“Sharon’s Case Law Review” #2

334C0154c (1000x1500)My blog is a summary of recent case law, mainly in the area of personal injury. It is my personal take on cases that I find relevant, or sometimes simply entertaining. I hope you enjoy reading it.

I try to post a new summary every month or two, but I make no promises. If you want to be notified when a new posting comes out, just send me an e-mail at sshore@blouindunn.com, or follow Blouin Dunn on Twitter at @BlouinDunn.

Sharon Shore
Blouin Dunn LLP

MVAs

Garic v. Mack Trucks Canada et al, 2014 ONSC 3103 (CanLII), http://canlii.ca/t/g6zdm – discoverability, adding a defendant

The plaintiff was driving a dump truck owned by her husband. She was injured when one of the axles gave way and the truck went into a ditch. She sued all the companies involved in manufacturing and maintaining the truck, with her husband as an FLA claimant. Six years after the date of loss, the plaintiff and her husband had separated, and she brought a motion to add him as a defendant, on the basis of discoverability and fraudulent concealment.

The judge did not buy any of the plaintiff’s arguments. She had said that a late statement from one of the other defendants made it clear that it was her husband who was responsible for maintaining the truck, and she had therefore only discovered a potential claim against him when she got that statement. The judge found that her husband’s role had been within her contemplation right from the start, by the fact that she had named the repair shop as a defendant and had deposed that she relied on her husband to take care of the maintenance. The judge said that “case law has established that to discover a claim the plaintiff must only have sufficient facts upon which to support an allegation that there is a cause of action, and it is not necessary for the plaintiff to have discovered complete evidentiary support to make the claim winnable.” The claim was therefore discoverable within the limitation period.

The plaintiff also tried to argue that there had been fraudulent concealment by her husband. The judge said that this doctrine was an equitable one meant to prevent unscrupulous defendants from benefiting from a limitation period. In order to invoke this doctrine, the conduct in question had to be unconscionable, and there was no evidence of that. The plaintiff’s motion to add the husband was dismissed.

Sharon’s comments: A cynic might say that the plaintiff’s discoverability of a potential claim against her husband began on the day they decided to end their marriage…
________________________________________
Morant v Sun life Assurance Company of Canada, 2014 ONSC 2876 (CanLII), http://canlii.ca/t/g6zz8 – settlement

At mediation, the plaintiff settled her AB claim for $110K, and her tort claim for $250K. About three weeks later, she changed her mind and tried to get out of the agreement. The judge said that she was properly represented, there was no evidence of any incapacity, and getting “buyer’s remorse” was not a sufficient reason to allow her to resile from the settlement.
________________________________________
Gilbert v. South et al., 2014 ONSC 2413 (CanLII), http://canlii.ca/t/g6ldb – threshold

The defendant brought a threshold motion at the conclusion of the jury trial. It was not disputed that the plaintiff had only returned to lighter duties at work, and that he suffered ongoing back pain that affected his activities; the issue was whether these problems were attributable to pre-existing problems or to the MVA.

The jury obviously felt this was a threshold injury, since it awarded the plaintiff general damages of $70K gross ($40K net of the deductible), $57K for future care, housekeeping of $85K, past income loss $6K, and future economic loss of $250K. The judge agreed with the jury, and found that the plaintiff’s chronic low back pain was caused by the MVA. The threshold was met.
________________________________________
Casselman v. Casselman, 2014 ONSC 1267 (CanLII), http://canlii.ca/t/g682k – unidentified

The plaintiff was a passenger in a car driven by her son, and she was injured in an MVA allegedly caused by an unidentified driver. She was insured with Aviva, and her son was insured with Economical. Her lawyer sued the son and her own insurer, Aviva, but she did not sue the driver’s insurer, Economical. The plaintiff brought a motion to attempt to add Economical, but it was brought more than two years after the date of loss. Her arguments were that the failure to name Economical was an inadvertent omission on the part of the lawyer, that there had always been an intention to claim against it, that Economical had been put on notice, and there was no prejudice notwithstanding the expiry of the limitation period. Aviva opposed the motion on the basis that it wanted Economical to be substituted for it, not named as an additional defendant.

