Moodie Mair Walker LLP

CHANGING THE TEST FOR LEAVE TO APPEAL? DAVIS V. AVIVA GENERAL INSURANCE COMPANY A recent decision from the Ontario Court of Appeal addresses the implications of West Whitby Landowners Group Inc. v. Elexicon Energy Inc., 2024 ONCA 910 (“West Whitby”) on the principles governing leave to appeal established in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.) (“Sault Dock”). In Davis v. Aviva General Insurance Company 2024 ONCA 944, the Court reaffirmed the Sault Dock framework, clarifying that West Whitby reinforces the concept that leave to appeal from the Divisional Court should only be granted in cases of significant public importance. BACKGROUND On November 22, 2017, Carrie-Anne Davis slipped and fell on black ice in a parking lot. She claimed statutory accident benefits (SABS) from her insurer, Aviva general Insurance Company. While some benefits were approved, others were denied. Ms. Davis applied to the License Appeal Tribunal (“LAT”), disputing the denied benefits. The main issue was whether the fall was qualified as an “accident” under s3(1) of the SABS. The LAT ruled that Ms. Davis’ fall did not meet the definition of an accident and dismissed her claim. Ms. Davis appealed the decision to the Divisional Court, where it was ruled that her injuries were indeed an accident. Aviva then sought leave to appeal, arguing that the Divisional Court misapplied the causation step of the SABS “accident” test and took an overly flexible approach. TEST FOR GRANTING LEAVE The principles governing leave to appeal from the Divisional Court were set out in Sault Dock. This case provided a framework for determining whether leave should be granted, highlighting factors such as: •   the interpretation of a statute or Regulation of Canada or Ontario including its constitutionality; •   the interpretation, clarification or propounding of some general rule or principle of law; •   the interpretation of a municipal by-law where the point in issue is a question of public importance; •   the interpretation of an agreement where the point in issue involves a question of public importance. The West Whitby case reaffirmed that this list is not meant to serve as a rigid checklist for granting leave to appeal. Treating it rigidly would go against the intent of the Sault Dock principles. Instead, the central question should be the broader impact of the decision on Ontario’s jurisprudence. Consequently, Justice Sossin, in Davis, clarified that the decision in West Whitby did not change the principles governing leave established in Sault Dock. Rather, it emphasized the need for a more flexible application of the principles. For the full case summary, continue reading on our website: Website: https://lnkd.in/g6QEtBxD PDF: https://lnkd.in/gKc4j4HP 

Dismissal of Action for 20-Year Delay: Barbiero v. Pollack   In a recent landmark decision, the Ontario Court of Appeal overturned its ruling in Langenecker v. Sauvé, 2011 ONCA 803, where they reconsidered the role of the passage of time in determining prejudice sufficient to dismiss an action for delay. The Court in Barbiero v. Pollack, 2024 ONCA 904 found that inordinate delay, even without demonstrable harm, can justify dismissal if it compromises the fairness and integrity of the litigation process.   BACKGROUND   Anna Barbiero initiated a class proceeding on February 2003 against Dr. Sheldon Pollack for allegedly injecting Injectable Grade Liquid Silicone (“IGLS”) for cosmetic procedures. Some discoveries occurred in 2004 and 2005, and a protocol was established for testing the IGLS sample seized by Health Canada. However, after a failed mediation in 2012, the case was making very little progress, with no meaningful action for years. By 2019, Ms. Barbiero attempted to resume proceedings, but the case had still not been set down for trial by 2022. Consequently, Dr. Pollack moved for dismissal on the grounds of delay under Section 25 of the Class Proceedings Act, 1992 and Rule 24.01 of the Rules of Civil Procedure. Ms. Barbiero appealed this dismissal.   THE APPEAL On appeal, Ms. Barbiero argued that the motion judge erred in finding that the 20-year delay was inordinate and inexcusable. She relied on the Court’s decision in Langenecker, which held that the passage of time alone was not enough to demonstrate prejudice or justify dismissing a case. However, the Court of Appeal disagreed. They found the reasoning in Langenecker outdated and inconsistent with the Supreme Court's guidance in Hryniak v. Mauldin, 2014 SCC 7. Specifically, in Hryniak, the Supreme Court warned that excessive delays and costs in the legal process drive people to seek alternatives or abandon justice altogether. The decision called for a culture shift to address the widespread tolerance for delays and to reform judge-made rules that hinder the resolution of legal disputes. Due to this inconsistency, the Court of Appeal overturned the decision in Langenecker. They held that the 20-year delay in this case was unacceptable and, even without specific evidence of harm, provided sufficient grounds to dismiss the action.   KEY TAKEWAYS   This decision highlights the judiciary’s commitment to fostering a culture of timely and efficient civil justice. It signals a stricter approach to addressing delays in civil litigation, particularly those surpassing the five-year benchmark under Rule 48.14 of the Rules of Civil Procedure. Website: https://lnkd.in/ghJ4MnSD Document: https://lnkd.in/gEVWvkvu

