In the main action, the Plaintiff alleged that his mortgage agent and brokerage were negligent and liable negligent misrepresentation after the Plaintiff failed to close on the purchase of a property in Brantford, Ontario (the “Property”).  While the Plaintiff secured a suitable mortgage commitment from an institutional lender well in advance of the closing date, the mortgage proceeds were not advanced in time for the intended closing on June 28, 2018, or the extended closing date of July 13, 2018.  As a result, the Plaintiff sought to recover $11,000 in pecuniary damages for the forfeited deposits and associated fees following the failed purchase of the Property and $5,000 in aggravated damages.  The Plaintiff sued the mortgage agent and brokerage that assisted him with the transaction (the “Defendants”) for his financial losses.

The Defendants denied any liability in the main action and issued a Defendant’s Claim against our client (the “Third Party Brokerage”) alleging that one of its mortgage agents was solely responsible for assisting the Plaintiff with securing mortgage financing.  The Defendants asserted that any broker related failings were the responsibility of the Third Party Brokerage.

In turn, the Third Party Brokerage denied that they acted for the Plaintiff in connection with the proposed mortgage financing but, in fact, acted as the brokerage representing the lender.

The trial judge found there was no evidentiary basis for finding that the Defendants or the Third Party Brokerage were responsible for any act or omission that could be connected to the lender’s failure to finance the purchase in time for the original and extended closing dates.  Notably, the trial judge also found that the Plaintiff did not rely on the Third Party Brokerage or its mortgage agent in connection with the failed purchase or the lost deposits.

In the absence of sufficient proof to establish causation and a breach of the standard of care, the main action and the Defendants’ Claim were dismissed with costs to be determined.

The post Daniel Silla Successfully Defends Mortgage Broker at Trial appeared first on FCL LLP.

In, Nicola Lao and St. John Ambulance Council for Ontario 2024 HRTO 347, Szymon Rodomar of FCL LLP successfully represented St. John Ambulance Council for Ontario (the “Respondent”) at a recent a preliminary hearing before the Human Rights Tribunal (“HRTO”).

In this Application, the Applicant alleged that she was discriminated against based on sex and family status by her former employer, St. John Ambulance Council for Ontario (the “Respondent”). The Applicant first initiated a Claim before the Ministry of Labour (the “MOL”) against the Respondent and, shortly thereafter, filed her Application with the HRTO; the Applicant made identical factual allegations relating to sex-based and family status discrimination in both proceedings. After her MOL Claim was dismissed, the Applicant still sought to proceed further with her HRTO Application.

In noting the strong similarities between the MOL Claim and the HRTO Application, the Respondent brought a preliminary hearing to dismiss the Application under Section 45.1 of the Code or, alternatively, because the Application was an abuse of process.

Section 45.1 of the Code states that the Tribunal may dismiss an application, in whole or in part, if another proceeding has appropriately dealt with the substance of the application. The provision is meant to prevent duplication of proceedings and re-litigation of issues already determined in another forum. An Applicant dissatisfied with the outcome of a proceeding before another administrative tribunal may not seek to appeal that outcome via the HRTO.

The Respondent detailed the four factors referenced by the HRTO in the context of decisions under Section 45.1 of the Code, which are derived from the Supreme Court’s decisions in British Columbia (Workers Compensation Board) v. Figliola, 2011 SCC 51 and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. In doing so, the HRTO accepted the Respondent’s submissions that the MOL had jurisdiction to consider allegations of discrimination contrary to the Code, the issues considered by the MOL were the same as the issues that the Applicant sought to litigate before the HRTO, the Applicant knew the case to be met before the MOL and that it would not be unfair to dismiss the Application under Section 45.1.

The Respondent’s Submissions centered heavily on third and fourth factors which focus, respectively, on the Applicant’s opportunity to know the case to be met before the other tribunal and fairness.

In this regard, the HRTO agreed with the Respondent’s argument that, if the Applicant took issue with the MOL’s procedures or with its substantive reasoning, she should have sought a review of the MOL’s decision by the Ontario Labour Relations Board pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41.

The HRTO further expressed agreement with the Respondent’s position that proceeding to a merits hearing in respect of the Application would necessarily entail a re-hearing of the issues raised before and decided by the MOL, which is precisely the situation Section 45.1 was enacted to prevent.

