Claim Against Brokerage Employee Struck

A Statement of Claim that seeks relief against an insurance broker and its employee must adequately distinguish the allegations made against the employee from those made against the company.

In ACI Brands Inc. v. Aviva Insurance Co. of Canada, the plaintiff, ACI Brands Inc., alleged that it was sold inadequate insurance coverage by the defendants. The defendants were an insurance company (Aviva Insurance Company of Canada), an insurance broker (Jones Brown Inc.) and an employee of Jones Brown Inc. (Stephen Smith).

The plaintiff’s Statement of Claim did not outline Smith’s role other than to say that he was the Jones Brown Inc. employee who had secured insurance coverage for ACI. The Statement of Claim did not differentiate the allegations made against Smith from those made against Jones Brown Inc. (the allegations were made against “the Broker and/or Smith”).

Smith brought a motion to strike the plaintiff’s pleading under Rule 21.

The court cited the Ontario Court of Appeal decision in ScotiaMcLeod Inc. v. Peoples Jewellers Ltd., which stated that, in order to hold an employee personally liable for his or her conduct, the employee’s conduct must demonstrate that the employee acted with a “separate identity or interest from that of the company so as to make the act or conduct complained of their own”.

Given that the Statement of Claim failed to differentiate Smith’s conduct from that of Jones Brown Inc., and thus failed to demonstrate that separate identity or interest, the court struck the claim as against Smith for disclosing no reasonable prospect of success.

Broad Definition of the Term “Accident”

In the decision VanBerlo v. Aim Underwriting Ltd., 2014 ONSC 4648 (S.C.J.), the Ontario Superior Court recently considered the meaning of the term “accident”. The plaintiff crashed while attempting to take off in his twin-engine aircraft when he was aware that only one of the two engines was functioning. Although he had never done this before, it was the plaintiff’s belief that the aircraft was capable of taking off with only one engine. Additionally, he felt that it was able to safely make the six-minute flight to his destination. The plaintiff sought to recover the damages to the plane under his Aircraft Policy of Insurance. The insurer argued that this did not fall under the definition of an "accident" and the policy was not triggered.

The Court reviewed the existing case law and concluded that the term "accident" is "an unlooked for mishap or occurrence”. Applying this definition, the Court found that an accident can occur where the conduct of the insured constitutes negligence and even gross negligence. In this case, the court held:

“It cannot be said, on the facts, that the plaintiff realized the danger of his actions and deliberately assumed the risk; nor can it be said that the plaintiff’s conduct rose to a level of recklessness or culpability such that the occurrence was no longer an accident.”

The insurance was policy was required to pay the damages sought by the plaintiff.