Winter 2019 – Newsletter

By Carol-Anne Wyseman

A recent Court of Appeal decision, Reeb v. The Guarantee Company of North America (“Reeb”),[1] has clarified the limitation period for commencing duty to defend applications.

Previously, it was commonly thought that the limitation period for these applications was two years from an insurer’s refusal to defend. Indeed, in 2015, Justice Belobaba stated in Zochowski v. Security National Insurance[2]: “[t]he law is clear that a clear and unequivocal denial of coverage triggers the two-year limitation period.”

In Reeb, however, the Court of Appeal recently stated that the duty to defend is an ongoing obligation to be applied on a “rolling” basis. In other words, even more than two years following a denial of coverage, a duty to defend application can be brought.

RSA had brought an application for declarations that Guarantee and Co-operators respectively had a duty to defend Mr. Reeb, and for a declaration that they were obligated to pay to RSA an equal one-third share of ongoing defence costs and disbursements incurred in Mr. Reeb’s defence going forward.

RSA did not seek contribution towards any potential indemnity and did not seek contribution for past payments.

The application judge had found that Guarantee and Co-operators both had a duty to defend Mr. Reeb, and ordered that Guarantee, Co-operators and RSA were obliged to share the defence costs equally going forward.

Guarantee and Co-operators appealed the application judge’s decision. On appeal, they argued that RSA’s application for contribution to the defence costs was statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, because RSA’s application was brought over two years after Guarantee and Co-operators refused to defend Mr. Reeb.

RSA argued that the duty to defend is an ongoing obligation to be applied on a “rolling” basis. It further argued that since it only sought contribution on a going forward basis, no limitation period attached. The Court of Appeal agreed.

Notably, the Reeb decision indicates that, while the limitation period for commencing a duty to defend application is rolling, the insurer’s obligation to pay defence costs is only on a going forward basis.

RSA relied on a 2016 Court of Appeal decision, Pickering Square Inc. v. Trillium College Inc.[3] In that case, the tenant failed to comply with a covenant in the lease to operate its business continuously.

Upon discovering this breach, the landlord elected not to cancel the lease. Rather, it affirmed the lease, which required both parties to perform their obligations under the lease. The tenant did not perform its obligations. The Court of Appeal found that the tenant was in breach of the lease each day, and that there was thus a “rolling” limitation period.

The Pickering Square decision dealt specifically with when claims are discovered for limitations purposes in the context of a continuing breach of contract.

Rolling limitation periods are logical where ongoing contracts are concerned, as a breach of the contract could occur at any point.

However, in the context of duty to defend applications, an insurer either has a duty to defend or it does not. If that insurer opts to not defend, that decision can then be challenged. It is unclear why a rolling limitation period should apply in these cases.

[1] 2019 ONCA 862.

[2] 2015 ONSC 7881.

[3] 2016 ONCA 179.

By Alon Barda

In the recent decision of Burns v. RBC Life Insurance Co.^[1], Justice Perell dismissed a claim against employees of RBC that were involved in the denial of the plaintiff’s disability claim. The case provides insight as to when claims against insurance adjusters may be struck on a rule 21 motion for a failure to disclose a reasonable cause of action.

Allegations

The statement of claim in this case advances various allegations regarding the termination of disability benefits by RBC. Aside from specifying that it was one employee that denied the benefits and one that denied the appeal, the various causes of action are an undifferentiated collective of alleged misconduct on the part of RBC and the two employees. This includes reference to “they” in 38 of the specific allegations.

In a matter of foreshadowing, Justice Perell states at the outset that these allegations could be pleaded singularly as the misconduct of RBC. Furthermore, the misconduct alleged against the employees does not constitute any independent interest they may have outside of their role as employees and the allegations do not manifest a separate identity or interest from their employer.

Test on Motion to Strike

In order to be successful on a motion to strike on the grounds that the claim does not disclose a reasonable cause of action, the defendant must show that “it is plain, obvious, and beyond doubt that the plaintiff cannot succeed in the claim.” For the purposes of such a motion, the facts in the pleading are assumed to be true.

Justice Perell explains that a failure to establish a cause of action usually arises when either the allegations in the statement of claim do not come within a recognized cause of action or the allegations do not plead all the elements necessary for a recognized cause of action. In this case, the latter ground was at issue.

Personal Liability of Employees

Justice Perell outlines that personal liability is not engaged “solely because a corporation acts through human agency”.

While directors, officers and employees may be liable for their own tortious conduct, the plaintiff must specifically plead a cause of action against an individual in his or her personal capacity in order to properly plead a case of personal liability against an employee.

Citing the Ontario Court of Appeal case of Lobo v. Carleton University,^[2] Justice Perell outlines that, for employees to be personally liable in tort for conduct associated with their work, the actions of the employees must themselves be tortious or the action must exhibit a separate identity or interest from those of the employer so as to make the act or conduct complained of their own.

As such, Justice Perell states that, when a plaintiff sues both a corporation and individuals within that corporation, the plaintiff must plead the requisite particulars that disclose a basis for attaching liability to that person in his or her personal capacity.