Ultimately, the HRTO found in favour of the Respondent and dismissed the Application.

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This class action initially arose from an infectious disease outbreak at the Rothbart Centre for Pain Care in Toronto. The outbreak stemmed from epidural injections administered by the appellant anesthesiologist, Dr. Stephen James (“Dr. James”). The injections were administered in an area close to the spine as a pain relief treatment. After receiving the injections, patients subsequently developed meningitis and an abscess in or around their spine among other serious infections. An investigation later found that the outbreak was caused by inadequate Infection Prevention and Control in respect of the injections designed to reduce the risk of transmission of microorganisms in health care settings.

In 2021, Voula successfully defended nurses in Ontario’s first common issues trial for a medical malpractice class action in Levac v James, 2021 ONSC 5971. At trial, Justice Morgan held that there was no sustainable legal claim against any of the nurses and made a Sanderson Order, which required Dr. James to pay the nurses’ legal costs. Dr. James sought leave to appeal the Sanderson Order.

On appeal, Voula successfully persuaded the Court of Appeal to deny Dr. James leave to appeal Justice Morgan’s decision on costs. For context, Dr. James launched a crossclaim against the nurses in the initial action. At trial, Dr. James was found to be driving the case against the nurses and was considered by Justice Morgan to be primarily responsible for their remaining in the action. These proved to be key factors in Justice Morgan’s order that Dr. James pay the nurses’ costs. On appeal, Sossin J.A., for a unanimous Court, upheld the Sanderson Order and denied Dr. James leave to appeal. In this regard, Sossin J.A. broadly held that the general rule that costs follow the event is equally applicable to class proceedings in Ontario, even where liability may ultimately be rebutted in respect of the individual trials of class members. Sossin J.A. observed that Dr. James, in oral argument on appeal, still expressed an intention to pursue his claims against the nurses if evidence of the nurses’ negligence was adduced at the individual trials despite Justice Morgan’s finding that Dr. James’ case against the nurses was “remarkably thin” and disclosed “no sustainable legal claim.” Further, Sossin J.A. highlighted the deference afforded to trial judges on the issue of costs.

Finally, Sossin J.A. rejected Dr. James’ contention that Justice Morgan had no basis to award the nurses’ costs on a substantial indemnity basis. In awarding substantial indemnity costs at trial, Justice Morgan paid particular attention to the fact that the nurses had made an early attempt to settle the claims against them on a without costs basis and that there was no basis for Dr. James to keep them in the action. Sossin J.A. saw no potential error in Justice Morgan’s assessment of the amounts as “extremely reasonable” and “relatively modest;” likewise, Sossin J.A. observed the deference afforded to trial judges in the context of costs.

The post FCL’s Voula Kotoulas Successfully Defends Nurses’ Costs Award on Appeal appeared first on FCL LLP.

Nicole’s dedication and hard work have demonstrated a sustained commitment to our clients and to the professional liability industry across Canada through her position as the National Chair of PLUS Canada.

Congratulations, Nicole!

The post Nicole McAuley wins PLUS 2022 Emerging Leader Award appeared first on FCL LLP.

In Andrews v. Pattison, the Ontario Court of Appeal upheld a summary motion decision involving section 5(1)(a) of the Limitations Act, 2002, SO 2002, c 24, Sch B (the “Limitations Act”).

Ms. Gorton was diagnosed with terminal lung cancer in the spring of 2013. She passed away in April 2014. Prior to her passing, she was treated by the respondent doctor between 2008 and 2013. The doctor ordered a chest x-ray in late 2008. No anomalies were discovered. No other chest x-rays were requisitioned until May 2013. It was the x-ray of May 2013 that led to the cancer diagnosis.

The appellants issued a statement of claim on April 11, 2016, against the respondent doctor. At the summary motion, the appellants asserted that the limitation period did commence until they obtained expert reports on the standard of care and causation in 2015. However, the motion judge held that the appellants’ claim was discoverable no later than February 6, 2014, when they met with a medical malpractice lawyer. By that date, the appellants had obtained the complete medical records of Ms. Gorton and expressed concern about whether an earlier x-ray might have led to a better outcome.

