Winter 2018 – Newsletter
Welcome to In|Sight, Rogers Partners’ quarterly newsletter that offers our unique perspective on relevant legal issues and the internal happenings of the firm.
Pumping the Brakes on Summary Judgment
A recent decision of the Ontario Court of Appeal may cause counsel and litigants to think twice before proceeding with a summary judgment motion.
In Mason v. Perras Mongenais, 2018 ONCA 948, the Court of Appeal stated that “summary judgment remains the exception, not the rule”.
Teachings of Hryniak
Following the Supreme Court of Canada’s decision in Hryniak v. Mauldin,  1 SCR 87, many lawyers have been eager to recommend summary judgment motions. The Court noted that trials have become increasingly expensive and protracted, and most Canadians cannot afford to go to trial.
The Court stated that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.
The Court held that the culture shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.
It was emphasized by the Court that the summary judgment rules must be interpreted broadly, favouring proportionality.
Although the Court recognized that the inappropriate use of summary judgment motions creates its own costs and delays, it stated that such risks can be mitigated by motion judges making use of their powers to manage and focus the process and, where possible, remaining seized of the proceedings.
Court of Appeal’s Interpretation of Hryniak
In Perras, the motion judge interpreted the culture shift mandated by Hryniak to mean that trials are the option of last resort.
In particular, the motion judge indicated that the culture shift requires an understanding that judges will be deciding cases summarily as much as possible to avoid the expense and delays of the trial process that put civil justice beyond the reach of most Canadians.
The Court of Appeal disagreed, stating that “the culture shift referenced in Hryniak is not as dramatic or as radical as the motion judge would have it”.
The Court of Appeal stated that the culture shift means moving away from the very restrictive use of summary judgment that had developed to a more expansive application of the summary judgment procedure.
However, the Court of Appeal indicated that there is nothing in Hryniak to suggest that trials are now to be viewed as the resolution option of last resort. The overriding principal is that summary judgment is only appropriate where it leads to “a fair process and just adjudication”.
It may be argued that the Court of Appeal’s decision in Perras is not fully in keeping with the spirit of the Supreme Court’s decision in Hryniak.
In Hryniak, the Court strongly encouraged simplified and proportionate procedures for adjudication.
The Court stated that “the summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial”.
Further, the Court stated that the evidence on a summary judgment motion need not be equivalent to that at trial, but must be such that the judge is confident that he or she could fairly resolve the dispute.
The jurisprudence has repeatedly indicated that, on a summary judgment motion, the motion judge is entitled to assume the record contains all the evidence the parties will present if there is a trial. A party must put its best foot forward.
Moreover, as outlined in Hryniak, having a “full appreciation” of the evidence that can be gained at a conventional trial is setting the bar too high, given that such a trial is not a realistic alternative for most litigants
The Court indicated that a documentary record, particularly when supplemented by the new fact-finding tools available on a summary judgment motion, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly.
It remains to be seen whether the Court of Appeal’s decision in Perras will have a chilling effect on proceeding with summary judgment motions, and whether it will cause motion judges to be more reluctant to grant summary judgment.
Perhaps the best characterization of the approach to summary judgment is that of Justice Pepall in her dissenting judgment in Isaac Estate v. Matuszynska, 2018 ONCA 177:
Hryniak ushered in a new approach to summary judgment. This was at least in part a response to the need to provide for greater access to justice. Superior Court judges have answered the Supreme Court’s entreaty with a huge degree of professional commitment and diligence. This is to be lauded. A major goal of summary judgment is costs savings. However, the goal is not summary judgment at all costs. There will still be some cases that ought to go to trial. Some caution must be used.
It is important for counsel to carefully analyze a case to determine whether it is truly appropriate for summary judgment.
As stated by the Supreme Court, while summary judgment motions can save time and resources, they can also slow down the proceedings if used inappropriately. The Court stressed that counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice.
Clarity on Participant Experts - Imeson v. Maryvale
By Stephen Ross and Meryl Rodrigues
Since the release of the Ontario Court of Appeal’s decision in Westerhof v. Gee Estate, there had been little judicial consideration of the role of participant experts within the framework for the admissibility of expert evidence generally.