The judge held that there was no prejudice to Economical, and that both insurers might have to provide coverage depending on whether it was unidentified, uninsured, underinsured, etc. Economical was added as a defendant.
_______________________________________
OCCUPIERS’ LIABILITY

Manzoor Ur-Rahman v. Oma Devi Mahatoo et al., 2014 ONSC 2636 (CanLII), http://canlii.ca/t/g6r6c – slip and fall

This was a slip and fall on snow and ice, which left the plaintiff with a broken hip and allegedly severe psychological issues. The defendant was noted in default. The judge awarded damages as follows: Generals $90K, past loss of income $90K, future income loss $53K, handyman services $39.2K, future care $1.5K, and OHIP’s subrogated interest of $980. The total awarded, before PJI and costs, was $274.6K.

Sharon’s comments: If the defendant was noted in default, it probably won’t matter whether the judgment is for $3K or $300K, since the plaintiff is unlikely to ever collect any of it.
_______________________________________
Seif v. City of Toronto, 2014 ONSC 2983 (CanLII), http://canlii.ca/t/g6v8q – statutory notice, municipality

This was a slip and fall on a sidewalk, where the plaintiff broke her wrist. She gave notice to the City four months later, notwithstanding the statutory requirement that notice must be provided within 10 days. The City brought a motion for summary judgment, on two grounds: 1) the plaintiff was out of time given the 10 day notice requirement, and 2) her notice contained a general description that was not specific enough for the City to have been able to properly inspect the area.

The judge found that the general description provided by the plaintiff was adequate enough for a layperson. However, the judge also found that although the 10 day rule can be waived where a person’s delay is the result of their injury (e.g. they were hospitalized), it was “…not designed to extend the time for a plaintiff whose delay is a result of their indecision or their apathy toward issuing a claim.” The judge said this was unfair, but since the plaintiff did not have a good explanation for the delay, her action had to be dismissed.

Sharon’s comments: It seems that most of the time, judges go to great lengths to find a reason to not apply this 10-day notice period requirement, so as not to deprive the plaintiff of the opportunity to bring his or her action. It is refreshing to see a judge who considers and properly applies the law.
________________________________________
Zonneville v. Andrews, 2014 ONSC 2380 (CanLII), http://canlii.ca/t/g6psn – examination of non-parties

The plaintiff became a quadriplegic after a fall from a pool ladder, and he sued various parties for $10M. The records indicated that he had told several treating health care providers that he had been diving. Plaintiff’s counsel refused to permit the defendant to speak with these providers, so the defendant brought a motion to examine the non-parties. The plaintiff opposed the motion and argued that the evidence from these parties would be inadmissible at trial as it was hearsay.

The Master granted the defendant’s motion. She found that admissibility at trial was not the test, but whether the court had reason to believe the non-parties had information relevant to a material issue in the action. She wrote “The defendant is entitled to know the case it has to meet prior to trial. This is one of the purposes of examinations for discovery. Here, the defendant is entitled to know prior to trial all of the facts surrounding the accident in order to properly defend the action, properly prepare for trial and to assess the defendant’s position. If the defendant were required to proceed to trial without having examined the non-parties, it would have to call numerous witnesses to give evidence on this issue which would, undoubtedly, lengthen the trial unnecessarily. Furthermore, having the testimony of non-parties prior to trial may promote settlement.”
________________________________________
Alladina v. Calvo, 2014 ONSC 2550 (CanLII), http://canlii.ca/t/g6rl6 – defence IME

The defence brought a motion for a psychiatric IME. The plaintiff opposed the motion, and moreover, tried to disqualify the proposed expert, Dr. Reznek, on multiple grounds. Dr. Reznek had his own counsel there, as his professional integrity was being very much maligned. The defence medical was ordered, the defendant got $7K in costs, and even Dr. Reznek got costs of $4K. It looks like the essence of the plaintiff’s arguments were “based on my personal experience in three matters in the early to mid-2000s, Dr. Reznek is biased”; “based on a selection of cases that I have cherry-picked, Dr. Reznek is biased”; “the fact that Dr. Reznek took offence at the allegations leads to a reasonable apprehension of bias”; and “I submit that Dr. Reznek supposes that insurance companies might not want to hear about reports in which he finds that the plaintiff has suffered psychiatric damage”.