It was held that the appellants had actual knowledge of the potential claim against the respondent doctor on February 6, 2014. The claim issued on April 11, 2016, was therefore out of time. The action was summarily dismissed as statute barred under section 5(1)(a) the “Limitations Act”.

The Court held that the determination of when a potential plaintiff has sufficient material facts on which a plausible inference of liability on the defendant’s part can be drawn “is not to be conflated with the question of the discovery of the merits of the potential action.” Both the Court of Appeal and the motion judge recognized that the Limitations Act “does not distinguish between meritorious and non-meritorious claims.” In other words, knowing the strength of a potential action is not determinative of when the limitation period for that action will commence.

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By Nicole A. McAuley

It is well established in Canada that termination for just cause is considered “capital punishment” in employment law. It is reserved for significant incidents of employee misconduct. In order to establish sufficient justification of a for cause dismissal, the evidence must be steadfast. Often this requires a clear record of progressive discipline; although, in rare circumstances one incident of misconduct may be sufficiently severe to establish just cause.

Goruk v. Greater Barrie Chamber of Commerce, 2021 ONSC 5005 involved the termination for cause of a long-term employee of the Greater Barrie Chamber of Commerce (the Chamber); a not-for-profit organization governed by a volunteer Board of Directors. The employee, Sybil Goruk (Ms. Goruk), had been the executive director of the Chamber for the vast majority of her 17-year tenure with the Chamber. In her role, Ms. Goruk owed fiduciary duties to the Chamber and its Board, including the duties of loyalty, trust, and good faith.

In early 2014, Ms. Goruk was placed on a paid suspension pending the outcome of an investigation into financial abnormalities, which had recently come to the attention of the Board, as well as an allegation of misconduct.

Upon completion of the investigation, the Board determined that Ms. Goruk had been involved in the following acts: (1) uttering a forged document to the Chamber’s bank; (2) taking unauthorized accrued vacation pay; (3) granting herself an unauthorized pay raise; (4) awarding service contracts to her children’s companies without following the established protocol or disclosing the relationship to the Chamber’s auditor; (5) suppressing a letter from the Chamber’s auditor which expressed concerns regarding their financial statements; and (6) reimbursing herself for charges to her personal credit card without supplying proper supporting documentation. Additionally, Ms. Goruk had impeded the treasurer’s access to the Chamber’s books and records for a significant period of time, and had permitted the use of the Chamber’s internal broadcast system to members to send out an e-broadcast that was critical of the Board. Ms. Goruk was terminated for just cause. At the time of termination, Ms. Goruk had no documented performance issues and no history of progressive discipline.

Thereafter, she commenced the within action, seeking pay and benefits in lieu of notice for two years, in addition to aggravated and punitive damages. The matter proceeded to a virtual trial with Justice Boswell presiding.

In examining the facts relied upon by the Chamber in support of the just cause termination, Justice Boswell found that the independent acts of misconduct were not in and of themselves sufficient to amount to just cause. However, his Honour found that when the totality of the events was considered, they clearly demonstrated a lack of honesty and integrity, as well as the exercise of poor judgment. It was determined that Ms. Goruk’s conduct was incompatible with the fundamental terms of her employment relationship and that the Chamber had just cause for termination.

In his analysis, Justice Boswell highlighted the fact that the Chamber is a not-for-profit organization that has a high profile within the community and a strong reputation for integrity and honesty. As such, the volunteer Board’s loss of faith and trust in Ms. Goruk’s ability to carry out her role as executive director was significant.

The timing of the discovery of these issues was also an important factor in this decision. It was noted by Justice Boswell that “all of the issues that led to the termination of Ms. Goruk came to a head at or around the same time period.” It was the culmination of the incidents, which were discovered over a fairly short period of time, that amounted to a repudiation of the contract. As such, Justice Boswell found that in the circumstances, it was unnecessary for the Chamber to provide warnings or implement a progressive approach to discipline.

The issue of costs was recently addressed by the Court. Following seven years of this action and 13 days of trial, the Chamber was awarded roughly $143,000 in costs. The Chamber had sought significant costs due to the fact that they had made a Rule 49 offer to settle for $25,000 prior to trial, which the plaintiff never accepted. The plaintiff had advanced claims of impecuniosity and Justice Boswell was sympathetic to same; however, he noted that:

[I]t remains a difficult reality that litigation is an expensive business. It is not for the risk averse or faint of heart. There are winners and there are losers. And it is a well-established convention in our civil justice system that losers pay the winners a significant portion of their costs.