This framework, outlined most recently by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co. and by the Ontario Court of Appeal in R. v. Abbey, sets out threshold criteria for the admissibility of expert evidence, which is to be met before the trial judge then exercises his or her gatekeeping function in determining whether the benefits of admitting the evidence outweigh the costs of admission.
The Ontario Court of Appeal has now provided some helpful guidance on this issue with the release of its decision in Imeson v. Maryvale.
Imeson is a case involving liability and damages for alleged childhood sexual abuse.
At trial, Maryvale, an institution devoted to care and education of troubled youth, was found vicariously liable for sexual assaults alleged to have been committed against the plaintiff, Jesse Imeson, a convicted murderer, by its former employee, Tony “Doe”.
Although the plaintiff testified that he was also sexually abused by Father Horwath, a Roman Catholic priest who was deceased by the time of trial, the jury did not accept that claim, and the action as against The Roman Catholic Episcopal Corporation for the Archdiocese of London and Father Horwath was dismissed.
At trial, the judge permitted the plaintiff’s treating psychologist, Dr. Smith, to testify as a participant expert, and to proffer opinions formed as part of the ordinary exercise of his skill, knowledge, training and experience while observing or participating in the events at issue.
Dr. Smith’s involvement with the plaintiff was reduced to writing, including the formation of “reports”. Importantly, the reports were not a verbatim record of Dr. Smith’s handwritten notes taken during his sessions with the plaintiff. They were prepared about a year after the conclusion of therapy, at the plaintiff’s request.
The reports contained a number of comments and opinions, including recommendations for future treatment, and thematic connections that were not in the handwritten notes, which were themselves destroyed after the preparation of the reports.
The decision summarizes the events of the voir dire at trial, including defence counsel’s objections to the evidence and the trial judge’s subsequent oral and written rulings permitting Dr. Smith to testify as a participant expert as to “his observations of, impressions formed regarding and treatment provided to the plaintiff” as set out in his reports, and as to the therapy he would have recommended had the plaintiff not terminated therapy, and permitting Dr. Smith’s reports to be filed in their entirety.
Justice van Rensburg, writing for the Court, highlights three opinions elicited by Dr. Smith at trial: (1) problems typical of survivors of sexual abuse; (2) negative impacts of the plaintiff’s childhood abandonment and abuse on his emotional responses and relationships; and (3) the possibility that the plaintiff’s index offence (the first murder of three) in the course of a sexual act arose from a re-experiencing of the sense of betrayal and rage towards his earlier abuser (i.e. at Maryvale).
Dr. Smith’s admission that his role was not to determine if the abuse happened and his acceptance as truth of what the plaintiff told him is noted.
Finally, Justice van Rensburg notes the trial judge’s hearsay caution to the jury regarding the plaintiff’s statements made to Dr. Smith. She also highlights a key and concerning feature of the jury charge, namely the trial judge directing the jury to consider Dr. Smith’s evidence on the issue of liability, in determining whether any of the alleged sexual assaults took place, over defence counsel’s objection.
She also notes that, following a transgression by plaintiff’s counsel of the trial judge’s ruling regarding the manner and nature of the questioning of Dr. Smith, the trial judge asked the defendants if they were seeking a mistrial, which was declined.
The Court’s analysis on the appeal is two-pronged. First, the Court assesses whether Dr. Smith’s evidence was properly tendered as participant expert evidence. Second, the Court assesses whether Dr. Smith’s evidence ought to have been admitted pursuant to the Mohan/White Burgess framework for the admissibility of expert evidence.
The Court concludes that the trial judge erred in allowing Dr. Smith to exceed his proper role by permitting him to testify about anything contained in his reports and admitting the reports into evidence, without first carefully examining what opinions were included in the reports and the purpose for which the jury was to consider those opinions.
The Court endorses the proper role of a participant expert, as outlined in Westerhoff v. Gee Estate, as follows:
[A] witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:
- the opinion to be given is based on the witness’s observation of or participation in the events at issue; and
- the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.
The Court notes that where participant experts exceed the above-noted bounds, compliance with Rule 53.03 is necessary “with respect to the portion of their opinions extending beyond those limits”.
The Court confirms that the trial judge was well familiar with the permissible scope of participant expert testimony as outlined above from Westerhoff.
