Insurers’ Exposure from Opioid Claims: Time on Risk Approach Reaffirmed Over All Sums

The recent major Ontario Court of Appeal decision Loblaw Companies Limited v. Royal & Sun Alliance Insurance Company of Canada, 2024 ONCA 145 (CanLII) was precipitated by five class action lawsuits (“Class Actions”) claiming billions of dollars against companies involved in the opioid industry. The defence costs are expected to be very significant. The question who pays these costs and how was a central issue.

The claims span over 20 years beginning in 1996 when the pharmaceutical company, Purdue, started selling the opioid, OxyContin. 

The Class Actions were brought by the Government of British Columbia and from opioid user groups from several provinces. The claims were brought against the opioid producers, pharmaceutical companies and distributors of the products including the national grocery chain Loblaw and the national drug store Shoppers Drug Mart, and a company called Sanis, which manufactured two generic opioids (“the Insureds” or “the respondents”) 

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Moffitt v. TD Canada Trust, 2023 ONCA 349

In this case, the Plaintiff was at a TD branch in Scarborough in May 2013, using a bank machine in the vestibule during the evening. As he was leaving, he started a fight with two young men waiting behind him. The Plaintiff was badly beaten as seen on surveillance video, leaving him with lasting impairments. The Plaintiff’s attacker was charged and subsequently convicted, having to serve significant jail time. The Plaintiff sued the two young men, who never defended the action, as well as TD. The Plaintiff alleged that TD had failed to keep him safe, by not having a security guard in place, not having conducted a “risk assessment” and letting the bank machine be open at night in a supposedly high crime neighborhood. David Zuber brought a summary judgment motion on behalf of TD which was ultimately heard in March 2020. The motion judge, Justice LeMay, took over a year to write his decision, and released it in September 2021, granting TD’s motion for summary judgment motion and dismissing the action.

The Plaintiff appealed based on three issues: (i) the availability of summary judgment in a civil action in which a party served a jury notice; (ii) the motion judge’s exclusion of expert evidence; and (iii) the fairness of the summary judgment process used in this case. The Court of Appeal found no merit to any of the Plaintiff’s arguments and dismissed the appeal in favour of TD.

This will likely be the leading case on the importance of jury notices in the context of a summary judgment motion.

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Great work Glen Bushi and team who were able to achieve a favorable result for our client at the License Appeal Tribunal in Ahmed v. BelairDirect, 2023 ONLAT 21-006910/AABS.

The issues in dispute were as follows:

1. Are the Applicant’s injuries predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit?
2. Is the Applicant entitled to a non-earner benefit of $185.00 per week from April 29, 2019 to April 1, 2021?
3. Is the Applicant entitled to the cost of a chronic pain assessment in the amount of $2,200.00 and a psychological assessment in the amount of $2,179.22?
4. Is the applicant entitled to interest on any overdue payment of benefits?

The LAT concluded that based on the medical record available to it and the evidence given by the Applicant during his Examination in Chief and Cross-examination, the Applicant’s injuries were predominantly minor in nature. Further, the LAT concluded that the Applicant was not entitled to non-earner benefits as he had failed to show that “he suffers from a complete inability to carry on a normal life within 104 weeks of the accident”. The LAT further concluded that the Applicant is not entitled to the cost of the examinations. To read the full decision, please click on the link below.

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Sinclair v. Amex Canada Inc., 2023 ONCA 142 – Decision Release

This appeal involved a jurisdictional issue with respect to a water taxi accident in Venice, Italy. The issue in this appeal was whether the fourth presumptive connecting factor in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, a contract connected with the dispute was made in the province, gave the Ontario Superior Court of Justice jurisdiction over the appellants (3 Italian companies) with respect to the action commenced by the respondents. The Court of Appeal unanimously allowed the appeal and stayed the action against the appellants. The majority of the Court of Appeal found that the fourth presumptive connecting factor was not established and further found that in the alternative the appellants had rebutted the presumption. This is a significant decision in the context of jurisdictional claims. At paragraph 44 the Court noted that “If the decision of the motion judge were to be upheld, it would have sweeping implications. It would mean that any person who books a trip through a credit card company that provides travel services and carries on business in Ontario would, through that fact alone, extend the jurisdiction of this province’s courts to anyone who may subsequently become involved in those travel arrangements, regardless of where in the world that involvement occurs. In my view, that result would constitute the very type of jurisdictional overreach that the decision in Van Breda was cautioning against.”
To read the full decision, please click on the link below.

