will most likely be responsible for any cancellation fee.

If parties cannot reach agreement as to the form and content of a consent or other form to be signed by a plaintiff in order to facilitate a defence medical examination, the parties should seek guidance from the Court to resolve the issue.

By Alon Barda and Natalia Sheikh

The Ontario Court of Appeal’s decision in Rooplal v. Foder, 2021 ONCA 357 addresses the time period that applies in unidentified motorist claims pursuant to s. 265 of the Insurance Act[1] and Uninsured Automobile Coverage, R.R.O. 1990, Reg. 676 (“Regulation 676”).

Facts

The plaintiff was injured while riding a Toronto Transit Commission (“TTC”) bus that was cut off by an unidentified driver. The plaintiff brought a claim against the unidentified motorist, the TTC, the bus driver, and her own insurer pursuant to a family protection coverage endorsement (“OPCF 44R”).  

Following examinations for discovery, the plaintiff’s personal insurer amended its statement of defence and crossclaim to plead that it did not provide coverage for the claim and also that any such claim should be brought against the TTC’s insurer.

Thereafter, the plaintiff sought to add Toronto Transit Commission Insurance (“TTC Insurance”) to the action seeking a declaration that, at the time of the accident, the plaintiff was an occupant of the TTC insured vehicle and an insured under the TTC’s insurance policy. The plaintiff further sought a declaration that TTC Insurance must indemnify her for all damages caused by the unidentified motorist up to the policy limits.

TTC Insurance opposed the motion on the grounds that the claim was statute-barred pursuant to s.4 of the Limitations Act, 2002 (the “Limitations Act”).[2]

The Underlying Decisions

In the decision on the motion, the motion judge permitted the claim against TTC Insurance to proceed on the basis that the two-year limitation period for commencing a claim set out in s. 4 of the Limitations Act had not expired. The Court reasoned that, under the criteria set out in s. 5 of the Limitations Act, the plaintiff had not yet discovered her claim against the insurer.

The motion judge held that the limitation period for the indemnification claim against TTC Insurance did not begin to run until “the day after [the plaintiff] made an indemnification claim which [TTC Insurance] failed to satisfy. Since [the plaintiff] made her motion to add [TTC Insurance] as a defendant before making a claim that [TTC Insurance] failed to satisfy, the limitation period ha[d] not expired.”

The motion judge’s decision was upheld by the Divisional Court.

Decision of the Court of Appeal

Issue

The narrow issue before the Court of Appeal was whether the plaintiff’s claim against TTC Insurance was statute- barred pursuant to ss.4 and 5 of the Limitations Act.

Position of the Parties

The plaintiff submitted that the limitation period did not begin to run until the insurer denied her claim for indemnification under the contract of insurance.

Alternatively, she argued that, even if the limitation period began to run when she knew or ought to have known there was a tort claim against the unidentified motorist, she did not have evidence of how the accident happened until the TTC bus driver was examined for discovery.

Since she served the motion to add the TTC less than two years thereafter, she argued that she was not out of time.

TTC submitted that the limitation period began to run when the plaintiff knew or ought to have know the unidentified motorist was at fault, which TTC argued happened when the plaintiff received the police report.

TTC further argued that, if the plaintiff’s position is accepted, it would lead to an absurd result. In this regard, TTC submitted that a finding that the limitation period only begins to run when the plaintiff makes an indemnification demand could result in the possibility of the plaintiff potentially waiting indefinitely before bringing a claim against an insurer.

Decision

The Court of Appeal first highlighted s.5(1)(a)(iii) of the Limitations Act, which states that a claim is discovered “only when a plaintiff learns that their injury was caused by the acts or omissions of the person against whom the claim is made.”

The Court cited the decision of Markel Insurance Company of Canada v. ING Insurance Company of Canada,[3] which dealt with the limitation period in loss transfer matters. The court noted that the Markel decision, as well as the decision of Schmitz v. Lombard General Insurance Company of Canada,[4] stands for the proposition that the plaintiff suffers a loss when the insurer fails to satisfy its legal obligation under the policy.