However, while the trial judge focused on ensuring that Dr. Smith did not offer opinions beyond what was contained in his reports, the Court notes the trial judge’s error in failing to consider the specific opinions within those reports and whether any of those opinions exceeded the scope of proper opinions to be offered by a participant expert.
In this regard, the Court states that Dr. Smith’s role was “blurred” in the circumstances of this case, considering the completion of most of the reports about a year after the plaintiff discontinued treatment and the formation of thematic connections at that time, when Dr. Smith was aware that the plaintiff had commenced litigation.
The Court points out difficulty in imagining why the plaintiff would have requested the reports aside from for purposes of the litigation.
The Court concludes that Dr. Smith’s opinion evidence included evidence falling outside the proper scope of evidence to be tendered by a participant expert, failing both prongs of the tests outlined in Westerhoff in that regard.
First, any opinion where Dr. Smith sought to draw a causal connection between the alleged sexual abuse and the plaintiff’s later behaviour could not have been based on Dr. Smith’s skills, knowledge, training and experience while involved in the plaintiff’s treatment, given Dr. Smith having simply accepted the allegations of abuse as true.
Second, Dr. Smith’s opinions regarding problems typical of survivors of sexual abuse, which went to the issue of whether the abuse occurred, was not based on his observation or participation in the plaintiff’s treatment.
In short, Dr. Smith’s opinions regarding liability and causation were not opinions that he could provide in his capacity as a participant expert, as such opinions were not based on his skills or observations while involved in the plaintiff’s treatment.
Mohan/White Burgess Analysis
Although not necessary given the disposition on the first issue, the Court goes on to consider the trial judge’s admissibility analysis with respect to admitting Dr. Smith’s opinions on the issues of liability and causation under the Mohan/White Burgess framework.
At the first stage of the framework, the court is to assess whether the proposed expert evidence meets the threshold criteria for admissibility, namely: (i) logical relevance; (ii) necessity to assist the trier of fact; (iii) not subject to any other exclusionary rule; and (iv) a properly qualified expert willing and able to provide impartial, independent and unbiased evidence.
At the second and gatekeeping stage of the framework, the trial judge is to determine whether potential benefits of admission outweigh the potential risks to the trial process.
The Court indicates that the trial judge correctly concluded that participant experts are subject to the Mohan/White Burgess framework. However, the Court concludes that the trial judge erred in applying the framework, as on its proper application (keeping in mind the particular opinions and their intended use), Dr. Smith’s opinion evidence on the issues of liability and causation should have been excluded.
In this regard, the Court points out that Dr. Smith’s evidence was not necessary to the central liability question of whether the sexual abuse occurred, which was an issue dependent on an assessment of credibility. The jury did not need expert evidence to assess the plaintiff’s credibility and, further, Dr. Smith’s evidence as to whether the assaults occurred was based on an acceptance of the plaintiff’s allegations as truth and not on any expertise.
The Court further indicates that Dr. Smith lacked the requisite qualifications to give opinion evidence as to the problems typical of sexual abuse survivors or as to the relationship between the alleged abuse and the plaintiff’s subsequent difficulties. Although he had some experience treating inmates who had suffered from childhood sexual abuse, that did not make him an expert in the field.
The Court disregards further analysis of the threshold admissibility criteria (i.e. impartiality, etc.) given the findings on necessity and expertise.
The Court goes on to consider the second stage of the Mohan/White Burgess framework, and concludes that the admission of Dr. Smith’s opinions carried a number of risks to the trial process.
First, there was the risk that his evidence would usurp the jury’s function in assessing credibility.
Second, Dr. Smith’s unedited and unredacted reports contained irrelevant material of significant oath-helping potential. The Court acknowledged that the trial judge turned her mind to the oath-helping concerns and sought to address them by way of her mid-trial instruction. However, the Court concludes that the instruction was insufficient in the circumstances of the case.
In sum, the Court of Appeal outlines the trial judge’s errors as follows:
- The trial judge erred in finding that Dr. Smith’s opinions going to the issues of liability and causation were properly within the scope of opinions that could be elicited from him as participant expert. Those opinions did not meet the requirements outlined in Westerhoff.
