McKinnon J. of the Ontario Superior Court of Justice recently released a decision arising from a Rule 21 motion for determination of a question of law, namely whether an insurer owes a duty to defend homeowners arising out of a homeowner's insurance policy. The claim against the homeowners arose after they sold their house. The purchasers alleged misrepresentation on the part of the homeowners for failing to disclose the condition of the property. Poplawski v. McGrimmon, [2010] O.J. No. 33.
What I found interesting in this decision is the very helpful overview of the law on an insurer's duty to defend. Here are a few paragraphs from this overview:
There is a three step process to determine whether an insurer has a duty to defend its insured:
(a) Are the plaintiff's legal allegations properly pleaded?
(b) Are any claims entirely derivative in nature?
(c) Do any of the properly, pleaded non-derivative claims potentially trigger the insurer's duty to defend?
In considering whether a plaintiff's allegations are properly pleaded, courts are not bound by the legal labels chosen by the plaintiff. When ascertaining the scope of the duty to defend, a court must look beyond the choice of labels and examine the substance of the allegations contained in the pleadings. This does not involve deciding whether the claims have merit: the court need only decide, based on the pleadings, the true nature of the claims. A plaintiff cannot change negligence into an intentional tort simply through the choice of words.
In considering whether any of the claims potentially trigger the insurer's duty to defend, where the allegations of negligence constitute a separate tort and are not an attempt to "dress" intentional conduct as negligence, the insurer will be under a duty to defend: see Godonoaga (Litigation guardian of) v. Khatambakhsh, [2000] O.J. No. 2172 (C.A.) at paras. 28 and 32.
If there is any uncertainty as to whether a claim falls within the applicant's policy coverage, the uncertainty must be resolved in favour of the insured: see Co-Operators General Insurance Co. v. Murray, [2007] O.J. No. 2329 (S.C.J.) at para. 6.
A weekly update of cases pertaining to the practice of insurance defence.
May 10, 2010
May 3, 2010
7 Hour Discovery Rule Interpreted
Justice Templeton has recently addressed the new so-called "7 Hour Rule" that limits examinations for discovery, J. & P. Leveque Bros. v. Ontario , 2010 ONSC 2312.
The issue on the motion was whether leave should be granted to the plaintiff to conduct an examination for discovery of the defendants for a period of time in excess of seven hours.
At paragraph 16 of her decision, Templeton J. writes: The interests of justice do not require that the concept of effective representation trump the concept of cost-efficient and/or expeditious justice or vice versa; but they do require that these factors be balanced both jointly and severally by all participants in the process.
She also adds at paragraph 20: I am also of the view that in circumstances in which the time limit agreed upon in the Discovery Plan has expired and counsel is at a crucial point in his/her examination on an issue central or germane to the case, flexibility ought to be brought to bear and that further time to a maximum of one hour to continue and conclude the examination would not be unreasonable in the circumstances.
At a paragraph 21: In cases involving multiple parties, I would expect the excess of one hour to be deducted from the time available for that same party to examine another party to the litigation. In other words, to ensure that effective and cost-efficient justice is realized, counsel must adhere to their agreement with respect to the total length of the examinations but where there is more than one party, a leeway of one hour past the allotted time for the examination of one of the parties would not be unreasonable provided it is recovered from the examination of another party. This
flexibility allows counsel to be effective and to prioritize but at the same time cost-efficient in
the overall process.
In conclusion she granted the plaintiff 19 hours to conduct the examination for discovery since it was a multi-party action involving a number of different issues.
The issue on the motion was whether leave should be granted to the plaintiff to conduct an examination for discovery of the defendants for a period of time in excess of seven hours.
At paragraph 16 of her decision, Templeton J. writes: The interests of justice do not require that the concept of effective representation trump the concept of cost-efficient and/or expeditious justice or vice versa; but they do require that these factors be balanced both jointly and severally by all participants in the process.
She also adds at paragraph 20: I am also of the view that in circumstances in which the time limit agreed upon in the Discovery Plan has expired and counsel is at a crucial point in his/her examination on an issue central or germane to the case, flexibility ought to be brought to bear and that further time to a maximum of one hour to continue and conclude the examination would not be unreasonable in the circumstances.
At a paragraph 21: In cases involving multiple parties, I would expect the excess of one hour to be deducted from the time available for that same party to examine another party to the litigation. In other words, to ensure that effective and cost-efficient justice is realized, counsel must adhere to their agreement with respect to the total length of the examinations but where there is more than one party, a leeway of one hour past the allotted time for the examination of one of the parties would not be unreasonable provided it is recovered from the examination of another party. This
flexibility allows counsel to be effective and to prioritize but at the same time cost-efficient in
the overall process.
