Duty to defend decision 'will change the landscape'
By Donalee Moulton
The Lawyers Weekly | October 26, 2012 | Page 12
The Ontario Court of Appeal has shone a new light on an old decision.
In Papapetrou v. 1054422 Ontario Limited [2012] O.J. No. 3373, the court found that a duty to defend was not triggered in the face of independent allegations that were outside the scope of the contract.
For further reading: Papapetrou v. 1054422 Ontario Ltd. (PDF)
Settlement Disclosure Notices and the Parveen Decision
By Catherine Koch
A FSCO arbitrator has rendered a decision on a preliminary issue addressing the form and content of the prescribed Settlement Disclosure Notice which created an air of uncertainty regarding the finality of settlement agreements in the Accident Benefits world.
In Parveen v. Aviva, Arbitrator Susan Alves ruled that a Settlement Disclosure Notice might be ineffective to complete settlement. At issue was whether Ms. Parveen had rescinded her Accident Benefits settlement and was entitled to proceed with Arbitration. Essentially, Ms. Parveen settled her Accident Benefits claim at a Pre-Hearing held May 30, 2011 at FSCO. She executed a Settlement Disclosure Notice on that day. Via facsimile, counsel for the Insurer sent a Release to counsel for the Applicant for execution on June 10, 2011. Counsel for the Applicant advised that Ms. Parveen would not execute the Release and inquired whether the settlement would be in effect without it. Counsel for the Insurer advised that because the cooling off period had expired the settlement had been effected, however, a signed Release was required.
On July 4, 2011 Ms. Parveen executed the Release. On July 5, 2011, counsel for the Applicant sent a letter advising that Ms. Parveen was rescinding the settlement. This letter was received by counsel for the Insurer on July 8, 2011.
On the hearing of a Preliminary Issue, Arbitrator Alves found that the prescribed Settlement Disclosure Notice failed to include certain information with respect to the Applicant's right to rescind settlement. It required a statement that the insured person may rescind the settlement by delivering a written notice to the office of the insurer or its representative and was further required to return any money received by the insured person in consideration of the settlement.
Arbitrator Alves concluded that the following language was not contained in the Settlement Disclosure Notice: "within two business days after the later of the day the insured person signs the disclosure notice and the day the insured person signs the release, rescind the settlement". Arbitrator Alves held that the Insurer bears the onus to ensure that the FSCO form contained all necessary information to comply with the Settlement Regulation. She further stated there was nothing to prevent the Insurer from amending the form and seeking the Superintendent's approval.
In light of this decision, various Insurers have expressed concern over settling Accident Benefits claims in light of the uncertainty of the validity of the FSCO required Settlement Disclosure Notice. It would be impractical to halt all settlement negotiations in anticipation of FSCO's potential release of a revised Settlement Disclosure Notice. Insurers have the option of inserting the text specified by Arbitrator Alves in the box found on page 2 of the Settlement Disclosure Notice. By doing so, insurers can comply with the commentary contained in Parveen.
As a result of this ambiguity, the Superintendent of FSCO, Philip Howell, released a bulletin dated May 4, 2012, advising that the current form and content of the existing Settlement Disclosure Notice complies with the Regulations. Accordingly, it remains appropriate to effect settlement of Accident Benefits claims. Despite this reassurance, the Superintendent advised that Insurers could insert additional language (such as the recommendations of Arbitrator Alves) into the Settlement Disclosure Notice in order to enhance the settlement process.
Despite the reassurance of the Superintendent, it appears as though Insurers are free to insert additional text into the existing Settlement Disclosure Notice. Based on the Superintendent's bulletin, there is no apparent need to cease settlement discussions as the form continues to be approved by FSCO. Any ambiguity or uncertainty can always be remedied through the addition of further text accounting for Arbitrator Alves' recommendations in Parveen.
The New Year Brings New Rules of Civil Procedure
By Andrea Macerollo
On January 1, 2010, extensive amendments to the Ontario Rules of Civil Procedure came into force. The Rules govern all civil litigation matters. These changes to the Rules represent the Ontario government's attempt to increase access to justice, to simplify the litigation process and to reduce time and money involved in litigating an action.