- Even if those opinions were within the scope of proper opinions to be offered by a participant expert, the trial judge erred in admitting them into evidence as they failed to meet the threshold criteria of necessity and proper qualification for the admission of expert evidence under the Mohan/White Burgess framework, and should not have passed the gatekeeping analysis (relevance vs. prejudice) given the risk of the admission to the trial process.
The Court concludes that the error of admission of Dr. Smith’s evidence on the issues of liability and causation was sufficient to warrant a new trial.
The decision helpfully confirms that participant experts are subject to the Mohan/White Burgess framework for the admissibility of expert evidence, and are not held to a different admissibility standard.
Additionally, the Court quite firmly indicates that the analysis under Westerhoff and Mohan/White Burgess ought to be applied to the specific opinions sought to be elicited from experts, in consideration of their intended use – as opposed to applying the analyses to an expert as a whole.
In short, an important consideration as it relates to participant expert and, indeed, all expert evidence is the specific opinion(s) sought to be introduced and the purpose for which they are being tendered (i.e. liability, damages, causation, etc.).
Each opinion and its purpose must meet the relevant and applicable framework for the admissibility of expert evidence to be properly tendered into evidence at trial.
Maryvale offers necessary guidance on the scope and limits of participant experts and provides a useful refresher and broader context to the admissibility of expert opinion evidence generally.
 Mr. Ross and Ms. Rodrigues were counsel for the Appellant on appeal.
 2015 ONCA 206.
 2015 SCC 23.
 2017 ONCA 640.
 2018 ONCA 888.
The Latest Case on Social Host Liability
By Sara Baum, Student-at-Law
In Childs v. Desormeaux, 2006 SCC 18, the leading case on social host liability, the Supreme Court of Canada found that no duty of care existed where an intoxicated guest left a party, got in their car, and was involved in a motor vehicle accident in which one individual was killed and another seriously injured.
While the decision in Childs left open the possibility that, in the right circumstances, a social host could be found liable, the Court set a relatively high bar for social host liability. The test has proven difficult to meet.
The most recent decision on social host liability is the Ontario Court of Appeal’s decision in Williams v. Richard, 2018 ONCA 889.
Mr. Williams and Mr. Richard were colleagues and friends who regularly drank beer together after work. On the evening in question, Mr. Williams became intoxicated after consuming approximately 15 beers at Mr. Richard’s home, where he lived with his mother, Ms. Richard.
Mr. Richard, who knew that Mr. Williams was in no state to drive, became aware of Mr. Williams’ intention to drive his children’s babysitter home, with his children in the car. The two had a pact that if either of them was going to drive while intoxicated and children were involved, the other would call the police.
Although Mr. Richard threatened to call the police, he did nothing further to stop Mr. Williams from driving.
Shortly after leaving the Richard’s residence, Mr. Williams loaded his children into his car and drove the babysitter home. On his way back, he was involved in a serious accident, in which he was killed and his children were allegedly seriously injured.
Actions were brought against both Mr. and Ms. Richard, on the grounds that they had breached their duties of care as social hosts.
Mr. and Ms. Richard brought a motion for summary judgment, arguing that no duty of care was owed. The motion judge ruled in their favour, concluding that the requisite duty of care was not established. Relying on John v. Flynn ((2001), 54 OR (3d) 774 (CA)), she found that even if a duty of care did exist, it would have ended once Mr. Williams arrived home safely before leaving again to drive the babysitter.
The ruling was appealed.
The two main issues on appeal were:
- Did the motion judge err in her duty of care analysis?
- Did the motion judge err in relying on John?
(1) Duty of Care
The duty of care analysis should consist of three elements:
- Was the injury reasonably foreseeable?
- Was there sufficient proximity such that there is a duty to act?
- Was the duty, if any, negated by policy considerations?
The foreseeability analysis focuses on a social host’s knowledge of a guest’s intoxication or future plans to engage in a potentially dangerous activity that subsequently causes harm.
The proximity analysis considers whether “something more” is present on the facts to create a positive duty to act.
A number of factors are used in determining what constitutes “something more”, including whether alcohol was served or guests brought their own alcohol, the size and type of the party, and whether other risky behavior was occurring at the party, such as drug use or underage drinking.
The motion judge’s duty of care analysis did not follow this structure.
It was not clear whether the motion judge even considered the issue of foreseeability. The Court held that, with regards to whether it was reasonably foreseeable that Mr. Williams would drive his children and their babysitter, the conflicting evidence suggested there was a genuine issue requiring trial.