Decision

In this case, the plaintiff relied on the decision of Spiers v. Zurich^[3] wherein the court held that there was an implied term in a contract of insurance that adjusters (in addition to the insurer) owe a duty of good faith to the insured and can be held liable for a breach of that duty.

Justice Perell outlined that, while this decision was followed or favourably commented on in subsequent cases, it was not followed in Burke v. Buss^[4] wherein the judge found that no authority had been cited in Spiers in support of the finding of an independent duty of good faith for adjusters.

Justice Perell added that apart from the absence of supporting authorities, there was no mention in Spiers regarding the strong line of decisions from the Ontario Court of Appeal delineating how and when an employee can be individually liable for his or her tortious conduct while engaged in employment activities.

Ultimately, Justice Perell states that he is not bound by Spiers and it is his opinion that it was wrongly decided on the point of the liability of employees.

Justice Perell ultimately finds that the claim must be struck without leave. While the actions of the employees in denying the claim and dismissing the appeal may make the insurer vicariously liable for the various causes of action alleged, the actions as pled are not those that would expose the employees to personal liability.

Furthermore, while the various allegations of collective misconduct may result in a breach of a duty of good faith, they do not manifest a separate entity or interest for the two employees and are not themselves the tortious acts of the employees in their personal capacity.

Conclusion

This claim is a welcome decision for insurance adjusters handling disability claims and other first party claims.

A claim may be struck if the allegations, including, for example, the denial/dismissal of a disability claim as well as numerous allegations of collective misconduct, including a breach of a duty of good faith, do not manifest a separate identity or interest for the employees and are not tortious acts of the employees in their personal capacity.

In short, it is very difficult for a plaintiff to succeed in a claim against an insurance adjuster.

[1] 2019 ONSC 6977

[2] 2012 ONCA 498.

[3] (1999), 24 O.R. (3d) 726 (Gen.Div.), leave to appeal to Div. Ct. denied.

[4] [2002] O.J. No. 2938 (Ont. S.C.J.).

By Colleen Mackeigan

The Ontario Superior Court of Justice (“ONSC”) indicated in Roy v. Primmum Insurance Company[1] that defence counsel are not permitted to communicate with a plaintiff’s treating healthcare practitioners, without the plaintiff’s consent, even if the healthcare practitioners were retained by the insurer to perform assessments. This includes preparing treating healthcare practitioners for trial.

Facts

In Roy, the plaintiff was seriously injured in a motorcycle accident in 2004. He received statutory accident benefits through Primmum. In 2010, the plaintiff applied for a determination that he was catastrophically impaired (“CAT”), which was denied by Primmum.

In 2014, Primmum conceded that the plaintiff was, in fact, catastrophically impaired and paid retroactive CAT benefits (i.e. attendant care, housekeeping and home maintenance benefits) from 2010 onwards.

The plaintiff takes the position that he is entitled to retroactive CAT benefits from 2004, when the accident occurred. This is the issue to be adjudicated at trial.

Primmum intended to rely on the reports prepared by three occupational therapists that had previously treated the plaintiff in support of their position that the plaintiff was not entitled to additional CAT benefits prior to 2010.

While the three occupational therapists were treating the plaintiff, each prepared reports pursuant to s.42 of the Statutory Accident Benefits Schedule at the request of Primmum. The contents of these reports differed from the retroactive Form 1 assessment that the plaintiff intended to reply upon at trial. Accordingly, Primmum intended to call the three occupational therapists to testify at trial.

On the eve of trial, Primmum advised that it wished to speak the three occupational therapists in order to prepare them to testify. Plaintiff’s counsel opposed this request on the basis that the three witnesses were the plaintiff’s treating occupational therapists and consent had not been given for defence counsel to communicate with them.

Issue

Is defence counsel entitled to speak to the plaintiff’s treating occupational therapists?

Analysis

Ontario courts have long recognized that special rules apply when counsel for one party seeks to interview a physician who treated another party.

The court in Roy cited Burgess (Litigation guardian of) v. Wu[2] wherein Justice Ferguson identified the rules concerning access to confidential medical information outside the courtroom, as follows:

• Unless the patient consents, counsel for another party may not have any communication at all with the patient’s health care professionals concerning the patient. A plaintiff’s health care professionals have a corresponding duty to refuse to disclose the information about their patient unless required to do so by law.
• In the absence of consent, access to confidential medical information before trial can be obtained in only two ways: (a) by obtaining pre-trial discovery pursuant to the rules of the court, notably rule 31.10, or (b) by seeking a special disclosure order from a judge exercising inherent jurisdiction.
• Even where access is permitted, the person under a duty of confidentiality cannot be asked for opinions beyond those formed during treatment of the patient unless this is specifically consented to or ordered.

Primmum advanced two arguments in support of its position that defence counsel should be free to communicate with the occupational therapists.

The duty of confidentiality does not apply

Primmum argued that the principles enunciated in Burgess do not apply as the three occupational therapists had been previously retained to conduct s.42 assessments of the plaintiff on behalf of Primmum.