This is an important decision for employers when assessing whether an employee in a fiduciary position may be terminated for just cause without imposing a plan of progressive discipline. As aforementioned, the close proximity of the incidents of poor judgment and the discovery of the financial misfeasance played a significant role in the Court’s finding that progressive discipline was not required. We can also not disregard the impact of the fiduciary duties this employee owed to her employer. Had the fiduciary duties not been established, or if the same incidents been discovered over a number of years, the decision would most likely have been very different.

While this decision is helpful to employers, it remains the case that the burden to establish just cause is extremely high and the facts must be evaluated on a case by case basis. It remains extremely important for employers to seek legal advice prior to taking any steps to terminate an employee under any circumstances.

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Defamation Action Commenced in Bad Faith Results in Full Indemnity Costs Award

by Marie Boisvert

In Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, the plaintiffs, a window company and its principal was ordered to pay costs of $164,186 to former customers who posted negative reviews of the quality of the products received and their experience with the company. The plaintiffs sued for defamation claiming that the reviews incorrectly represented their products and customer service practices. The defendants sought for the dismissal of the action in reliance of the anti-SLAPP provisions under section 137.1 of the Court of Justice Act (“the Act”). The night prior to this motion, the plaintiffs filed a notice of discontinuance.

The first issue before the court was then whether the plaintiffs were procedurally permitted to discontinue the action in light of the anti-SLAPP motion. The plaintiffs argued that the defendants, contrary to the requirements under section 137.1 of the Act, could not seek costs on full indemnity basis as they failed to book a motion date prior to serving their notice of motion. As such, the motion was never “made”. If an anti-SLAPP motion is deemed to be “made”, a stay is granted until the motion is disposed of, and the parties are barred from taking any further steps in the proceeding.

The court determined that such a motion “must be considered “made” when the moving defendant has done all that it can do unilaterally to deliver the formal documents to commence the process under the Rules and any applicable Practice Direction”. The motion brought by the defendants in response to the defamation suit was made when the defendant delivered a Requisition to Attend Civil Practice Court, meaning that the notice of discontinuance previously filed by the plaintiffs was deemed ineffective.

Relying on the framework offered by the decision of the Supreme Court in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, the court turned to the merits of the anti-SLAPP motion. A defendant holds the burden of proof to demonstrate that the expressions are a matter of public interest. The criticisms made were not considered personal attacks, as alleged by the plaintiffs. Rather, they were determined to be matters to which “a segment of the community would have a genuine interest in receiving information” about. Of note, Justice Myers points out that in addition to comments on the quality of the products of a said business, the “behaviour of the manager and owner during a meeting to deal with a customer’s complaint is a proper part of a review of the business’s customer service”.

If the burden is met by the defendants, the claim will be dismissed unless the plaintiffs can show that there are “grounds to believe” that the claim has “substantial merit”, and the defendants have “no valid defence in the proceeding”. The real issue was whether the defendants had a valid defence as to the truth of the statements made. Due to the lack of expert evidence and cross-examinations conducted, it could not be ruled out that the content of the reviews was true. The court also briefly touched on “the harm suffered by the plaintiffs [as] against the public interest in the defendants’ expression”. The plaintiffs were not able to demonstrate that their alleged loss in revenue was the direct cause of these reviews.

The action was dismissed as against the defendants and the court upheld the presumption that they were entitled to costs on a full indemnity basis totaling $164,186. In other words, the defendants were awarded the total extent of their legal costs for the litigation. Additionally, the defendants benefited from an award in damages of $2,500. Justice Fred Myers was clear that the action was brought in an obvious attempt to bully the defendants to remove their reviews. The court noted that this case was exactly the type of action the anti-SLAPP legislation aimed to prevent.

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Absence of Specific Wording in Insurance Policy Leads to Application of the Higher of Two Potential Policy Limits

In the recent decision, 202135 Ontario Inc., et al. v. Northbridge General Insurance, 2021 ONSC 4299, the Applicant Insured (“Insured”) sought a declaration, under rr. 14.05(3)(d) and (h) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, against the Respondent Insurer (“Insurer”) that they are entitled to further coverage under a provision of the Business Choice insurance policy (the “Policy”). The specific provision at issue can be referred to as the pandemic-related business income interruption/interference provision.