Specifically, in Markel, the Court of Appeal stated that once a request for indemnification has been sent, “all the facts are present to trigger the legal obligation on the part of the second party insurer to indemnify the first party insurer for the loss.”

In its reasoning, the Court of Appeal in the case at bar noted that s.5 of the Limitations Act, states that, unless the Act provides otherwise, a proceeding must be commenced within two years of when the “claim is discovered”, that is, “when the plaintiff knows, or ought to have known they have suffered loss, injury or damage caused by or contributed to by the acts or omissions “of the person against whom the claim is made (emphasis in original) and that it is appropriate to commence a proceeding.”

The Court further noted the importance of isolating the wrongful act of each particular defendant. In this regard, the Court stated that it is not enough that the plaintiff has “suffered some loss from some act or omission.”

The Court further explained that the  “discovery requires that the person with the claim “know that the ‘injury, loss or damage had occurred’ (s. 5(1)(a)(i)), that it was caused or contributed to by the act or omission (the breach of contract) (s. 5(i)(a)(ii)), and that the act or omission was that of the defendant (s. 5(1)(a)(iii))” (emphasis in original).”[5]

Addressing the facts of this case, the Court stated that there is a distinction to be drawn between the plaintiff’s knowledge of the act or omission of the unidentified motorist for which damages in tort is sought and the act or omission of the insurer for which indemnification pursuant to the policy of insurance is sought.

Accordingly, the Court found that the plaintiff only “discovered” her claim against TTC Insurance when she knew or ought to have known that “TTC Insurancedid or omitted to do something that caused her loss or damage.” It was only then, the Court held, that the two year limitation period set out in s.4 of the Limitations Act began to run. The Court then pointed out that, in this case, there was no evidence that the plaintiff made any demand for indemnification to commence the limitation period.

In terms of TTC’s argument that a finding that the limitation period only begins to run on a request for indemnification may result in the plaintiff delaying the bringing of the claim, the Court highlights that there are requirements set out in s.8(1) of the Schedule contained in Regulation 676 that must also be considered. This includes that “no person is entitled to bring an action to recover an amount provided for under the contract, as required by subsection 265 (1) of the [Insurance Act] unless the requirements of this Schedule with respect to the claim have been complied with.”

Accordingly, while a person may choose not to commence a claim against the insurer, the insurer must be provided with (a) a statement setting out the details of the accident including whether it was caused by an unidentified motorist and what damages were suffered within 30 days or as soon as practicable (s. 3), and (b) written notice of the claim against the insurer and the circumstances thereof within 30 days or as soon as practicable (s. 6).

The Court then stated that the statutory scheme does indeed provide some safeguards against the concerns raised by TTC Insurance. In this regard, the Court stated that “an insurer faced with a potential unidentified motorist claim may begin the limitation period by refusing to indemnify a s. 265 claimant after receipt of timely notice, as required by the regulation. In this manner, the insurer retains control of the limitation period.”[6] The Court noted that it was unclear from the record whether the claimant fulfilled the notice obligations as that issue was not before the court.

Applying the above reasoning to the facts of the case, the Court held that the plaintiff discovered her claim against TTC Insurance when she knew or ought to have known that TTC Insurance did or omitted to do something that caused her loss or damage. The Court stated that the act or omission was the failure to indemnify the plaintiff for the damage caused by the unidentified driver as required by the policy of insurance.

Since there was no evidence that the plaintiff had made a demand for indemnification from TTC Insurance, the limitation period against TTC Insurance had not yet expired and the appeal was dismissed.

The Takeaway

Based on this decision, the limitation period for a claim for unidentified motorist coverage pursuant to s.265 of the Insurance Act commences when the insurer fails to indemnify the plaintiff for the damage caused by the unidentified driver as required by the policy of insurance.

As argued by TTC Insurance, this raises the possible issue of the plaintiff waiting to seek indemnification from the insurer. Nevertheless, as set out by the Court of Appeal, a prudent insurer faced with a potential unidentified motorist claim, and one that intends to deny the claim, should ensure the limitation clock starts ticking by refusing to indemnify the s. 265 claimant after receipt of timely notice, as required by the regulation.