The Master accepted none of the plaintiff’s arguments, saying in part: “The approach proposed by the Plaintiff would ask the court to make a determination of competence based on a plaintiff lawyer’s assessment of a health practitioner’s methodologies. For the reasons I discuss above, I do not accept that such an approach would be appropriate.”

Sharon’s comments: The plaintiff’s arguments appear patently absurd, not to mention that everything he suggests about a defence expert physician would apply equally (or more, perhaps) to the doctors who work mainly for the plaintiff bar. A worthwhile read.
________________________________________
INSURANCE

Sanofi Pasteur Limited v. UPS SCS, Inc. et al., 2014 ONSC 2695 (CanLII), http://canlii.ca/t/g6q5l

Sanofi stored $8 million worth of vaccines at a UPS facility, in a temperature-controlled environment, at a cost of about $9K per month. Not surprisingly, someone at UPS was negligent in controlling the temperature, and the vaccines were ruined. Sanofi sued UPS and others. The contract between them contained a clause requiring Sanofi to have an all-risks policy on the vaccines that included UPS as an additional insured. Sanofi’s insurer paid the loss, and then brought a subrogated action against UPS.

The judge found that Sanofi’s covenant to insure relieved UPS of any liability, even for its own negligence. The judge said, “a covenant to insure operates for the benefit of both parties to the contract, ensuring that the promisee is relieved of liability for the loss and that the promisor will be indemnified for the loss. Given that this is a subrogated action, the Plaintiff has indeed been indemnified; the other half of the covenant’s bargain – relieving SCS of liability – must also be enforced.”

Sharon’s comments: There is now a substantial body of case law that stands for the proposition that these clauses will be enforced.
________________________________________
Neely v. MacDonald, 2014 ONSC 2866 (CanLII), http://canlii.ca/t/g6v8m

A well-known Toronto insurance defence firm held its annual golf tournament at a Clublink course. In what can only be described as irony, a passenger in one of its golf carts was injured when the driver lost control going down a steep hill. The injured golfer sued the golf cart driver, the golf club, and Clublink. Clublink in turn third partied the law firm (more accurately, the corporation to which the law firm belonged, called CLC). The contract between CLC and Clublink had a hold harmless clause in favour of Clublink. CLC brought a motion for a determination that it did not owe Clublink an indemnification, arguing that the hold harmless clause did not expressly cover claims for personal injury or claims based on Clublink’s own negligence.

The judge was not impressed with the motion, saying that “It is somewhat rich to hear an insurer complain about the onerous, unfair burdens of contractual exclusions”. He determined that “the liability claimed in this case arises out of the normal use of a golf cart as driven every day by thousands of golfers at golf courses. CLC undertook responsibility for its guests’ understanding the safe operation of the carts. It undertook to indemnify Clublink from any ‘claims of any nature that may arise from or through the use of a golf cart.’ The most obvious claims are personal injury claims arising out of accidents in which case Clublink’s liability is necessarily tortious… Clublink may well be liable to the plaintiff; that is an issue for trial. In my view, however, CLC has agreed to indemnify Clublink for that risk.”

Sharon’s comments: Same as above. The courts will enforce these clauses.
________________________________________
OTHER

Woodbury v. Woodbury, 2014 ONSC 3149 (CanLII), http://canlii.ca/t/g6zz3 – boat injury, ungrateful plaintiff

Woodbury Senior drove his boat at high speed into a stationery boat operated by Hamilton. Hamilton and his passengers honked, waved, and screamed to try to get him to stop, to no avail. Hamilton dove into the water to save Woodbury Junior, who was severely injured and unconscious. Junior then sued his father, who was noted in default, and Hamilton. Hamilton brought a successful motion to bifurcate the trial, but Junior appealed. On appeal, aside from noting in the history of the proceeding that Junior had sued the very man who saved his life, Justice Morgan said that bifurcation was the only way to secure the just, most expeditious and least expensive determination of the proceeding on its merits. The appeal was dismissed, so the trial would still proceed on a bifurcated basis.

________________________________________
Ferreira v. Marcos, 2014 ONSC 1536 (CanLII), http://canlii.ca/t/g6k9m – the neighbour from hell

Ferreira did substantial exterior renovations. Before starting, he obtained the approval of his neighbours, including Marcos. At some point, Marcos decided he did not like the work that was being done, and he began a steady campaign of bullying and threats against Ferreira. Ferreira contacted the police on multiple occasions. This angered Marcos, so he in turn initiated a private criminal complaint against Ferreira for mischief and uttering threats (the very things he had been doing to Ferreira). Ferreira was emotionally impacted by these criminal charges, and sued Marcos for malicious prosecution.

