Top tort cases of past 12 months clarify longstanding disputes

The top tort cases of the last 12 months contain important decisions clarifying longstanding disputes for lawyers practising personal injury and insurance defence, says Toronto critical injury lawyer Patrick Brown.

“The cases chosen touch on issues impacting different stages of the file from limitation periods when bringing an OPCF 44R claim, applications for coverage under a homeowner’s policy, disclosure of Facebook profiles, draft expert reports and Perringer agreements,” Brown, partner with McLeish Orlando LLP, writes in a paper titled Top Tort Cases of the Year, which he recently presented at The Oatley McLeish Lecture Series: Guide to Motor Vehicle Litigation.

The paper outlines five cases, starting with Moore v. Getahun, 2014 ONSC 237, which deals with draft expert reports.

‘More direct attack’

While the issue of draft reports isn’t new, the focus in previous cases “has been on the production of draft reports, and whether or not opposing counsel ought to be able to access them at trial,” writes Brown. “Justice Wilson’s recent decision in Moore takes a more direct attack on whether they should exist at all. Her Honour makes it clear, they should not.”

The decision noted Rule 53.03 was designed to address the “hired gun” approach to expert evidence, says Brown, noting: “This case has many implications to the practitioner, experts and the courts. Justice Wilson makes it clear in Moore that it is no longer appropriate for counsel to meet or speak to the expert in the report-making process.”

The next case on Brown’s list, Garacci v. Ross, 2013 ONSC 5627, discusses access to Facebook accounts.

“Social media is becoming more and more pervasive, not only in our society, but in our cases as well,” Brown’s paper says. “The Garacci decision sends a direct message to counsel that Facebook is not an open book, and proportionality and relevance will control what gets produced.”

Struck by car

The case deals with a woman who was struck by a car, and claimed she was unable to participate in the recreational and social activities that she once enjoyed due to the accident. The defendant brought a motion seeking an order that she produce approximately 1,100 photographs from her Facebook account not accessible to the public, that, the defendant claimed, showed the woman engaging in social activities and being physically active.

The motion was dismissed, with the master stating the requested photos had no relevance, writes Brown.

“Given the vast quantity of information generated through the use of Facebook as a photo album, an affidavit summarizing what is depicted in the photos, can be an effective method of negating these types of motions,” he says. “At a motion, it is prudent to present a sealed envelope with the photos to the judge or master so that they can reach their own conclusion on the issue of relevance.”

Bawden v. Wawanesa Mutual Insurance Co., 2013 ONCA 717, the third case Brown discusses, has to do with homeowners’ exclusions and third-party claims.

“The Bawden decision clarifies that there is a difference between a claim by a resident against a policyholder and an indirect claim by a third party against a policyholder,” Brown writes.

Limitation periods

Schmitz (Litigation Guardian of) v. Lombard General Insurance Co. of Canada, 2014 ONCA 88, which deals with limitation periods, is another important case, writes Brown.

“The issue of how to protect a plaintiff’s entitlement to bring an uninsured or underinsured claim has become fraught with conflicting decisions as to when the limitation period starts to run,” he writes. “The Court of Appeal’s decision in Schmitz provides guidance on these issues, but shifts the grounds of future disputes to whether the insurer has been afforded meaningful participation in the litigation and whether the court’s findings are binding on the insurer.”

The final case Brown speaks to in his paper is Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCJ No. 37, which discusses disclosure of quantum of Perringer agreements.

“Perringer agreements are an effective tool for moving multi-party actions past an impasse and towards settlement,” he says. “A common feature is that the terms of the settlement are often disclosed to the other parties, with the exception of the quantum of the settlement. At issue in Sable was whether or not the settling defendants were required to disclose the amount of the settlement to the non-settling defendant.”

In the end, Justice Rosalie Silberman Abella concluded “that the arguments in favour of disclosing the quantum of the settlement did not outweigh public policy in favour of promoting settlement,” writes Brown.

“Justice Abella’s strong support of the traditional Perringer mechanisms ensures that they remain an effective tool for settlement.”