Further, Primmum argued that in discussing their testimony, the occupational therapists would not be disclosing any information that the plaintiff had not already consented to disclosing via his participation in the s.42 assessments.

The court rejected this argument. The court stated that Primmum’s decision to retain treating occupational therapists as s.42 assessors cannot and does not imply that the patient (i.e. plaintiff) loses the protection that the law otherwise extends with respect to the relationship between patients and health care professionals.

Further, the court found that the plaintiff did not waive his right to confidentiality with respect to the information that was obtained by the occupational therapists through the s.42 assessments, by the plaintiff’s participation in same.

The plaintiff consented to disclosure

Primmum argued that the plaintiff agreed to disclosure of information by the occupational therapists by way of written consent.

The court found that the written consent only applied to two of the three occupational therapists at issues and further, the consents did not permit Primmum to obtain information from the two occupational therapists to which they applied beyond the scope of the contents of the s.42 assessment reports they prepared.

Further still, the court found that the authorizations were only in effect for twelve months from the date of signature such that they could not be used by Primmum for the current disclosure that was sought, 14 years after the fact.

Determination

The court found that Primmum was not seeking further discovery, but rather sought to engage in off the record discussions with the plaintiff’s treating occupational therapists.

Had the occupational therapists in question not had a prior relationship with the plaintiff, there would be no issue with defence counsel wanting to prepare the witnesses for cross-examination, refresh their memory and to gain a better understanding of how the witnesses would present to the trier of fact.

The court held that even though defence counsel may maintain that no confidential information is to be sought by the treating physicians, the confidentiality of the relationship between patient and physician must be respected.

Further, the court held that the defendant’s desire to ensure that their witnesses will say that they expect, or want, them to say, is not a justification to allow defence counsel to speak with the plaintiff’s treating physicians.

Accordingly, the defendant’s motion was dismissed.

Take-aways

• Defence counsel may not speak with a physician (or medical/rehabilitation professional) that currently or previously treated the plaintiff, even when defence counsel intends to call the treating physician as a witness for the defence
• Primmum argued that that its decision to retain treating occupational therapists to perform s.42 assessments should be applauded, because they had much better insight into the plaintiff’s condition than an independent expert would. In theory this makes perfect sense. However, it is now clear that such a move by an insurer will likely cause issues in being able to appropriately prepare the practitioners to testify.
• Consent by a plaintiff for disclosure of medical information in compliance with the Personal Information Protection and Electronic Documents Act,C. 2000, c.5 may be given a very narrow reading by a court if the defendant intends to rely on the consent to speak directly with the medical professionals to which the consents apply.

[1] 2019 ONSC 6361.

[2] 2003 CanLII 6385 (ON SC).

By Brian Sunohara

How are defence costs allocated among multiple insurance companies that each insured a defendant over various periods? This issue was addressed in St. Paul Fire & Marine Insurance Company v. AIG Insurance Company of Canada et al, 2019 ONSC 6489.

Facts

Lockerbie & Hole Eastern Inc. (“Lockerbie”) is a construction company. Its predecessor was contracted by York University to build a steam heating and cooling pipe system (a mechanical system) in 2002.

York University alleged that construction defects in the mechanical system led to various failures requiring repairs and remediation after construction, including specific failures in July 2003, February 2005, and April 2011, culminating in a leak in the cooling system in December 2013.

In 2013, York University sued Lockerbie and an engineering company for $8.5 million.

There were four insurers that insured Lockerbie during different time periods:

• Northbridge: March 1, 2003 to March 1, 2009
• St. Paul: April 1, 2009 to January 31, 2010
• AIG: January 31, 2010 to July 1, 2014
• Zurich: July 1, 2014 to July 1, 2016

St. Paul acknowledged that it had a duty to defend Lockerbie, and Northbridge and Zurich eventually also acknowledged a duty to defend. AIG denied that it had a duty to defend, but Justice Sossin held that AIG was required to defend Lockerbie.

Allocation of Defence Costs

There was disagreement regarding how defence costs should be allocated among the four insurers. St. Paul and Zurich sought an allocation based on a “time on risk” approach. Northbridge sought an equal allocation of defence costs. AIG took no position on this issue.

Justice Sossin noted that the allocation of defence costs among insurers is a question of fairness within the court’s equitable jurisdiction.

In order to determine the appropriate approach to allocating defence costs, it is necessary to determine the “trigger” theory which fits the circumstances of the case. Justice Sossin held that the “continuous trigger” theory was most appropriate, based on the facts of the case.

Under this theory, the property damage is effectively deemed to have occurred from the initial exposure to the time when the damage became manifest or ought to have become manifest to the plaintiff, and, if alerted, to the insurer. In such a situation, all insurance policies in effect over that period are called upon to respond to the loss.

In other words, the “continuous trigger” theory applies where the damage occurs continuously throughout the various policy periods.

Justice Sossin indicated that the time on risk approach appears to reflect the preferred approach in Canadian courts in cases involving multiple insurers and continuous damage.

However, the time on risk approach may not be fair and equitable when there is uncertainty with respect to the start and end point of the damage period or uncertainty as to the period of each insurer’s coverage.