This will provide certainty to the insurer as to the limitation period and avoid a potentially lengthy waiting period for a claim to commence.

[1] R.S.O. 1990, c. I.8.

[2] S.O. 2002, c. 24, Sch. B.

[3] 2012 ONCA 218, 109 O.R. (3d) 652.

[4] 2014 ONCA 88, 118 O.R. (3d) 694, leave to appeal refused, [2014] S.C.C.A. No. 143.

[5] Citing the decision of Strath C.J.O in Apotex Inc. v. Nordion (Canada) Inc., 2019 ONCA 23, 431 D.L.R. (4th) 262, at para 86.

[6] Citing Hoegg J.A. of the Newfoundland and Labrador Court of Appeal in Tucker v. Unknown Person, 2015 NLCA 21, 365 Nfld. & P.E.I.R. 307, leave to appeal refused, [2015] S.C.C.A. No. 250, at paras. 22-23.

By Alon Barda

There has been much confusion regarding the applicability of s.7 of the Licence Appeal Tribunal Act[1] (the “LAT Act”) in recent years. This was finally put to rest with the recent Divisional Court decision of Fratarcangeli v. North Blenheim Mutual Insurance Company[2]wherein it was held that the Licence Appeal Tribunal (the “LAT”) has jurisdiction under s. 7 of the LAT Act to extend the two-year time limit period for filing appeals set out in s. 56 of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “SABS”).

Background

In A.F. v. North Blenheim Mutual Insurance Company (“A.F. v. North Blenheim”),[3] the Executive Chair of the LAT reconsidered two decisions where the Tribunal applied the two-year limitation period under s.56 of the SABS and dismissed the claims as statute barred.

The Executive Chair on her own initiative ultimately held that it was a significant error of law for the Tribunal to not consider s.7 of the LAT Act and sent both matters back for a hearing on the application of s.7, which states as follows:

Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal … if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

(b) give the directions that it considers proper as a result of extending the time.

In her decision, the Executive Chair highlighted that the Tribunal, in determining whether to grant an extension of time under s.7 of the LAT Act, generally weighs the following four factors to determine whether the case is one that warrants an extension to be granted:

1. The existence of a bona fide intention to appeal within the appeal period;

2. The length of the delay;

3. Prejudice to the other party; and,

4. The merits of the appeal.

Cases that followed the A.F. v. North Blenheim decision showed that the Tribunal was both applying s.7 and even doing so to relieve against missed limitation periods.[4] However, in 18-001196 vs. Certas Home and Auto Insurance Company[5] the application of s.7 was placed into a state of flux as Arbitrator Neilson found that the Tribunal did not have jurisdiction under s.7 of the LAT Act to extend the limitation periods.

Decisions were mixed thereafter and three cases ultimately made it to the Divisional Court on the issue of the application of s.7. The Licence Appeal Tribunal was an intervener on the appeal.

The Divisional Court Decision

In Fratarcangeli v. North Blenheim Mutual Insurance Company,[6]the Court first identified the two areas of s.7 that gave rise to the issue over the application of s.7 the LAT Act. These parts are outlined in bold:

“despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or under any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying the extension…(emphasis added).”

The Court first addressed the argument as to whether s.7 has no application to disputes concerning the denial of benefits under the SABS because the limitation period is fixed under a regulation (i.e. the SABS) and not “by or under any Act” as specifically set out in s. 7.

The Court highlighted that the wording in s.7 on its face is broad and unlimited and the wording supports the conclusion that, by the use of the phrase “by or under any Act”, the Legislature intended in s. 7 to include “not only a limitation fixed by an Act but a limitation fixed under an Act,” such as the SABS.

Accordingly, the Court concluded that when s. 7 refers to a time fixed by or under an Act, it is contemplating a time limit fixed by regulation. Thus, the Court held that “the two-year limitation fixed by s. 56 of the SABS is a time limit fixed under an Act and is subject to the LAT’s power to extend in s. 7.”