The Insurer had taken the position that the coverage under this provision was restricted to an aggregate maximum limit of $50,000, in total, for the policy period. The Insured sought a declaration that the maximum sum of $50,000 is payable for each of their seven locations, in the aggregate sum of $350,000.

On March 17, 2020, the Insured was required to shut down their seven daycare centres as a result of the COVID-19 pandemic outbreak and the resulting state of emergency declaration by the Ontario Government. The daycare centres remained closed until June 22, 2020.

The Insured made a claim under the Policy for income loss arising from the interruption or interference with its business operations.

The parties agree that the COVID-19 pandemic outbreak triggered coverage under the Policy as of March 16, 2020. The Insurer approved coverage in respect of the Insured’s business income losses under the Policy in the amount of $50,000.

The only issue in dispute was the limit of liability under the applicable endorsement in the Policy.

The Court’s analysis focused on the subject endorsement within the context of the Policy as a whole. The Court applied the “rules” of contractual interpretation, as applied to insurance contracts, pursuant to the Supreme Court of Canada’s decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23.:

1. a) The court must first determine whether the language of the insurance policy is unambiguous, within the contract as a whole. If there is no ambiguity, effect must be given to that clear language;
2. b) However, if the policy language at issue is ambiguous, the court must apply the general principles of contractual interpretation to resolve that ambiguity. This framework includes the principles that: the interpretation should be consistent with the reasonable expectations of the parties so long as that interpretation is supported by the language of the policy; the interpretation should not give rise to results that are unrealistic or that the parties would not have contemplated in the commercial atmosphere in which the insurance policy was entered into; and the interpretation should be consistent with the interpretation of similar insurance policies;
3. c) If the ambiguity is unresolved after the application of the general principles of contractual interpretation, then the court should apply the doctrine of contra proferentum to construe the policy against the insurer. This is a course of last resort. The corollary of this rule is that coverage provisions in insurance policies are to be interpreted broadly, whereas exclusion or limiting clauses are to be interpreted narrowly.

The Policy at issue provided insurance coverage for multiple perils, including business income interruption/interference coverage. The Policy is comprised of CBC 001 (containing the General Terms and Conditions, including the Declaration Page and attached Coverage Schedules), a renewal of the Policy effective February 3, 2020, for a term of one year, and Endorsement 3 -Association of Daycare Operators of Ontario Program Endorsement (the “ADCO Endorsement”).

The ADCO Endorsement was in force at the time of the loss and, the parties agree, applies to the Insured’s. It modified the coverage provided under Part II — Business Income found in CBC 001. In particular it deleted the coverage extension under Part II, ss. 6(e) Civil Authority, (j) Negative Publicity, and (k) Outbreak Extra Expense and replaced it with the Outbreak and Negative Publicity Extension. The Outbreak and Negative Publicity Extension was the relevant coverage provision at issue in this application.

Firstly, the Court analyzed whether there is an ambiguity in the wording of the Outbreak & Negative Publicity provision contained in the ADCO Endorsement. In particular, the meaning of “at your ‘scheduled risk location'” (s. (l)(i)), and “The most that we will pay under this Extension of Coverage in any one policy period is $25,000 [sic] or as otherwise indicated on the ‘schedule'” (s. (l)(iv)).

The Insured argued that when the Policy is read as a whole, “the most that we will pay” means calculated for each “scheduled risk location” consistent with “schedule” and not a total aggregate sum. In the alternative, this coverage provision is ambiguous, and cannot be resolved by the applicable rules of interpretation. Therefore, resort must be made to the doctrine of contra proferentum to resolve the dispute in the Insured’s favour. Notably, the Insured relied on the fact that the premium payable for this coverage was allocated on a per scheduled risk location basis.

The Insurer argued the opposite — the omission of the phrase “each” (or any similar word) from the “scheduled risk location” meant that the $50,000 limit of liability applied to all of the scheduled risk locations as an aggregate, when read within the context of the Policy as a whole. The Insurer reasons that if it intended the sum of $50,000 to be the maximum payable for each scheduled risk location, it would have inserted “each” before “scheduled risk location” rather than “your”. It did not. Therefore, the court ought to construe this “silence” or omission as meaning the $50,000 limit of liability was in the aggregate for all of the scheduled risk locations.