The trial judge found Marcos not to be credible, and accepted the evidence of Ferreira in every respect, holding that the elements of the tort of malicious prosecution were met. Ferreira was awarded $40,000 in general damages.

Sharon’s comments: If Marcos does not pay the judgment, Ferreira can put a lien on Marcos’ home. If Marcos was a mean-spirited bully before, I can only imagine how he might react to that…
________________________________________
Victoria Mendes et al. v. Blaisdale Montessori School, 2014 ONSC 3178 (CanLII), http://canlii.ca/t/g70t2 – the parent from hell

The four year old pre-schooler was a behavioural problem, so the private Montessori school he attended asked him to leave. The child, via his mother, sued for breach of contract and breach of fiduciary duty. The judge was openly scornful of both of the lawyers on this case, chastising them for failing to quote relevant law (Hyrniak) or submit proper affidavits (both contained extensive hearsay and were from people with no knowledge of the matter). The judge said:

o First, the plaintiff’s entitlement to be at the school was contractual. The school was entitled to require him to withdraw without notice. The school’s duties to the child are tempered by the circumstances. It is trite law that not everything done by a fiduciary is necessarily done in a fiduciary capacity.

o Second, the plaintiff does not deny the misbehaviour alleged by the school principal. The very lengthy list of aggressive acts reported over a very short time frame readily engaged the school’s duties not just to the plaintiff, but to other students too.

o Third, the plaintiff’s mother’s allegations that other students misbehaved are generally irrelevant except to the extent that they might lead to an inference that the plaintiff was innocent of any misbehaviour or that he was provoked. Common sense suggests the legal principle “it takes two to tango” would seem to apply.

o Fourth, the school reports that the plaintiff’s mother was utterly unwilling to engage constructively. Her own letter bears this concern out completely.

o Fifth, the plaintiff has not delivered any evidence on this motion to deny the allegations in the school’s correspondence or to establish any other factual basis for the fiduciary duties alleged.

o Sixth, the plaintiff has not put forward any evidence of any damages having been suffered at all. It is not self-evident to me that a 4 year old suffers compensable loss from being asked to withdraw from pre-school or from the school failing to find an alternative pre-school – even assuming that it had such a duty (note: the school refunded the tuition).

o Seventh and perhaps most significant, the allegations in paragraph 7 of the Statement of Claim and the nature and scope of the fiduciary duties alleged by counsel, without any supporting law, do not strike me as fiduciary in nature or compensable at the suit of the child if at all.

As you can guess, the plaintiff’s action was dismissed, and the defendant was awarded $24,294 in costs.

________________________________________
White v. 123627 Canada Inc., 2014 ONSC 2682 (CanLII), http://canlii.ca/t/g6zxh – privilege

The defendant in this slip and fall action inadvertently sent the plaintiff a statement from Schedule B of its Affidavit of Documents. Plaintiff’s counsel (Wallbridge & Wallbridge) not only kept the statement, he tried to examine the defendant on it – which was when defence counsel first learned that it had been disclosed. Plaintiff’s counsel subsequently refused to return it in spite of multiple requests. The defendant brought a motion seeking removal of plaintiff counsel, among other relief. Plaintiff’s counsel set the matter down for trial, opposed the motion, and brought its own motion to obtain a summary of this statement and all others in the defendant’s possession.

It appears that the judge was not too pleased with the conduct of plaintiff’s counsel. He denied leave to the plaintiff to bring its motion as the matter had already been set down for trial, removed the law firm as plaintiff’s counsel of record, ordered the firm to destroy all privileged documents it had in its possession, forbade it to discuss the contents of those documents or from using it in any related proceeding, had the related portion of the discovery transcript ordered expunged, and because the judge evidently did not trust the law firm, ordered it to confirm to the court in writing that it had complied.

Sharon’s comments: Nice to see misconduct by counsel get the treatment it deserves.