In 2007, the Attorney General for Ontario asked the Honourable Mr. Justice Osborne, Q.C. to chair the Civil Justice Reform Project to make recommendations to increase access to justice in civil disputes. Thereafter, the Project released a Report which forms the basis for the upcoming amendments. The key changes are summarized below.
Jurisdiction
Effective January 1, 2010, the Simplified Procedure will be mandatory for all claims of $100,000 or less which will be a significant increase from the current limit set at $50,000. A corresponding amendment will increase the upper limit of claims brought in the Small Claims Court from $10,000 to $25,000.
Discovery
The new Rules emphasize time limits on examination for discovery, require the preparation of a Discovery Plan and establish principles of proportionality regarding productions and scope of discovery.
Simplified Procedure purports to reduce the costs of litigation by eliminating several procedural steps, such as examinations for discovery. As of January 1, 2010, parties in a Simplified Procedure action will have the right to conduct examinations for discovery for a maximum of two hours.
Litigants with regular actions (claims of $100,000 or more as of January 1, 2010) will be limited to conducting all of their examinations for discovery within seven hours. Parties must also agree to a written Discovery Plan and in doing so, give consideration to the "Sedona Canada Principles Addressing Electronic Discovery". In their Discovery Plan, parties must delineate key dates by which certain steps in the discovery process must occur, including the service of affidavits of documents and oral or written examinations. Failure to comply with these new requirements may result in the court's refusal to grant relief or award costs on discovery related motions.
The concept of proportionality will become a central focus in the discovery process. It is foreseeable that judges will utilize this concept to restrict questions from counsel and requests for production of documents. In determining whether a question must be answered or a document must be produced, the court will consider whether:
- the time required would be unreasonable;
- the expense would be unjustified;
- it would cause undue prejudice;
- it would unduly interfere with the orderly progress of the action;
- the information can be obtained elsewhere.
In addition, the current requirement that parties disclose all documents "related to any matter in issue" will be changed to "relevant to any matter in issue". The Civil Justice Reform Project recommended that the broad "semblance of relevance" test be replaced with a simple relevance test in order to require the production of fewer documents between parties.
Summary Judgment
The revisions to summary judgment signify perhaps the most important of all the amendments. A summary judgment motion is meant to obtain judgment on one or all of the issues in dispute without the necessity of a trial. The amendments will likely increase the number of actions that can be disposed of through a summary judgment motion rather than through a full trial.
Presently, judges must take the evidence contained in the pleadings, affidavits and cross-examination transcripts at face value. Summary judgment will not be granted if the judge finds that a material issue can only be decided by assessing credibility, weighing conflicting evidence or drawing factual inferences.
As of January 1, 2010, a judge will be permitted to weigh evidence, to evaluate the credibility of a deponent and to draw any reasonable inference from the evidence on a summary judgment motion. A new "mini-trial" power will permit a judge to order the hearing of oral evidence where the interests of justice require a brief trial to dispose of the summary judgment motion. Masters will continue to be limited to the powers conferred by the old rule.
The amendments to summary judgment also involve less onerous cost consequences on unsuccessful moving parties. The presumption of substantial indemnity will be replaced with permissive language, thereby imbuing the court with discretion to select the most appropriate cost scale in the circumstances. This change will align the costs rationale for summary judgment with the general approach towards costs on motions.
Motions
Changes to the delivery times for motion materials will also take effect on January 1, 2010. Generally, motion materials must be served at least seven days (rather than the former four days) before the date of the hearing.
Experts
The amendments to the Rules also include changes to the timing and serving of expert reports and specifying their content. Expert witness reports will be required to be served not less than 90 days before the pre-trial conference (not the trial), and responsive expert reports not less than 60 days before the pre-trial conference. The new Rule also delineates the precise contents of each expert's report, including the instructions provided to the expert in relation to the proceeding, the expert's opinion respecting each issue, and a description of research conducted to form the opinion and the sources relied upon.
Conclusion
These changes focus on increasing access to justice, reducing costs and ensuring fairness of process. It remains to be seen whether or not these objectives will be fully realized in practice, but, the spirit and intent of these changes will undoubtedly alter the course of litigation from this point onwards.
The above summary highlights only some of the most significant changes to the Rules and does not represent a comprehensive discussion of all amendments. Should you wish any further information, please do not hesitate to contact any of the lawyers at Evangelista, Barristers & Solicitors.