However, the Court noted that the Insurer’s position relied on an interpretation of the limit of liability clause, in isolation from other provisions of the Policy, that contains the general terms, conditions, and definitions applicable to the Policy (unless expressly changed in an Endorsement or another part of the Policy).

A review of the various endorsements showed that there was no uniform wording specifying the application of the limit of liability for each insured risk and whether it is in aggregate or applies separately to each individual “scheduled risk location”.

The Court stated “the limit of liability provision in the ADCO Endorsement is not clear when read in the context of the Policy as a whole. The fact that the limit of liability provision was silent as to whether it is on a per scheduled risk location basis, or on a total aggregate basis, leads to an uncertainty as to its meaning, beyond being “unclear” or “imprecise””

Further, the Court held that the ADCO Endorsement’s limit of liability as it relates to the Outbreak & Negative Publicity Extension coverage under Part II – Business Income, is ambiguous when read in the context of the whole Policy. The Insured asked the Court to effectively read into the provision “each” before the “scheduled risk location”. The Insurer asked the Court to effectively read into the provision “in the aggregate” after the phrase “scheduled risk location”.

However, when reviewing the Policy as a whole, and in particular the definition of “insured risk location”, including all seven daycare centres as per the Coverage Schedule, which is stated to prevail over the Coverage Summary of the ADCO Endorsement, the Court was persuaded by the Insured’s interpretation. The reasonable expectations of the parties, as reflected by the Policy as a whole, was that this coverage, like the majority of the other insured risks contained elsewhere in the Policy (which were specified to be either for each scheduled risk location or per occurrence), was to be subject to a limit of liability calculated on a per scheduled risk location, and not in the aggregate for one policy period.

Ultimately, the Court held that by applying of rules of contractual interpretation and reading the Policy as a whole to determine the reasonable expectations of the parties, or applying the doctrine of contra proferentum, yielded the same result: the limit of liability under the ADCO Endorsement is a maximum of $50,000 for each of the seven scheduled risk locations, for a maximum aggregate coverage of $350,000. Hence, the application for was granted.

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Discoverability, Due Diligence, and the Impact of the Covid-Adjusted Limitation Period

In McAuley v. Canada Post Corporation, 2021 ONSC 4528 (Ont. S.C.J.)., Justice Boswell clarified the rules of discoverability, due diligence, and the impact of the suspension of all limitation periods ordered in the midst of the Covid-19 pandemic. In a motion to amend a claim to add additional parties past the expiry of the presumed date of discovery, Boswell J. ruled in favour of the opposing parties, who argued that the plaintiff had failed to act with due diligence to discover the claim against them. When addressing the Covid-adjusted limitation period, which suspended all limitation periods from March 16, 2020 to September 14, 2020, Justice Boswell stated it simply: “those days do not get counted in the calculation of the limitation period”.

The plaintiff in this action suffered a broken ankle after a slip and fall on a municipal sidewalk in Huntsville in December 2017. The sidewalk was adjacent to a Canada Post Corporation (“CPC”) building. The plaintiff initially commenced an action against the municipality only in April 2018.  Immediately following the fall, it had been brought to the plaintiff’s attention that an eavestrough on the side of the CPC building was not properly maintained. Photographs of the faulty eavestrough were taken by the plaintiff’s wife around that time; however, the plaintiff failed to mention this to his counsel until November 2018.  Thereafter, CPC was put on notice and the plaintiff was advised of the use of a property manager for the premises, JLL. By early February 2019, plaintiff’s counsel was advised that JLL had subcontracted its tasks to Heritage Property Services (“Heritage”), who had retained Always Handy Property Management Ltd. (“Always Handy”) to act as the winter maintenance contractor.

On March 6, 2019, the plaintiff commenced a second action against CPC. The municipality and Heritage were added as third parties, and Always Handy was added as a fourth party, along with JLL. Following documentary disclosure between January 10 and March 13, 2020, the plaintiff sought to amend the claim to add the municipality, JLL, Heritage, and Always Handy as defendants to the main action. The plaintiff claimed it was not until that time that he was alerted to the contractual obligations of the third and fourth parties. The motion was initiated on January 28, 2021, and was opposed by both Heritage and Always Handy on the basis that the limitation period had expired.