In the case at bar, Justice Sossin found that there was no guesswork with respect to these issues (the period of damage and the time each insurer was on risk). Therefore, His Honour held that the time on risk approach is appropriate.

As a result, each of the four insurers is responsible for defence costs on a pro rata basis, calculated by the months or years of covered damage under its policies.

However, Justice Sossin noted that this approach does not necessarily represent a final allocation of defence costs. Based on the evidence at trial, or findings on interlocutory motions, the actual damage occurring during actual time periods may clarify the portion of damage for which each insurer is actually responsible. Such findings could merit a reallocation of defence costs.

Effect of Self-Insured Retention

 Another issue that arose in this case is whether a self-insured retention (“SIR”) impacts an insurer’s duty to contribute to defence costs.

Zurich argued that the SIR provision in its policy meant that its duty to contribute to defence costs only arose after the first $50,000 of its obligations were paid by Lockerbie.

Justice Sossin rejected this argument, stating that an application against other insurers for contribution to defence costs is a claim in equity, not contract. Therefore, an SIR provision, and the contractual rights or burdens to which it gives rise, do not constitute a basis on which to alter the allocation of defence costs as between various insurers.

Justice Sossin held that, if Zurich seeks to invoke the SIR against Lockerbie, this may be the subject of a separate proceeding between those parties at some point in time.

Conclusion

In claims involving continuous damage over multiple policy periods with different insurers on risk, the time on risk approach is generally favoured, as opposed to an equal sharing of defence costs among insurers.

The time on risk approach utilizes a pro rata calculation of which insurer will be reasonable for defence costs based on the months or years of covered damage under its policies. This is subject to reallocation based on factual findings on when the damage actually occurred.

If there is uncertainty over the start and end point of the damage or uncertainty on the period of each insurer’s coverage, then the court may find the equal sharing approach to be the most appropriate.

By Rebecca Moore

What quantum of costs can a successful party reasonably expect to be awarded when the anticipated length of the trial was exceeded by a considerable margin? This question was explored by the court in Sarno v. Murphy, 2019 ONSC 7008.

Following a three and a half week jury trial, the plaintiff was awarded $36,000 in damages. After application of the statutory deductible, the action was dismissed, and submissions made with respect to costs.

Principles

Following the principles enunciated in Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (Ont. C.A) and Davies v. Clarington (Municipality) (2009), 100 O.R. (3d) 66 (Ont. C.A.), and in keeping with rules 49 and 57 of the Rules of Civil Procedure, Justice Varpio considered the objective of awarding costs:

The overall objective of the costs regime is to award a quantum of costs that is fair and reasonable to the unsuccessful party in the particular circumstances, rather than awarding an amount determined by the actual costs incurred by the successful litigant.[1]

Defendant’s Position

The defendant submitted that they were entitled to costs as they were successful in beating their offer at trial. With reference to a few offers having previously been exchanged, Justice Varpio noted the defendant’s offer of $200,000 plus costs and disbursements, which was made 30 days prior to the trial.

Though initially seeking substantial indemnity costs, defence counsel conceded during oral arguments that they were entitled to partial indemnity costs of $211,234.92.

Plaintiff’s Position

In response, the plaintiff took the position that they should be entitled to their costs, or in the alternative, that no costs should be awarded, given the defendant’s conduct at trial. Four arguments were put forward by the plaintiff in support of this position:

1. As per s. 258.5(1) and 258.6(1) of the Insurance Act, insurers are obligated to attempt good faith resolutions;
2. Mediation was suggested by the defendants in 2018, scheduled, then postponed. A second mediation date was subsequently abandoned after the defendant failed to confirm same;
3. The defendant failed to negotiate around the pre-trial judge’s suggested settlement figure; and
4. The defendant failed to comply with its obligations under s. 258.5(1) and 258.6(1) of the Insurance Act (attempting to settle and mediating).

The plaintiff also took issue with the defendant’s bill of costs, specifically with respect to preparation and attendance time for one day of discovery, as well as the number of hours spent for trial preparation.

Additional Submissions on Delay

Following written arguments, Justice Varpio requested counsel attend to make oral submissions on whether the defence counsel’s conduct had unnecessarily lengthened the trial beyond the two weeks originally scheduled, to the three and a half weeks it ultimately took to complete.

It is of note that Justice Varpio met with counsel in advance of trial to compile a timetable to ensure the timely completion of the trial. During this meeting, the length of cross-examinations were discussed, particularly that of the plaintiff’s, in light of four medical experts that were expected to fly in from Toronto, each with their own scheduling limitations.

It was also during this meeting that the court became aware of a motion, which had been brought by the defendant 30 days before trial, to obtain an order requiring production of the plaintiff’s employment records. These records were produced on the eve of trial, with one day required for their review.

Court’s Decision

Overall, Justice Varpio identified two problems that arose during the course of the trial:

1. Consent for the production order should have been sought 60 days before trial; and
2. The cross-examination of the plaintiff exceeded the defendant’s anticipated length of time “by a considerable margin,” which was compounded by the trial having to be adjourned one afternoon as a result of the plaintiff breaking into tears.