Navigating the Complexities of Accident Benefit Limitation Periods In a recent Ontario Court of Appeal decision, the court provided guidance on limitation periods for income replacement benefits (IRB) under the Statutory Accident Benefits Schedule (SABS). The case of Personal Insurance Company v. Tagoe 2024 ONCA 894 highlights the nuanced application of limitation periods and the importance of the discoverability principle in insurance benefits disputes.   BACKGROUND   On April 28, 2016, Mr. Tagoe was involved in a vehicle accident, and then returned to work the next day. Mr. Tagoe submitted an application for Accident Benefits on May 9, 2016, indicating his injuries were not preventing him from working. However, a physiotherapist suggested he was substantially unable to perform his essential job tasks. The Personal Insurance Company (TPIC) denied Mr. Tagoe's IRB, asserting that he did not qualify due to his continued employment. Mr. Tagoe continued working for approximately 16 months before ultimately stopping due to medical reasons, including hip surgery and a subsequent stroke, allegedly caused by his injuries from the 2016 accident.   Consequently, on February 3, 2021, Mr. Tagoe applied to the License Appeal Tribunal (LAT), challenging TPIC's refusal to pay IRB. TPIC argued that the two-year limitation period began with their May 2016 denial of benefits. However, Mr. Tagoe contended that he was not yet eligible for IRB at that time and that the limitation period should start when he actually stopped working. The LAT initially dismissed Mr. Tagoe's application, finding him statute-barred, but the Divisional Court overturned this decision, applying the discoverability principle. A decision TPIC appealed. THE APPEAL The Ontario Court of Appeal upheld the Divisional Court's decision. The court reinforced the discoverability principle, establishing that limitation periods for IRBs are not absolute. Instead, they are subject to when a claim becomes genuinely discoverable. In other words, individuals may still pursue benefits even if some time has passed since an initial denial, particularly if they were not eligible to claim those benefits at an earlier date. KEY TAKEAWAY Overall, the decision in Personal Insurance Company v. Tagoe 2024 ONCA 894 provides critical guidance on navigating limitation periods in insurance claims and highlights the potential for claims to be pursued after an initial denial if the claimant was not yet eligible. Website: https://lnkd.in/gRu7T_ZR Document: https://lnkd.in/g-qUt3xe

MMW Court of Appeal Updates ONTARIO COURT AFFIRMS SERIOUS CONSEQUENCES FOR MISREPRESENTATION IN INSURANCE CLAIMS A recent Ontario decision highlights the consequences of dishonesty in insurance matters. In Wong v. Aviva Insurance Company of Canada 2024 ONCA 874, the Ontario Court of Appeal dismissed Ms. Wong’s appeal, affirming a lower court’s finding that her misrepresentation constituted civil fraud. This case is a reminder of the importance of truthfulness in dealings with insurers and the potential repercussions of misrepresentation. BACKGROUND On March 18, 2019, Ms. Wong suffered a motor vehicle accident. She believed her driver’s license had expired, which led her to call her mother, Ms. Tieu, on to the scene of the accident and convinced her to claim she had been the driver. This falsehood was carried through to the Collision Reporting Centre, the police, and their insurer, Aviva Insurance Company, when filing the claim. The truth was eventually revealed during discovery of the lawsuit initiated by the other driver involved in the accident. Aviva discovered this misrepresentation and subsequently denied coverage to Ms. Wong, asserting that such conduct breached the terms and conditions of their policy. Ms. Wong brought an application for a declaration that Aviva owed her a defense under the policy. However, the application judge dismissed her claim, finding a breach of Aviva’s policy and conditions, and that Ms. Wong’s actions constituted civil fraud—a decision Ms. Wong appealed. THE APPEAL On appeal, Ms. Wong argued that the trial judge erred in finding civil fraud, asserting that Aviva had not suffered quantifiable losses as a result of her actions. However, the Court of Appeal rejected this argument, affirming that Ms. Wong’s conduct met the four elements of civil fraud outlined in Hryniak v. Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 87: 1. The Defendant made false representation; 2. The Defendant had some level of knowledge of the falsehood; 3. The false representation caused the Plaintiff to act; 4. The Plaintiff’s actions resulted in a loss. The Court emphasized that even in the absence of fully crystallized damages, Ms. Wong's lack of credibility significantly impaired Aviva’s ability to defend the action. This was deemed a real loss—resulting in the appeal being dismissed. KEY TAKEAWAY Ultimately, the Wong v. Aviva Insurance Company of Canada case serves as a critical reminder of the importance of maintaining honesty in insurance dealings. The Court of Appeal’s decision underpins that misrepresentations can have serious consequences, including the denial of coverage and findings of civil fraud. MMW Website: https://lnkd.in/g2dMeTEh PDF: https://lnkd.in/gxRfFJdh Link to Decision: https://canlii.ca/t/k866z

Moodie Mair Walker LLP has been listed in the inaugural edition of Best Law Firms in Canada as a Tier 1 firm in Insurance Law for Toronto, and for Canada.

Moodie Mair Walker LLP has been named in the 2025 edition of Best Law Firms® as a Tier 1 national firm in Insurance Law.

The 2024 Ontario Bar Association's Anatomy of a Trial had a roster titans, including our very own Ian Mair & Robin Moodie. Ian showed us how to use demonstrative aids when examining an expert, and Robin showed us how to examine a defence expert. Thank you to Katie DiTomaso, Lindsay Charles, Troy Lehman and Brian Bangay for organizing such a great event.

Do you know the timelines for delivering expert reports and what you should do if you miss them? Moodie Mair Walker LLP lawyer Liam Walmsley presented on this topic at the Canadian Defence Lawyers recent AGM. The deadlines are tight, and the bench expects lawyers to meet them. Take a read of Agha v Munroe, 2022 ONSC 2508 to learn more.

The annual Ontario Bar Association Insurance Law Section’s flagship trial advocacy program, will be held on June 13, and 14, 2024. The program is called “Anatomy of a Trial: Telling Your Trial Story”, and will feature demonstrations of Opening Statements, Examinations-in-Chief, Cross-Examinations and Closing Arguments by senior advocates, as well as panel discussions with judges from the Court of Appeal for Ontario and Ontario Superior Court of Justice and a roster of distinguished trial lawyers.   MMW is pleased to announce that two of our lawyers, B. Robin Moodie and Ian A. Mair, have been invited to demonstrate. Both Ian and Robin consider the invitation an honour and both are looking forward to the event. Link: https://lnkd.in/gjC7NUg6