With respect to proximity, the Court did not agree with the motion judge’s analogy between this case and Childs – there was no large social gathering as in Childs, this was two men drinking heavily in a garage where alcohol was provided.
Further, the motion judge failed to consider the statement in Childs that “it might be argued that a host who continues to serve alcohol to a visibly inebriated person knowing that he or she will be driving home has become implicated in the creation or enhancement of a risk sufficient to give rise to a prima facie duty of care to third parties”.
The Court held that the facts raised a genuine issue requiring trial with regards to whether Mr. Richard, “invited Mr. Williams into an inherently risky environment that he controlled and created, thereby creating a positive duty of care”.
On the issue of foreseeability, the motion judge incorrectly concluded there was no evidence that Ms. Richard knew that Mr. Williams would be driving while intoxicated. There was conflicting evidence on this point, which raised a genuine issue requiring trial.
With respect to proximity, the Court held that the facts could potentially implicate Ms. Richard in “the creation or control of an obvious and inherent risk”. Again, given the conflicting evidence, there was a genuine issue requiring trial.
(2) Reliance on John
Following her duty of care analysis, the motion judge stated that if she were incorrect in finding that a duty was not established, any such duty ended upon Mr. Williams’ initial safe arrival home.
In coming to that conclusion, she relied on a statement made in John, where the Court held that if a duty did exist, “it did not extend beyond the point where Flynn left the company premises and drove safely to his home”.
The Court of Appeal concluded that the motion judge erred in finding that any duty of care automatically ended when Mr. Williams arrived safely home, as the statement in John did not stand for the proposition that, in all circumstances, a duty of care ends when an intoxicated driver arrives home safely. The limits of the duty must be determined on the facts.
This Court of Appeal decision indicates that the door remains open to a finding of social host liability, reiterating that on the right set of facts, a social host may be found to have breached their requisite duty of care.
The decision also makes clear that a social host’s duty of care does not automatically end upon their intoxicated guests’ safe arrival home.
The Minor Injury Guideline - A Troubling Decision Rescinded
By Alon Barda and Colleen Mackeigan, Student-at-Law
In Abyan v. Sovereign General Insurance Company (FSCO A16-003657, September 14, 2017), Arbitrator Dory found two provisions of the Statutory Accident Benefits Schedule (“SABS”) to be unconstitutional as they infringe upon s.15(1) of the Charter of Rights and Freedoms on the basis of physical disability.
The specific provisions in dispute were: (1) the definition of “minor injury” in s. 3, and (2) the exception to the Minor Injury Guideline (“MIG”) when an insured has a documented pre-existing condition that will prevent the insured from achieving maximum medical recovery, pursuant to s.18(2).
This was a results-based decision with problematic findings that were at least partially based on evidence that did not appear to have been in the evidentiary record before the arbitrator.
Further, it was apparent that if there was appropriate opposition to the constitutional argument, the result would have been different. The Attorney General of Ontario and the insurer did not attend despite being given notice.
Thankfully, in a decision that was expected but left insurers and counsel very concerned until it was delivered, Director’s Delegate David Evans has appropriately rescinded Arbitrator Dory’s decision in its entirety. The MIG is, therefore, not unconstitutional.
In the underlying decision, the claimant brought a preliminary issue motion alleging that it is unconstitutional that chronic pain is captured as “clinically associated sequelae” in the definition of “minor injury” in s.3 of the SABS.
In addition, the claimant argued that it is unconstitutional to require him to show that his pre-existing conditions were documented by a health practitioner before the accident, as required by s.18(2).
The arbitrator found that the definition of “minor injury” was unconstitutional as the inclusion of a “clinically associated sequelae” captures individuals suffering from chronic pain under the MIG, while others suffering from arguably lesser injuries are not.
Moreover, the arbitrator found that the requirement that a pre-existing health condition must have been “documented by a health care practitioner before the accident” in order to not be subject to the MIG, has a discriminatory effect against individuals such as those without access to OHIP, or those who were asymptomatic prior to the accident and would not have had their conditions documented.
The arbitrator ultimately found that both s.3 and s.18(2) of the SABS were in breach of s.15 of the Charter.