While Justice Varpio commended both counsel for their efforts to work together on the rescheduling of the witnesses, these issues ultimately resulted in the timetable becoming “completely out of orientation.”[2]

The combination of these issues was found to have lengthened the trial 1.5 weeks beyond the time originally scheduled, which the plaintiff was not to be held responsible for.

Of note, the defendant was also found to have lengthened the trial unnecessarily by failing to have a good reason for cancelling the second mediation. It was held that the plaintiff should not have to pay costs associated with the failed mediation.

In consideration of the totality of the circumstances, the plaintiff was ordered to pay $150,000 all-inclusive to the defendant.

Conclusion

In advance of trial, thoughtful consideration should be given to the anticipated length of witness testimony, as well as any potential scheduling conflicts that may arise for expert witnesses, so as to ensure the trial is completed with the time allotted by the court.

Productions should be sought be well in advance of trial to avoid potential delays during the trial.

Should a party’s conduct be found to have unnecessarily delayed the trial, this may be taken into consideration when assessing an award of costs, even to a successful party.

[1] Sarno v. Murphy, 2019 ONSC 7008 (Ont. S.C.) at para 2

[2]Sarno v. Murphy, 2019 ONSC 7008 (Ont. S.C.) at para 10

By Micah Pirk O’Connell, Student-at-Law

“If money go before, all ways do lie open“: Shakespeare, Merry Wives of Windsor, Act 2 Scene 2.

On January 1, 2020, the Small Claims Court limit in Ontario will increase from $25,000 to $35,000. Ostensibly, this change will promote access to justice for litigants and take some pressure away from the overburdened Superior Court of Justice. However, for the self-represented, the devil is in the details.

Small Claims Court exists in that peculiar spot between claims that may not be worth litigating at all, and claims that require legal counsel to navigate. Some of the mechanisms in place to promote judicial economy at the Superior Court, such as summary judgment, are becoming watered down in Ontario. Resolving a claim at the Superior Court level could take years, not to mention the price of admission.

The increase of the Small Claims Court limit means that claims which may otherwise have been too small for lawyers to take on contingency and too complex for self-represented litigants to handle themselves in Superior Court, may be heard and disposed of through the (theoretically) more manageable and streamlined Small Claims Courts.

While that may sound like a win-win for courts and litigants alike, with more money comes more problems.

The Cost of Doing Business

$10,000 may seem like a modest increase, however, the potential ramifications are significant. When Ontario began contemplating increasing the Small Claims Court limit from $10,000 to $25,000, which ultimately came to pass in 2016, those with an eye for judicial reform began to see problems.

The Civil Justice Reform Project predicted that along with the monetary increase, facilities would need to be expanded. Additional court staff including registrars, clerks and judges would have to be hired. The 77 Small Claims Courts across Ontario would need to be ready when the time came.

Four years after the last increase we find ourselves in the same straits once again; with no more staff, judges or courts to show for it than we had in 2016. If the increase in limits is intended as a heal-all, additional infrastructure must be built into the change. Without resources to accommodate the increase in cases on an already burdened Small Claims system, access to justice will not win out.

Expanded Powers

It is not only the brick and mortar machinery of the judiciary that requires attention. Options for disposing of claims are limited in the Small Claims Court. Unlike the Superior Court and the Court of Appeal, Small Claims Court does not have the jurisdiction to grant equitable relief.

Equitable relief is a non-monetary mechanism. It is used to either force a party to act, or stop them from acting altogether. It is commonly used to rescind and revise contracts, particularly in cases involving intellectual property.

However, it could also be used in Small Claims Court, in limited circumstances. Tired of your neighbor shoveling their snow onto your driveway? The court could order them to keep excess snow on their property. This mechanism would provide practical solutions to problems which cannot be remediated through monetary awards.

In Alberta, where the Small Claims Court limit is currently set at $50,000, judges have powers to grant equitable relief, provided the value of the claim is within the monetary limit. It would be wise to consider a similar scheme in Ontario, before the change creates a situation beyond remedy.

If we simply shift the burden from the Superior Court to Small Claims Court, all the trappings of progressive change will be on full display, but without the substance to meaningfully improve the system. It may be that these growing pains result in future amendments, but a handful of small changes now will save dividends in the long term.

Practical Considerations for Insurers

For insurers, the increase will likely have a noticeable effect. Files that would have been prohibitively expensive for plaintiffs to bring to trial in Superior Court are more likely to go forward in Small Claims Court.

The Courts of Justice Act provides that, short of punitive damages for unreasonable behavior, costs awards in Small Claims Court are limited to 15%.[1] When the increase comes into force, this means the maximum cost award will be just $5,250.

Where the increase in the monetary limit correlates to an increase in complexity, the likelihood that the expense of preparing for trial outweighs the potential cost award is high. Conversely, for plaintiffs, the spectre of a cost award of $5,250 is far less daunting than what they would have faced in Superior Court.

While the increase does not amount to a paradigm shift for insurers, it will be important to bear these considerations in mind; particularly when performing a cost/benefit analysis with respect to the value of claims and settlement offers.