The second issue for the Court to determine was whether s.7 does not apply because an application to the LAT for the resolution of a dispute under the SABS is not a “notice requiring a hearing” within the meaning of s. 7.

In this regard, the insurer argued that the Insurance Act and the SABS refer to an “application” to resolve disputes between insurers and insureds with respect to an applicant’s entitlement to accident benefits and that an “application” cannot be ascribed the meaning of a “notice of hearing” as set out in s.7.

The Court stated that the underlying purpose of an application to the LAT under s. 56 of the SABS is, ultimately, to have a hearing before the LAT on the disputed issues and “the mere fact that there may be limited or infrequent circumstances where the LAT may not grant a hearing or where a case can be dismissed without a hearing does not undermine the fundamental point.”

Accordingly, further to the above reasoning, the Court concluded that the LAT has jurisdiction under s. 7 of the LAT Act to extend the limitation in s. 56 of the SABS.

Takeaway

The decision of Fratarcangeli v. North Blenheim Mutual Insurance Company confirms that the LAT does indeed have jurisdiction under s.7 of the LAT to extend the two-year time limit for filing appeals set out in s. 56 of the SABS. This is a significant development, particularly since this was not available at FSCO.

Moving forward, in the event a limitation period is missed, it will be important for insurers to now consider the likelihood of the LAT granting an extension of time, which includes analyzing whether (1) there was a bona fide intention to appeal within the time limit; (2) the length of the delay; (3) the prejudice to the other party; and (4) the merits of the appeal.[7]

As set out by the Court, none of the factors necessarily has priority and all four factors will be taken into account when the Tribunal makes a determination.

[1] 1999, S.O. 1999, c. 12, Sched. G.

[2] 2021 ONSC 3997 (Div. Ct)

[3] 2017 CanLII 87546 (ON LAT).

[4] See, for example, D.A. v. Aviva Insurance Canada 2018 CanLII 39443 (ON LAT) and A.O. v. Unifund Assurance Company 2019 CanLII 58501 (ON LAT). 

[5] 2016 CanLII 153125 (ON LAT).

[6] 2021 ONSC 3997.

[7] As set out in Manuel v. Ontario (Registrar, Motor Vehicle Dealers Act), 2012 ONSC 1492 (Div. Ct.).

By Tom Macmillan

The Supreme Court of Canada recently released its decision in Sherman Estate v Donovan, 2021 SCC 25, on the question of whether to grant a request from the estates’ trustees to seal documentation relating to the will probate process.

There is little doubt that public interest in the decision relates more to the high-profile nature of the underlying deaths of Honey and Barry Sherman, than to interest in the courts’ position on sealing orders.   That being said, despite the technical and narrow issue considered, the ruling provides interesting insight into the Supreme Court’s attitude toward privacy as a public interest in its own right, which is worthy of protection in certain circumstances.

Background

The deaths of the Shermans became a national fixation for a period of time, owing in part to the wealth and profile of the couple, and in part to the fact that their deaths were deemed suspicious by the authorities.  The trustees of the estates sought a sealing order as part of the probate process, asking that the names and contact information for the individuals named in the wills be kept from the public. 

The argument in support of the sealing order was that, if the documentation became public, the individuals named in the wills would a) be subject to intense media focus due to the public fascination with the Sherman story; and b) have their lives put in danger, presumably from the same unknown individuals potentially responsible for the deaths of Honey and Barry Sherman.

The Decisions

The Ontario Superior Court of Justice granted the sealing order. The decision was appealed to the Court of Appeal by a journalist.  That appeal was successful in overturning the sealing order, setting the stage for the recent ruling from the Supreme Court. 

The Supreme Court ruled unanimously to deny the appeal, meaning that the Court of Appeal’s striking of the sealing order stands, and the probate documentation can be seen by the public.

Balancing Public Interests

At issue in this case, and indeed in any instance where a sealing order is considered, is the principle of open court proceedings.  Put briefly, there is a strong public interest in ensuring that court processes and disputes are public.  The open and public nature of all manner of court proceedings is integral for ensuring the public’s trust in the justice system, as the public must be permitted to observe justice being done in order to be satisfied that it is indeed being done. 