The matter was appealed to the Director’s Delegate. Unlike the underlying decision, the insurer was represented by counsel at the appeal, and there were three intervenors: Insurance Bureau of Canada, Ontario Trial Lawyers Association, and the Attorney General of Ontario.
In his decision, Director’s Delegate David Evans found that the arbitrator erred in reaching conclusions as to whether these provisions are constitutional in a factual vacuum. In this regard, he noted that, with respect to s.3, the arbitrator should have first determined if the claimant had, in fact, suffered from chronic pain.
With respect to s.18(2), the arbitrator should have first determined if the $3,500 limit prescribed by s.18(1) applied and, if so, make a finding of fact as to whether the claimant had an undocumented pre-existing condition that would have prevented him from achieving maximal recovery if subjected to the $3,500 limit.
The Director’s Delegate held that, for these reasons alone, the decision should be set aside. Nevertheless, he went on to make comments regarding other submissions.
He stated that the arbitrator “can hardly be said to have done any analysis”. He outlined that the arbitrator failed to consider that the SABS “does not draw a simple distinction between those who have and those who do not have chronic pain” (for example, for those that suffer a broken leg and are not subject to the MIG, there is no distinction between those that do and do not suffer chronic pain as a result).
Further, in terms of the s.15 analysis, the Director’s Delegate cited Miceli-Riggins v. Canada (Attorney General), wherein the court stated that distinctions arising under social benefits legislation such as the SABS, “will not lightly be found to be discriminatory” and that “one cannot simply conclude there is a s.15 violation from the fact that social benefits legislation leaves a group, even a vulnerable group, outside the benefits scheme.”
In this regard, the court in Miceli further stated that “social benefit programs often are expressed in a complex web of interwoven provisions” and “altering one filament of the web can disrupt related filaments in unexpected ways, with considerable damage to legitimate government interests.”
Accordingly, the appeal was allowed and the arbitrator’s decision was rescinded in its entirety with the issue of the claimant’s entitlement to a psychological assessment remitted to arbitration.
In his controversial decision, Arbitrator Dory stated on multiple occasions that the decision was only of application to that case and was not a declaration of general invalidity applicable to any other cases.
While there was some comfort in knowing that the decision was only of limited application, there was ongoing concern for insurers that these arguments would be consistently raised at the LAT, particularly with cases involving chronic pain.
Thankfully, there is now clarity on the constitutionality of the MIG as a result of this well-reasoned and necessary appeal decision.
 Appeal Order P17-00068
 2013 FCA 158 (CanLII)
Insurance Brokers: Meeting the Standard of Care
In 2049390 Ontario Inc. v. Leung, 2018 ONSC 5759, the plaintiff sued its insurance broker for $1.8 million following a fire at a commercial property in Toronto, Ontario. The claim was dismissed.
In January 2009, the owner of the corporate plaintiff, James Kan, contacted an insurance broker, Doris Leung, to inquire about finding new insurance for a commercial property on Queen Street West in Toronto.
Ms. Leung made arrangements for a new insurance policy. The policy included coverage for the building in the amount of $850,000. By 2012, with adjustments for inflation, the building limit was $1,107,764.
In October 2012, a catastrophic fire destroyed the building. The insurer took the position that the plaintiff was underinsured because the cost of the reconstruction would exceed the building limit. The insurer paid out the full policy limits.
The plaintiff sued the insurance broker on the basis that the broker should have provided advice to consult with a building reconstruction expert to obtain an accurate estimate of the value of the building.
The broker stated that she told Mr. Kan that he should consult with a cost consultant or professional appraiser during their initial meeting and again at the time of each renewal. Further, documentation was provided to Mr. Kan with a recommendation to review the value of the property with an appraisal company.
Justice Favreau provided an overview of the duty of care owed by insurance brokers.
Insurance brokers have a stringent duty to provide both information and advice to their customers. The service they provide is highly personalized, concentrating on the specific circumstances of each client.
An insurance broker must clearly communicate the limits and absence of coverage.
The action proceeded to a two week trial. Experts who testified for both sides agreed that insurance brokers are not qualified to give replacement cost advice to clients. The experts agreed that, at the very least, a best practice is to advise clients of the need to obtain expert advice on this point.