As with any change to the system, it will take time to see where the dust settles. It may be that the increase allows smaller files to be disposed of early by insurers, without resorting to the now cumbersome summary judgment process.

Either way, as the New Year looms, it is a good time to consider any claims which fall under the $35,000 limit, and prepare for the possibility that they continue in Small Claims Court.

[1] Courts of Justice Act, R.S.O. 1990, Chapter C.43, s. 29.

By Ankita Abraham, Student-at-Law

Effective January 1, 2020, there will be a number of significant changes regarding matters brought under rule 76 of the Rules of Civil Procedure (“Simplified Procedure”), including the following:

Increase in the Monetary Jurisdiction from $100,000 to $200,000

Currently, claims of up to $100,000 can be started in the Superior Court of Justice using the Simplified Procedure process. Starting January 1, 2020, the government has increased the monetary jurisdiction to $200,000, thus allowing considerable more cases to proceed by way of Simplified Procedure.

Time Limit for Oral Discoveries

To reflect the increase in the monetary jurisdiction, the time limit for oral examinations for discovery will increase from two (2) hours to three (3) hours.

Procedural Changes to Pre-Trial Conference, including the Trial Management Plan

Previously, the registrar served the notice of pre-trial conference at least 45 days before the scheduled date.

Starting January 1, 2020, parties are responsible for scheduling the pre-trial conference under rule 50.02. Within 180 days after the action is set down for trial, the parties can schedule a date and time with the registrar for the pre-trial conference.

In addition, at least 30 days before the scheduled pre-trial conference, the parties are to agree on a proposed trial management plan. The proposed trial management plan must include a list of every witness, including expert witnesses each party anticipates to call at trial, and a division of time between the parties which set out allotted times for the following items, not to exceed five days:

• opening statement;
• the presenting of evidence in chief by affidavit and under rule 31.11;
• cross-examination of deponents;
• re-examination of any deponents; and
• oral argument.

At least five (5) days before the pre-trial conference, each party must file the following documents:

• a copy of the above-mentioned proposed trial management plan;
• the party’s affidavit of documents and copies of the documents relied on for the party’s claim or defence;
• an expert affidavit, which includes the expert report appended to the affidavit; and
• a three-page statement setting out the issues and the party’s position on each issue.

No Jury Trials

Jury trials will no longer be permitted in rule 76 actions. However, a party may deliver a jury notice in claims arising from slander, libel, malicious arrest, malicious prosecution, and false imprisonment. If a jury notice is delivered, these claims will continue as an ordinary action. If the jury notice is subsequently struck out, then the action is to be continued under Simplified Procedure.

It is important to note that the transition rules indicate that this change does not apply to an action where the jury notice has already been delivered before January 1, 2020.

Maximum Trial Length

Trials under the Simplified Procedure cannot exceed five (5) days. The trial judge has no discretion to extend the duration of the trial.

Summary Trials Only

In an effort to streamline the process, trials will proceed by way of a “summary trial.” Specifically, trials will go forward by way of the agreed trial management plan.

Previously, parties could agree to elect whether the trial shall be conducted as a summary trial or as an ordinary trial, which included testimony from witnesses at the trial hearing. This is no longer available with matters proceeding by way of the Simplified Procedure.

Trials will proceed as follows:

1. Before the presentation of evidence, each party may make an opening statement.
2. The plaintiff may adduce evidence, including any expert evidence, by affidavit and under rule 31.11 (reading in discovery evidence).
3. A party who is adverse in interest may cross-examine the deponent of any affidavit served by the plaintiff.
4. The plaintiff may conduct a re-examination of any deponent who is cross-examined.
5. When any cross-examinations and re-examinations of the plaintiff’s deponents are concluded, the defendant may adduce evidence, including any expert evidence, by affidavit and under rule 31.11.
6. A party who is adverse in interest may cross-examine the deponent of any affidavit served by a defendant.
7. A defendant may conduct a re-examination of any deponent who is cross-examined.
8. When any cross-examinations and re-examinations of the defendant’s deponents are concluded, the plaintiff may, with leave of the trial judge, adduce any proper reply evidence.
9. After the presentation of evidence, each party may make oral argument.

Restrictions on Costs and Disbursements

A party to an action under the Simplified Procedure will be limited to recover costs up to $50,000, and disbursements up to $25,000, exclusive of HST (subject to provisions of any other Act or the existing adverse consequences under rule 76.13).

This change only applies to cases commenced after January 1, 2020.

Commentary

In 1996, the Ontario government introduced the Simplified Procedure in an effort to lower legal costs and reduce delays within the court system.

The Simplified Procedure, in theory, is a streamlined and less costly process for resolving certain civil actions in the Superior Court of Justice. This process is beneficial, especially for straightforward matters, as it is a less complicated process.

The recent changes introduced by the Ontario government are clearly intended to expand the goals of the Simplified Procedure. With the increase in the monetary jurisdiction and the elimination of juries, it will allow many potential claimants an opportunity to pursue their claim in a simpler, less expensive and more expeditious process.