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A great success. This appeal is brought by the Appellants (Plaintiffs) as a result of a motion Judge’s refusal to grant leave to bring a motion to include punitive damages in the Plaintiffs’ claim based on presumed prejudice that could not be compensated by an award of costs. The matter was set down for trial 4 years prior by the Appellants (Plaintiffs,) and certified the matter was ready for trial during two previous pre-trials. Just weeks prior the scheduled 32 day trial, the Appellants brought a motion to amend the claim to increase the amount of damages and include punitive damages. The motion judge allowed the increased damages but refused the Appellants (Plaintiffs) requests related to punitive damages resulting in this appeal. The Appellants appealed on the grounds that the motion judge erred in law as there was neither prejudice nor presumed prejudice causally related or flowing from the proposed amendment that was non-compensable, as any delay or extra work that would result from the amendment were matters compensable in costs. No explanation for the delay in bringing the motion was provided by the Appellants (Plaintiffs). The Court of Appeal dismissed the appeal.

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David Bierstone successfully brought a WSIAT application, bringing an end to a civil action in which the plaintiff fell off a roof he was working on, suffering a serious spinal injury. The plaintiff argued that he was not in an employment relationship, but was simply helping a friend and, alternatively, that he was an “independent operator”, rather than a worker. The Tribunal rejected both arguments. To read the decision please click on the link below.

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A fantastic article about an encounter with Retired Justice Thomas Zuber that demonstrates professional courtesy, role modelling and small gestures leaving behind a big impact.

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JDC Ltd. et al v. CAW Ltd et al.

This case involves a large fire that occurred in the Port of Oshawa. The Plaintiff, who was the owner of the property, was claiming over $10 million in damages. The Defendant, the tenant at the time of the fire, was relying on, among other things, a covenant to insure contained in the lease, taking the position the covenant to insure would bar the Plaintiff’s case completely. The case also included claims of negligence, breach of contract, causation and damages. Justice Carole Browne agreed with the Defendant and found that the Defendant was successful on all issues. The decision includes key issues and law including covenants to insure, contractual and lease interpretation and contra proferentem, effect of a guilty plea in a related proceeding, causation, and principles of damages including whether repair/restoration value is payable, and deductibility of insurance monies. A great result for our client!

To read the decision, click the link below.

Successful outcome in obtaining Loss Transfer Indemnity for Accident Benefits paid

In Heartland Farm Mutual v. Wawanesa Mutual Insurance Company (decision of Arbitrator Samworth, January 19, 2022), Jonathan Schwartzman successfully obtained for the Applicant loss transfer indemnity for accident benefits paid. The Respondent’s purported pre-accident cancellation of its automobile insurance policy for the heavy commercial vehicle at fault for the accident, was found to be invalid for both a failure to comply with Statutory Condition 11 of the OAP1 with respect to payment of policy premium refund, and the grounds cited for the cancellation not properly existing. As a result, the Respondent’s policy remained in effect at the time of the accident and must respond to the loss transfer indemnity claim.
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Heartland & Wawanesa – Award dated January 19, 2022

Don Dacquisto and James Tausendfreund successfully argued a coverage application on behalf of our client, Northbridge General Insurance Company relating to other insurance clauses. The underlaying action dealt with a claim against a pharmacist and Northbridge settled the claim. The respondent, Aviva Insurance Company took the position that their policy need not respond, and Northbridge took the position that 50% indemnity was owed. Justice Chalmers agreed with our client’s position and concluded that Aviva should be responsible for 50% indemnity.

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