In conclusion she granted the plaintiff 19 hours to conduct the examination for discovery since it was a multi-party action involving a number of different issues.
April 21, 2010
Court Appeal Rules Summary Judgment is not available in Small Claims Court
Van de Vrande vs. Butkowsky, [2010] O.J. No. 1239 (C.A.)
The Court of Appeal has held that summary judgment is not available in Small Claims Court, clarifying an area where there were two separate lines of case law.
In this case, the defendant was retained to perform an assessment in the context of a custody dispute between the plaintiff and his spouse. The plaintiff alleged that instead of simply conducting and submitting an assessment, the defendant took on an additional role of mediator in the dispute. The defendant brought a motion seeking summary judgment and the court granted the motion pursuant to Rules 1.03 (2) and 12.02 of the Small Claims Court Rules, on the basis that in his capacity as a court appointed assessor, the defendant was immune from suit pursuant to the doctrine of expert witness immunity. The deputy judge also found that the action had been commenced outside of the applicable limitation period.
The Court of Appeal held that the absence of a summary judgment procedure in the Small Claims Court Rule is not a gap but rather a deliberate omission. It is not up to the court to read in such provision, since Rule 12.02 specifically addresses the ability to bring a motion similar to that contemplated by Rules 20, 21 & 76 of Rules of Civil Procedure. The court held that Rule 12 is similar to a Rule 21 motion, although it is worded more broadly and does not have the same prohibition on filing affidavit evidence. It involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be inflammatory, a waste of time or a nuisance.
Although the court has now clarified that summary judgment is not available in Small Claims Court, Rule 12 remains a valuable tool that can assist in disposing of cases that are without merit without the need to progress to a full blown trial.
The Court of Appeal has held that summary judgment is not available in Small Claims Court, clarifying an area where there were two separate lines of case law.
In this case, the defendant was retained to perform an assessment in the context of a custody dispute between the plaintiff and his spouse. The plaintiff alleged that instead of simply conducting and submitting an assessment, the defendant took on an additional role of mediator in the dispute. The defendant brought a motion seeking summary judgment and the court granted the motion pursuant to Rules 1.03 (2) and 12.02 of the Small Claims Court Rules, on the basis that in his capacity as a court appointed assessor, the defendant was immune from suit pursuant to the doctrine of expert witness immunity. The deputy judge also found that the action had been commenced outside of the applicable limitation period.
The Court of Appeal held that the absence of a summary judgment procedure in the Small Claims Court Rule is not a gap but rather a deliberate omission. It is not up to the court to read in such provision, since Rule 12.02 specifically addresses the ability to bring a motion similar to that contemplated by Rules 20, 21 & 76 of Rules of Civil Procedure. The court held that Rule 12 is similar to a Rule 21 motion, although it is worded more broadly and does not have the same prohibition on filing affidavit evidence. It involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be inflammatory, a waste of time or a nuisance.
Although the court has now clarified that summary judgment is not available in Small Claims Court, Rule 12 remains a valuable tool that can assist in disposing of cases that are without merit without the need to progress to a full blown trial.
April 15, 2010
Amendments to MMS
Final comment from Jennifer Stirton on the new Ontario Municipal Maintenance Standards:
7. Inspection for Sidewalk Discontinuity
The MMS now require annual inspections of sidewalks to check for surface discontinuities. There was no previous annual inspection requirement. In addition, municipalities are now required to treat sidewalk surface discontinuities that exceed two centimetres within 14 days after becoming aware of the fact. The constructive knowledge provision discussed above will also apply. Treating a surface discontinuity on a sidewalk involves taking reasonable measures to protect users of the sidewalk from it, including permanent or temporary repairs, alerting users’ attention to it or preventing access to the area of discontinuity.
7. Inspection for Sidewalk Discontinuity
The MMS now require annual inspections of sidewalks to check for surface discontinuities. There was no previous annual inspection requirement. In addition, municipalities are now required to treat sidewalk surface discontinuities that exceed two centimetres within 14 days after becoming aware of the fact. The constructive knowledge provision discussed above will also apply. Treating a surface discontinuity on a sidewalk involves taking reasonable measures to protect users of the sidewalk from it, including permanent or temporary repairs, alerting users’ attention to it or preventing access to the area of discontinuity.
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