However, it remains to be seen whether there will be significant change within all areas of law, such as personal injury claims, due to the complexity of certain issues and the introduction of the new limit in costs and disbursements.

For example, parties will have to strategically contemplate and consider the use of multiple experts, given the cap on disbursements.  As such, it may establish a greater incentive for plaintiffs to claim for a higher amount in the ordinary procedure and risk a jury trial. Nevertheless, it will be interesting to see how many new and existing claims will proceed under the new Simplified Procedure process.

Conclusion

Parties should consider and be aware of the changes mentioned above to the Simplified Procedure, as the Ontario government has introduced substantial changes to the process. These amendments will raise a myriad of strategic considerations for both plaintiffs and defendants.

• In October 2019, Rogers Partners celebrated its 25^th anniversary with many special guests at the Royal York. Thank you to everyone who’s played a part with our firm over these past 25 years!
• An article by Tom Macmillan was published in The Lawyer’s Daily in October 2019. The article is called “Differentiation allowed to determine risk in insurance”.
• In October 2019, Brian Sunohara and Colleen Mackeigan were successful in a hearing before the Workplace Safety Insurance and Appeals Tribunal. Kudos to Colleen for her hard work!
• In October 2019, Jocelyn Brogan wrote an article that was published in The Lawyer’s Daily. The article is called “Taking away the plaintiff’s right to sue”. It’s a very helpful primer on issues that arise in WSIAT applications.
• Brian Sunohara also wrote an article that was published in The Lawyer’s Daily in October 2019. Brian’s article is called “Delay: Jordan’s big effect on civil litigation”.
• In November 2019, David Rogers spoke at Osgoode’s 15^th Annual Personal Injury Law & Practice conference. David’s topic was “Will Failure to Admit Liability in a Timely Fashion Give Rise to Punitive Damages? The Law after McCabe”. Carol-Anne Wyseman co-authored a paper with David in conjunction with this presentation.
• Brian Sunohara wrote an article in November 2019 called “Defendant Liable for Plaintiff Jumping out of Bus”. The article was published in the Lawyer’s Daily.
• We’re pleased to welcome Modasir “Mo” Rajabali to the firm as an associate lawyer. Mo started with us in November 2019.
• Rogers Partners volunteered at The Advocates’ Society Santa Claus Parade Party in November 2019. To the delight of many children, Micah Pirk O’Connell played a very convincing Santa Claus, and Colleen Mackeigan and Matthew Umbrio were elves! Tom Macmillan was one of the organizers of the event.
• We had a fun employee appreciation wine & cheese in December 2019. A huge thank you to our employees!
• In December 2019, Mo Rajabali, Ankita Abraham, and Micah Pirk O’Connell attended an interesting seminar on concussions that was hosted by one of our clients.
• Rogers Partners is delighted to participate in the Salvation Army toy drive. Special thanks to Nancy Buronyi for organizing this event at our firm for the past 25 years!
• We had our annual firm holiday party in December 2019. It was a great time! Gemma Healy-Murphy and Micah Pirk O’Connell showed their singing talent in a marvellous duet. Tom Macmillan was the master of ceremonies and DJ. We learned that Tom is a huge fan of the popular 1990s group, Ace of Base – who knew! Amazing work by Lorraine Kelly and Anita Varjacic in organizing the party! Click here for lots of photos.
• Ugly holiday sweater day is coming up at Rogers Partners. Kevin Adams had the ugliest sweater last year, and the challenge is on to dethrone him!
• In January 2020, Brian Sunohara will be speaking at The Advocates’ Society Tricks of the Trade conference on Surveillance and Social Media Evidence. Stephen Ross is a co-chair of this conference.
• In April 2020, Anita Varjacic will be presenting at the Ontario Bar Association’s Anatomy of a Trial conference. Anita will be conducting a demonstration of an examination-in-chief of a defence neuropsychology expert.
• For regular updates on the law and our firm, please visit the RP Blog.

T’is the season for many things.

Yes, of course, it’s the season of festive gatherings, gift-giving and all the feelings espoused in the holiday music playing overhead (or, if you subscribe to a more cynical perspective, the season of crowds, overindulgence and all of the hassles inherent of winter). No judgement either way.

If you’re anything like me, though, it’s the season of wondering where 2019 went. No doubt my saying that the year flew by raises the ire of cliché-haters everywhere but, really, was it not just yesterday that we were bracing for a polar vortex and discussing whether the danger of chair-tossing from a high-rise balcony was not simply a matter of common sense? As it turns out, no – both were events of over 10 months ago now.

From a legal perspective, it can be easy to lose track of the number of developments over the course of any given year. It’s likely understandable – case law, unlike, say, Raptors’ championships or elections, is churned out on effectively a daily basis from not one, but multiple levels of court.

So, for the sake of appreciating some of those developments over the blur of the past 11 months, here are some of the highlights of 2019 (from my perspective):

Limitation Periods

Two decisions appear to call into question reliance on what would have been thought to be statutorily-mandated limitation periods.