Justice Favreau found the owner of the corporate plaintiff, Mr. Kan, to not be a credible witness. She accepted the evidence of the insurance broker that the plaintiff was advised to verify that the amount of coverage reflected the value of the property and that the plaintiff should get advice from a cost consultant.
In addition, the warnings that were contained in the written communications to the plaintiff were not hidden or buried in lengthy documents. It would be fair to expect Mr. Kan to read and pay attention to the documents. Mr. Kan was a real estate agent and a mortgage broker, which suggested a high level of sophistication.
Justice Favreau held that the insurance broker was not negligent or in breach of any contractual obligations.
Even if the insurance broker failed to advise Mr. Kan to retain a cost consultant, Justice Favreau was not satisfied that the plaintiff would have acted differently. It was evident that Mr. Kan was primarily motivated to seek out less expensive insurance. He did not demonstrate that he would have retained a cost consultant. As a result, Mr. Kan failed to prove causation.
Moreover, the plaintiff did not produce an expert report addressing the advice a cost consultant would have provided at the relevant time.
Insurance brokers have a stringent duty to provide information and advice to their clients on insurance coverage and gaps in coverage.
Insurance brokers need to understand the nature of their clients’ business and assess risks.
In areas where brokers do not have expertise, such as assessing the replacement cost of a building, they should recommend to their clients retaining other specialists.
Insurance brokers should keep detailed records of the advice provided to clients. When advice is provided orally, it is a good practice to follow up with written correspondence.
Speculative Trip and Fall Claim Dismissed
In Cannito v. Madison Properties Inc., 2018 ONSC 6190, the plaintiff went to a plaza in Toronto, Ontario and tripped and fell in the parking lot. She sued the owner of the property.
Immediately after the accident, the plaintiff did not know what caused her to fall. However, approximately two weeks later, after consulting with a lawyer, she returned to the parking lot and noticed a missing piece from a speed bump.
On discovery and at trial, the plaintiff stated “there was a piece missing and maybe that’s what I tripped [on] and then I fell”.
In dismissing the plaintiff’s lawsuit, Justice O’Marra stated that an inference of causation must be based on objective facts rather than conjecture or speculation. He said that “speculative theories are insufficient to establish liability”.
Justice O’Marra indicated that there was no objective evidence to connect the plaintiff’s fall with any deficiency with the speed bump.
Aside from the plaintiff’s speculative theory on how she tripped, Justice O’Marra determined that the speed bump was properly marked with yellow paint.
Justice O’Marra concluded that the plaintiff failed to prove that the defendant breached its duty of care pursuant to the Occupiers’ Liability Act or caused her injuries as a result of any breach.
What's Happening at Rogers Partners
- In a decision released in October 2018, Meryl Rodrigues was successful in a motion to strike a third party claim in the case of Paterson v. Skyline Hotels and Resorts Inc.
- In November 2018, the Court of Appeal released an important decision addressing the role of participant experts. Stephen Ross and Meryl Rodrigues were counsel for the successful party in Imeson v. Maryvale. Erin Crochetière provided valuable assistance.
- Tom Macmillan was interviewed by Law Times in November 2018 for his opinion on two recent Court of Appeal decisions dealing with municipal liability.
- In November 2018, Stephen Ross was a speaker at an Osgoode Professional Development conference on Personal Injury Law & Practice. Stephen presented on the interplay between collateral benefits and tort damages in motor vehicle accident claims. Stephen Ross and Meryl Rodrigues wrote a comprehensive paper on this topic which has been relied on by the Court of Appeal.
- Rogers Partners held a charity potluck in November 2018 in support of the Canadian Breast Cancer Society.
- In December 2018, a five member panel of the Court of Appeal released a key decision overturning prior decisions which required strict matching for the assignment of collateral benefits in motor vehicle accident claims. Stephen Ross and Gemma Healy-Murphy were counsel for one of the successful defendants in Carroll v. McEwen. Emily Vereshchak provided important assistance.
- Stephen Ross was quoted in Law Times in December 2018 on his view of how the Supreme Court’s decision in Hryniak v. Mauldin has been interpreted in regards to summary judgment motions.
- In December 2018, Stephen Ross, Brian Sunohara, and Meryl Rodrigues were counsel at the Court of Appeal in a matter which addressed the use of surveillance videos and social media documents at trial. Sara Baum provided valuable assistance. The decision is under reserve.