The issue of court openness has been expounded upon countless times by the courts, but it is not absolute.  There have been moments in our judicial history when competing public interests rub up against this principle.  The September 11, 2001 attacks in the United States, for example, saw here in Canada the creation of special in-camera proceedings on cases involving matters of national security.

Interestingly, the Supreme Court in Sherman suggested that there is now an increased need to consider the protection of personal privacy as a matter of public interest in certain circumstances.  Specifically, when the dissemination of information that risks impacting a person’s dignity is at stake, the courts should consider the protection of that information to be of public interest. The Court stated:

…personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person’s dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest and a court can make an exception to the open court principle if it is at serious risk.

Even if the information at issue relates to a person’s dignity, the Court stressed that this is not sufficient grounds alone to order a sealing order.  The courts should consider first whether this information has already been disseminated widely in the public domain.  Furthermore, the Court reiterated that a sealing order should only be granted where it is necessary to prevent the identified risk to a person’s dignity, and that the benefits of doing so outweigh the negative effects to the openness principle.

Despite outlining the principles above, the Court rejected the estate trustees’ appeal.  First, the Court found that the information at issue was not core biographical detail, the release of which amounted to a threat to the dignity of those involved.  Second, the Court rejected as speculation the suggestion that the safety of the individuals named in the will were in jeopardy.

Impact on Privacy Law

While dismissing the appeal, the Supreme Court in Sherman nevertheless stressed the importance of safeguarding the privacy rights of individuals.  It is under rare circumstances that the Court will place limits on the open court principle, and so the Sherman ruling should not be underestimated in terms of its message regarding the role of the courts in safeguarding core elements of personal privacy.

This ruling is only the most recent of a number of judicial decisions at all levels recognizing that we now live in a time where personal privacy is at increased risk of exposure and abuse.  The courts have recently recognized the new torts of harassment (Caplan v. Atlas, 2021 ONSC 670), and of publicly placing a person in a false light (Yenovkian v. Gulian, 2019 ONSC 7279).  Both of these cases involved the dissemination of unflattering information by a tortfeasor. 

Importantly, in both cases, the courts indicated that a person may be found liable for these torts even if the tortfeasor’s behaviour falls short of being defamatory.  In Yenovkian, for example, the court noted that individuals have a privacy right to control the way they present themselves to the world. Publicly disclosing certain personal details about a person without their consent can itself cause actionable harm.

As noted above, however, not all unwanted personal private information meets the standard of being in the public’s interest to protect.  Most personal information is of private concern only, even if it is embarrassing or uncomfortable.  It is when personal information touches on a core aspect of a person’s life, that it can be said to relate to a person’s dignity.  Some examples of such information provided by the Court in Sherman include:

• potentially stigmatizing medical diagnoses;
• sexual orientation; or
• potentially stigmatizing work history.

This is important commentary, particularly as the courts grapple with the advent of the new torts referenced above.

Interplay with New Torts

On the strict issue of sealing orders, Sherman likely hurts plaintiffs in online harassment or defamation cases.  In those cases, at issue is the fact that allegedly harmful  information has been published or disseminated widely.  The Court will consider that in this context a sealing order would be unlikely to address the perceived harm to a plaintiff’s dignity.

On the other hand, in a more general sense, the Sherman ruling provides tacit approval to the direction that lower courts have been moving, which is toward greater protection of personal privacy in an online world.  The Court in Sherman makes clear that it is in the public interest to protect an individual’s right to decide whether to share core personal details about themselves. 

This is welcome news for individuals seeking to enforce damages for alleged infringements on this right, and something for lower courts to consider when ruling on these new privacy-related actions.