 

 

 

“Sharon’s Case Law Review” #1

334C0154c (1000x1500)To my clients:

I like to send out a brief summary of recent case law every month or two (or as time permits). It is not a high-level analysis, just my personal take on cases – mainly BI – that I think are relevant, or sometimes simply entertaining. Below is the first one I’ve done since joining Blouin Dunn.
I hope you find it informative and useful. Please feel free to forward it on. If someone wants to be added to my mailing list, just e-mail me at sshore@blouindunn.com (with this new anti-spam legislation, I can only send this to those who want it). And if I’ve missed anyone, I apologize in advance.

I hope you enjoy reading “Sharon’s Case Law Review”.

Sharon Shore
Blouin Dunn LLP

OCCUPIERS’ LIABILITY

Souliere v. Casino Niagara, 2014 ONSC 1915 (CanLII), http://canlii.ca/t/g6bpm

This was a slip and fall in a self-serve restaurant located inside Casino Niagara. Damages had been agreed on (the amounts are not mentioned in this decision), so this was a trial on liability only. A cashier testified that she saw a customer drip something onto the floor and that the plaintiff came along and fell about three seconds after. The judge found that the restaurant had a reasonable system in place, and that even if there had been non-slip mats, they would not have covered the area where the plaintiff slipped. The action against Casino Niagara was dismissed.

Sharon’s comments: Occupiers’ liability cases depend on the specific circumstances of a case and who the judge is, which is why the outcome of such trials is always unpredictable. At least this time, common sense triumphed.

________________________________________

Pammett v. Ashcroft, 2014 ONSC 2447 (CanLII), http://canlii.ca/t/g6mg3

This was a slip and fall on snow and ice outside a Tim Horton’s. The plaintiff originally sued only the Tim Horton’s franchisee, a tenant of a strip mall, and only added the landlord and the snow removal contractor as defendants after the expiry of the limitation period. The two added defendants brought a summary judgment motion.

The evidence showed that the plaintiff, through her lawyer, knew about the contractor and the landlord; in fact, the franchisee had commenced third party actions against the contractor and landlord when it defended the main action. Also, the information about snow removal was contained in the lease and the plaintiff had a copy of it.

The Master agreed that dismissing the plaintiff’s action against the landlord and the contractor would be an injustice to the plaintiff, but said that nonetheless, the existence of these parties had been discoverable within the limitation period. The action against the landlord and the snow removal contractor was dismissed.

Sharon’s comments: A personal injury lawyer who does not turn his/her mind to the likelihood that a strip plaza would retain a snow removal contractor, and who does not do a title search to see who owned the property where his/her client fell, is a lawyer who should be looking for another line of work.
________________________________________

Wiseman v. Carleton Place Oil Inc., et al, 2014 ONSC 1987 (CanLII), http://canlii.ca/t/g6bqm

Another case where the occupier and the snow removal contractor brought a summary judgment motion on a slip and fall outside of a Tim Horton’s, but this time on liability. The judge was none too pleased about it, commenting that this was a simplified procedure matter that ought to have been resolved in a one-day trial, and that this motion took a half day to argue and involved hundreds of pages of materials.

Having expressed that view, the judge then dismissed the occupier’s motion, ruling that it was an issue for trial as to whether the occupier had ensured that its pedestrian access was designed safely. He also said that the defendants, in pursuing this motion, had incurred unnecessary expense which was unfair to the plaintiff. However, the judge did throw a bone: he found that the snow removal contractor had met all of its contractual obligations and dismissed the action as against it.

Sharon’s comments: Notwithstanding Hyrniak, my view is that occupiers should consider summary judgment motions only after very careful consideration, and only where their case is virtually airtight. As each such case is decided based on the specific circumstances, a plaintiff can almost always raise issues that muddy the waters. On the other hand, this case shows that if one is a contractor that has met all of its contractual obligations, a summary judgment motion might be a very appropriate strategy for an Occupiers’ Liability claim. This is something for insurers to consider where there are co-defendant occupiers who refuse to let a non-negligent contractor out of the action.