In this case, the court found that the actual date of discovery was when the plaintiff’s lawyer was advised of the involvement of Heritage and Always Handy in February 2019. It was further determined that the plaintiff’s failure to notify his counsel of the faulty eavestrough until 11 months after his injury amounted to a lack of due diligence. The court found that a reasonable person in the plaintiff’s circumstances would have provided this information soon after retaining counsel in early 2018. Had the plaintiff done so, the chain of events would have led to a discovery of the claim against Heritage and Always Handy by April 30, 2018.

The determined discovery date of the claim meant that the expiry of the limitation period should have occurred on April 30, 2020. However, all limitation periods in Ontario were suspended during that time, due to the Order made by the provincial government under s. 7.1(2) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9., Reg. 73/20 (“Reg. 73/20”). As aforementioned, Reg. 73/20 was in force from March 16 to September 14, 2020. The plaintiff argued, and the court agreed, that the impact of Reg. 73/20 was to extend the running of the limitation period by 183 days. The court stated that “all limitation periods subject to the regulation were extended by roughly six months”.

Heritage argued that this was the incorrect interpretation of Reg. 73/20; however, the court noted that Heritage had failed to articulate why this was incorrect, other than to suggest that the revocation of the regulation effectively revoked any benefit it otherwise may have conferred. This was, clearly, not accepted by the court. Had an alternative opposing argument been advanced that acknowledged the suspension of limitation periods during the 183 days (i.e. that all limitation periods which would have elapsed during this time expired on the date the regulation was revoked), the outcome on this issue may have been different.

Regardless, Heritage and Always Handy were successful in opposing the plaintiff’s motion to add them to the main action, due to the expiry of the limitation period. As JLL and the municipality did not oppose the plaintiff’s motion, an order was granted to add them as defendants to the main action.

This case serves as an excellent example of the obligations imposed on a plaintiff to exercise diligence and keep their counsel informed of all information of which they become aware. As well, the case, importantly, clarifies that all limitation periods subject to Reg. 73/20 were extended by 183 days.

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The class action arose from an infectious disease outbreak amongst patients receiving epidural injections administered by the defendant anesthesiologist, Dr. James, at the Rothbart Centre for Pain Care between January 1, 2010 and November 30, 2012. The outbreak was subsequently investigated by Toronto Public Health.

Justice Morgan held that there was no evidentiary basis to make a finding that any nurse fell below the standard of care in respect of their infection control practices or the manner in which they assisted Dr. James. Further, with respect to the allegation of a failure to report, Justice Morgan held that Dr. James could not offload his own professional responsibilities by accusing nurses, who assisted him in accordance with standard procedures and with whose performance and IPAC he consistently expressed satisfied, of failing to notice that he himself did not meet the standards expected of a doctor.

Overall, Justice Morgan found that the evidence against the nurses was “remarkably thin” and which amounted to “next to nothing”. As such, there was no sustainable legal claim against any of the nurses.

Justice Morgan however did find a breach of the standard of care by Dr. James for failing to use aseptic technique for each epidural procedure and also for failing to report, investigate and remediate all known infections to his patients.

Of particular note is the discussion on causation, which involved a “novel” approach in the context of collective claims. Plaintiff’s counsel took the position that in fulfilling the burden of proof there was no need for the plaintiff to present scientific evidence of the precise way in which the negligence of Dr. James contributed to those injuries. Instead, the question was more of a practical one in which inferences may be drawn, including from circumstantial evidence. In this case, Justice Morgan held that an inference could be drawn because the evidence of causation, while circumstantial, was overwhelming. The evidence demonstrated that the risk ratio of Dr. James’ epidural injections was increased substantially, thus presumptively proving causation for Class Members (subject, of course, to any evidence which might emerge in an individual trial rebutting this presumption).

Lastly, Justice Morgan found this case to be one which required the imposition of punitive damages. Dr. James had an obligation to report, investigate, and remediate these infections. His failure to do so amounted to a marked departure of a person in his position. While the exact quantification of damages will be determined during individual trials, a clear message of deterrence was vocalized for the medical profession as a whole.

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