- Brian Sunohara was interviewed by Law Times in December 2018 for his opinion on the legal obligations of insurance brokers.
- As part of an annual tradition, Rogers Partners is participating in the Salvation Army toy drive.
- In January 2019, Stephen Ross, Andrew Yolles, and Erin Crochetière will be counsel for the appellants at the Court of Appeal in a case involving a large quantum of damages awarded at a jury trial.
From the Desk of David Rogers
The Harm of Hazing
I have been thinking a great deal about the recent events that took place at a well-known Toronto private school, where seven young boys now face criminal charges after some members of the school’s football team allegedly sodomized another student with a broom handle.
Strange as it sounds, I thought this would be a good topic to write about for the “From the Desk of” section of our newsletter, as I currently have a very large stack of documentation sitting on my desk that relates to two historical sexual abuse cases that will soon be proceeding to mediation. One of those involves a former high school student who was sexually assaulted by a teacher, as well as by older students at his school on other occasions.
Hazing is not a new phenomenon and it is not strictly a private school issue. It also does not take place at all private schools.
I myself went to a Toronto private school for a short period of time. I played on a varsity team at a young age, starting in grade 10. I was much younger than the senior boys, most of whom were in grade 13. However, I never experienced hazing of any kind. I was a rookie, but I was treated with respect as a person.
This recent incident in Toronto does, however, mirror events that have previously been reported at Canadian and American universities and at other high schools throughout North America.
A quick Internet search shows that there have been over 200 hazing related fatalities in males that have occurred in North America since the first half of the 19th century. I cannot imagine how many hazing related sexual assaults have taken place over that same period of time.
Just over a week after the Toronto private school incident became public, four 15 year old Maryland high school students were charged with first-degree rape in a locker room attack, and now face life in prison after four 14 year olds had their pants pulled down and were allegedly also assaulted with a broom handle.
A similar incident recently took place in Oklahoma City where high school football players sexually assaulted a freshman with a broom handle. In Texas, 13 varsity football players were accused of sodomizing their younger teammates with various instruments, including baseball bats and carbon-dioxide tanks. Other incidents have recently been reported in Virginia, Utah and Illinois. The list goes on.
In fact, as I am writing this, I am also reading an article about a similar hazing incident that recently took place in New Jersey with a boys wrestling team and threats of assault against a student, again, with a broom handle.
The Effect of Hazing
I have been struggling to sort through what would be going on in a young person’s mind to think it acceptable to sodomize a teammate with a broom handle. Would the type of person who committed a sexual assault as part of a hazing ritual also be capable of sexual assault at the level I will be dealing with at my upcoming mediation? Is there a difference? I don’t know the answers to these questions.
I do know that either type of assault has a very real impact on the victim. Although one takes place in private and the other in front of a number of peers, I would imagine the impact on the victim would be much the same.
I have written about this impact before, as any type of sexual assault can cause serious trauma, be it repeated molestation, one act of forced intercourse or being assaulted with a broom handle in exchange for the right to play on a football team.
A Culture Shift
I also know this must stop. How? Well, I expect that the boys who assaulted their younger teammate with a broom handle likely went through a similar ritual of some kind when they joined the team. Likely the students before them did as well, as did the ones before them. That is how a damaged and dangerous culture develops and remains in place.
To end these types of assaults, the culture that permits this behaviour as acceptable must be broken, completely. This requires complete, and absolute, zero tolerance for hazing of any kind.
Let me take you back to my high school days. The year before I played on the varsity team, I was in grade 9. I remember very well that the rookie varsity football players that year all had their heads shaved in bizarre fashion.
This, assumedly, was done by the senior players as part of some type of hazing ritual. I expect this type of thing had been happening, to some extent, for years. I also remember thinking it was funny and all rather harmless.
The school administration, however, did not treat it as funny and they did not treat it as harmless. The senior students involved were seriously disciplined and we, as students, were made well aware that this type of conduct would not be tolerated by the school in any way.
This strong message ended the cycle of hazing and prevented me from being hazed when I played on the varsity team the next year.
All those involved in the school system – administrators, teachers, coaches, parents, and students – have a role to play in preventing hazing and the serious harm that comes with it.