________________________________________

Saisho v. Loblaw Companies Ltd, 2014 ONSC 1949 (CanLII), http://canlii.ca/t/g6bqh

An elderly man was shopping in the grocery store, when he was struck by a shopper pushing an overloaded shopping cart (i.e., stacked higher than eye level). He went flying, hit his head, and ultimately became quadriplegic before dying a couple of years later. The plaintiff’s estate and the widow sued the other shopper and Loblaw. The basis for the claim against Loblaw was that it had not meet its responsibility under the Occupiers’ Liability Act to ensure its customers’ safety, in that it should have prevented the customer from overloading the shopping cart. One might think that was a bit of a stretch, but the negligent shopper had no assets and Loblaw was the only pocket around. As long as the plaintiffs could get at least 1% liability on Loblaw, Loblaw would be jointly and severally responsible for 100% of the damages.

Luckily for Loblaw, the plaintiff’s action against it was dismissed. Damages would have been significant, assessed by the judge as follows: OHIP subro $262K (which I know for a fact was negotiated down from a much higher figure), general damages of $160K, $55K for the FLA claim, and $63K for pecuniary damages.

________________________________________

MOTOR VEHICLE ACCIDENTS

O’Connell v. The Personal Insurance Company, 2014 ONSC 1469 (CanLII), http://canlii.ca/t/g68s8

The defendant had loaned his car to his girlfriend, whom he believed had a valid driver’s license. She was in an accident, and it was discovered that she only had a G1 license. The Personal denied coverage on the basis that its insured had breached a statutory condition of the OAP1. The insured then brought a motion that his insurer owed him both a defence and indemnification.

The judge found that the insurer did indeed owe its insured a defence and indemnification, and that there was no evidence that he had breached a statutory condition. The judge said: “In this case the applicant insured and the driver were boyfriend and girlfriend and had been for some five months. That, in my view, is a relationship of trust. The applicant knew Ms. Smith had a license because he had seen her use that license as a means of official identification, and it looked no different than his own license. He had also been in a car when she was the driver, and had heard anecdotes involving driving. Very significantly she never informed him at any time pre-accident, including the day she borrowed the car, that her license had limitations. There is no evidence he had any basis to suspect that she would withhold that crucial information from him, and it would be reasonable for him, in their circumstances, to assume she would not do that.”

________________________________________

Economical Insurance v. Nationwide Mutual Insurance, 2014 ONSC 2080 (CanLII), http://canlii.ca/t/g6g0s

An interesting fight between insurers. Ms. Fink caused an accident which injured Ms. Williams. Even though she was insured, Fink told the police she was uninsured, and was charged. Williams correctly sued her own insurer, Economical (ACTION #1). Economical paid Williams $186K and got a default judgment against Fink.

Williams’ passenger brought a separate action against Williams and Fink (ACTION #2). Economical, in the course of defending Williams in Action #2, learned that Fink in fact did have insurance. However, as these were two separate claims with two separate adjusters, the adjuster in Action #1 was unaware that Fink had insurance which could satisfy the default judgment it had against her. The adjuster in Action #1 learned of this coincidentally, when a team leader who had been the adjuster on Action #1 read the file on Action #2.

When Economical tried to collect its judgment from Fink’s insurer, Nationwide, Nationwide refused to pay, and Economical brought an action against it. Nationwide argued that Economical did not exercise due diligence, and it had actual knowledge of the existence of insurance several years earlier when it was defending Williams in the passenger’s action.

The judge said that Economical had been reasonably diligent, and granted judgment to it. No reasonable insurer would expect a driver in an accident to deny the existence of valid insurance. Secondly, since claims are handled separately, knowledge of insurance in one action did not translate to knowledge in a separate action.

________________________________________

COVERAGE

Rochon v. Rochon, 2014 ONSC 2337 (CanLII), http://canlii.ca/t/g6k8r

The son was tinkering with his car and through his negligence, started a fire that destroyed his parent’s home. The parents’ property insurer, Grenville, brought a subrogated action against the son’s auto insurer, Economical, for $148K. Grenville argued that the fire was caused by an “at-fault” party through the use and operation of a vehicle, and the auto policy should respond. Economical argued that the son was an unnamed insured on Grenville’s policy, and that an insurer cannot subrogate as against its own insured. The judge agreed with Economical and dismissed the action, without determining whether the fire arose out of the use and operation of a vehicle.