First, a majority of the Supreme Court in Pioneer Corp. v. Godfrey[1] held that the discoverability rule, while not a rule of universal application to limitation periods, is a rule of construction to aid in interpreting statutory limitation periods.

The resulting take-away is two-fold: absent clear legislative language to the contrary, discoverability applies where a statutory limitation period runs from the accrual of a cause of action or the plaintiff’s knowledge of injury, even if the statutory wording does not explicitly speak to such events; discoverability does not apply where a statutory limitation period runs from a fixed event, unrelated to the accrual of a cause of action or the plaintiff’s knowledge of injury.

While Pioneer Corp. dealt with a limitation period under the Competition Act, the decision’s application in Tomec v. Economical Mutual Insurance Company[2], may be more relatable.

Although the statutory wording at issue in Tomec (under the Statutory Accident Benefits Schedule) appeared to provide for a hard limitation period being two years after an insurer’s “refusal to pay the benefit claimed”, the Court of Appeal held that such a refusal is inextricably tied to the claimant’s cause of action, such that discoverability applies to the limitation period outlined in the SABS.

In the result, the Court of Appeal permitted the claimant’s appeal of a denial of benefits some five years after the denial – a seemingly concerning outcome for insurers.

Surveillance

While the potential to use surveillance for impeachment purposes appeared to be somewhat tempered after Iannarella v. Corbett[3], the Court of Appeal helpfully clarified its use as substantive evidence at trial and the criteria for admissibility for that purpose (distinct from its use for impeachment).

The Court articulated that the relevance of surveillance as substantive evidence is not diluted simply because the plaintiff contends that the surveillance is consistent with his or her stated abilities, as the surveillance can still dictate the findings of a trier of fact as to the nature and degree of an alleged impairment.

The Court further held that the admissibility of surveillance is not an all or nothing exercise, with each piece of video evidence to be considered in a “discrete and granular assessment”.

Moreover, and contrary to arguments advanced by plaintiffs (and sometimes accepted), the Court effectively held that gaps in surveillance footage do not take away from its accurate depiction of a witness’ activities.

Prejudgment Interest

Two years after the Court of Appeal’s thorough consideration of the prejudgment interest rate for both non-pecuniary and pecuniary damages in auto cases in Cobb v. Long Estate[4]  in light of changes to the Insurance Act, the Court considered the issue in the non-auto context in MacLeod v. Marshall[5].

Despite rule 53.10 of the Rules of Civil Procedure stating that the prejudgment interest rate on non-pecuniary damages in personal injury actions is 5% per year, the Court held that using 5% as the default prejudgment interest rate is not correct in law.

The Court indicated that the market interest rates need to be considered when judges exercise their discretion under section 130 of the Courts of Justice Act with respect to interest to be awarded. In the face of much lower market interest rates over the past two decades than 5%, this is a positive development for insurers.

Summary Judgment

It may be more fitting to speak of the watering down of summary judgment. Approaching six years since the Supreme Court’s decision in Hryniak v. Mauldin[6], it seems that the Court’s encouraged “culture shift” with respect to the efficient disposition of claims may not necessarily be taking root.

In Farooqi v. Lorenzo[7], a summary judgment motion sought by a defendant in a multi-party motor vehicle accident action, where said defendant’s liability was arguably a discrete and extricable issue, was not even permitted to be scheduled, on the basis of it being a partial summary judgment motion creating the risk of duplicative proceedings or inconsistent findings of fact.

In Hubert v. Ladha[8], also a summary judgment motion brought by the defendants in a motor vehicle accident action, the motion judge suggested that the “culture shift” articulated in Hryniak, necessary to facilitate timely and affordable access to justice, was not an issue arising from motor vehicle litigation.

In support of this suggestion, the motion judge alluded to the availability of compulsory auto insurance, as well as fee arrangements and adverse costs insurance available to plaintiffs.

The position seems hardly in keeping with the principles outlined in Hryniak which spoke to a systemic access to justice issue, and, moreover, fails to consider the potential implications of rampant motor vehicle accident litigation (such as on insurance premiums, and the like).

While it’s not that summary judgment is an unheard of remedy at this point, decisions such as Farooqi and Hubert certainly suggest that the concerns and guidance of the Supreme Court in Hryniak may, unfortunately, be being misunderstood.

As the number of such decisions grows, and as the potential certainty of summary judgment motions becomes more of a toss-up, it seems the courts may be on course to reverting to a pre-Hryniak state altogether.

Summing Up

Could I go on? Probably, but we may be here all day.

The fact is that the Ontario Superior Court of Justice alone will have released over 3700 decision by year’s end. Distilling those and the hundreds of appellate decisions released to a handful seems to be an exercise in futility. It’s one, however, that for me, at least, serves as a reminder that the year really did not pass by as fleetingly as it seems.

Merry Christmas/Happy Holidays and a Happy New Year to all!

[1] 2019 SCC 42.

[2] 2019 ONCA 882.

[3] 2015 ONCA 110.

[4] 2017 ONCA 717.

[5] 2019 ONCA 842.

[6] 2014 SCC 7.

[7] 2019 ONSC 2547.

[8] 2019 ONSC 5542.