• Exciting times at Rogers Partners: Alon Barda, Rebecca Moore, and Andrew Yolles have joined the partnership of the firm! Alon, Rebecca, and Andrew started with the firm as articling students. Over the years, their contributions have been invaluable. We couldn’t be happier that they’re now partners!
• In May 2021, Brian Sunohara and Erin Crochetière successfully defended a mistrial motion arising from a trial that commenced in February 2020 and is scheduled to continue this fall. The court rejected the plaintiff’s arguments that the passage of time and the illness of plaintiff’s counsel during the first part of the trial were valid reasons for a mistrial.
• Alon Barda was successful in a priority dispute arbitration in May 2021. It was a hard-fought dispute over which of multiple insurers was responsible to pay statutory accident benefits to the claimant.
• In June 2021, Brian Sunohara won a summary judgment motion in an occupiers’ liability claim involving an accident at a shopping mall. The plaintiff’s claim was dismissed.
• Suganiya Sivabalan achieved an excellent result for our client in a motion that was heard in July 2021. The court waived the requirement for our client to pay a fairly large quantum of settlement funds due to the plaintiff’s failure to provide a release.
• We’re pleased to welcome three new associates to the firm: Kayley Richardson, Natalia Sheikh, and Suganiya Sivabalan. We hope that we can all meet in person soon, instead of over Zoom!
• Athina Ionita and Chris MacDonald were called to the Bar in July and have returned to the firm as associates. Congratulations Athina and Chris!
• Our new articling students recently started with the firm and have settled in nicely. Welcome to Michael Kryworuk, Annie Levanaj, and Pip Swartz!
• Our Equity, Diversity, and Inclusion Committee has been hard at work. We recently recognized Asian Heritage Month, LGBTQ+ Pride Month, National Indigenous History Month, and National Acadian Day. Thank you to our committee members: Alon Barda, Dana Eichler, Athina Ionita, Lorraine Kelly, Tom Macmillan, Goretti Perri, Natalia Sheikh, Sharon Lam Yiu, and Andrew Yolles.
• Brian Sunohara, Rebecca Moore, Meryl Rodrigues, Erin Crochetière, and Emily Vereshchak have written a chapter on oral examinations for a new Civil Procedure text. The text is a joint project between the University of Windsor Faculty of Law and the Canadian Legal Information Institute (CanLII). Keep an eye out for the text, which is scheduled to go live on the CanLII website this September. It will be a free resource available to all!
• Visit the RP Blog for updates on our firm and the law.

Equity, Diversity and Inclusion at Rogers Partners LLP

Equity, diversity and inclusion have always been incredibly important to me as a person of Romanian heritage. Further, growing up in a diverse Toronto east-end neighbourhood has entrenched my appreciation for the value and positive contributions that diversity can bring to a community.  

This is why it is especially saddening to hear of news, locally and from across the country, of terrible acts of racism and discrimination. The uncovering of the unmarked Indigenous burial grounds and the attack of a Muslim family in London, Ontario are two recent examples of such tragic events.

These stories highlight the importance of recognizing and appreciating the voices and stories of marginalized groups and individuals. Such appreciation begins with dialogue about these issues, which foster a sense of appreciation for diversity and inclusion.

The legal profession plays an important part in this conversation and in efforts to promote and uphold values of diversity in our society.

Our firm has formed our very own Equity, Diversity, and Inclusion (EDI) Committee. Our committee’s goal is to take active steps to promote EDI within the direction, management, and day-to-day operation of the firm, and to ensure adherence to the firm’s principles and strict policy of diversity and non-discrimination.

The EDI Committee works to identify and prevent barriers and issues that may be faced by underrepresented individuals and groups within the firm, in order to maintain a work environment that is as welcoming and as inclusive as possible to everyone.

Our committee has recognized thus far a number of initiatives acknowledging and celebrating our country’s diversity. We were proud to recognize Asian Heritage Month this past May, LGBTQ+ Pride Month as well as National Indigenous History Month, and our committee looks forward to celebrating many more.

Building respect and appreciation of others is a work in progress that does not finish with the end of National Indigenous History Month or with Pride Month – it is a continual process of reflection, communicating with others and building community. I am proud to practice at a firm that shares these values and is committed to continually working towards recognizing and fostering inclusion.