________________________________________

Kinkade v. 947014 Ontario Inc. c.o.b. as The Silver Dollar, 2014 ONSC 1599 (CanLII), http://canlii.ca/t/g67tr

The plaintiff was shot by a bar employee. The bar’s CGL insurer, Omega, denied coverage to the bar as the policy excluded claims arising out of the use of a gun. The bar brought a Rule 21 motion as to whether the insurer had a duty to defend it, and it also wanted to be able to retain and instruct counsel of its choice. The bar argued that a) the majority of the allegations did not relate to the use of the gun, but to the bar’s duty as occupier (i.e., training, supervising employees, failing to warn, failing to ensure safe premises, etc.), and b) its employee was off duty and it did not know he even had a gun.

The judge ruled that the exclusion clause was ambiguous, in that it did not specify who had to own or use the gun and how coverage was to be limited. Further, it was unclear whether concurrent causes of action were excluded. The judge granted the bar’s motion and ruled that the insurer owed a defence to the bar. However, given the potential conflict and the fact that the insurer might not owe the bar indemnification, the insurer was required to appoint and pay for the bar’s separate counsel.

________________________________________

MISCELLANEOUS 

Downing v. Reynolds, 2014 ONSC 2520 (CanLII), http://canlii.ca/t/g6lxf

Although this was an MVA case, this decision relates to a problem with an infant settlement. The plaintiff settled her claim in 2010, including an FLA claim by her minor daughter, for $700K all inclusive. The pre-trial judge had apparently felt that $25K was an appropriate amount to be set aside for the daughter, but this was never formalized or put into the release. The plaintiff’s then-lawyer – who is not identified – told defence counsel to send him the settlement funds, and said that he would hold the funds in trust until he got approval for the minor settlement. The defendant sent the money, and plaintiff’s counsel paid it out to his client except for $25K. He then never brought an application for judicial approval.

The plaintiff brought a motion to a) set aside the original settlement, on the basis that her daughter suffered catastrophic impairments (the daughter was an FLA claimant, and the alleged catastrophic impairment was from the “shock” of arriving on the scene and seeing her mother put into an ambulance), and b) to sever the daughter’s case. The defendant argued that the $700K settlement should be approved and that if the $25K kept aside for the daughter was not deemed sufficient, that any additional amount be reallocated from the $700K, or alternatively, that the entire settlement be put aside and the funds returned to the defendant.

The judge found that the funds could not be returned to the defendant as they had been paid to former counsel, who was not a party to the proceedings (although it looks like the defendant brought a separate action against former plaintiff counsel). The entire settlement was set aside – but the judge declined to sever the infant settlement. As the plaintiff was largely successful, she was awarded costs.

Sharon’s comments: This seems like a case of unjust enrichment to me. The plaintiff already got her money, and now she has another kick at the can. The defendant won’t get its $700K back except by litigating against the first lawyer, meaning it will be fighting an insurer and will be lucky to get 70 cents on the dollar – plus it will incur legal fees in the process. It may well have to pay something for the daughter’s FLA claim, and possibly something more to the plaintiff. This is a win-win for the plaintiff, lose-lose for the defendant – and all because of $25K and a sloppy plaintiff’s lawyer.

________________________________________

Foniciello v. Bendall, 2014 ONSC 2204 (CanLII), http://canlii.ca/t/g6g9f

The plaintiff in this MVA case alleged a severe brain injury, and wanted the jury struck on the basis that this was too complex for a jury. The essence of the argument seems to be that the plaintiff presented so well due to the nature of his injury that the jury might not understand how severe it actually was. The defendants argued that juries routinely hear brain injury cases, and asked that if the court was considering striking the jury, that the judge take a “wait-and-see” approach before doing anything, or bifurcate the trial and let the jury decide on liability. The judge accepted the plaintiff’s arguments, but allowed bifurcation.

________________________________________

Cannon v. Funds for Canada Foundation, 2014 ONSC 2259 (CanLII), http://canlii.ca/t/g6lxh

Sharon’s comments: No details necessary, only the first 3 sentences are relevant. This is what I call a succinct decision:

[1] Four class members, who opted out of a class proceeding more than a year ago, want to opt back in. While they were watching from the sidelines, class counsel achieved a multi-million dollar settlement with some of the defendants and stayed the third party claim. The four moving parties now ask that the court let them back into the class action.

[2] Opting out does not mean “wait and see.”

[3] The motion to opt back in is dismissed with costs.