Lerners’ Appeals Netletter Video Companion – July 2013


Toronto appellate lawyer, Cynthia Kuehl, has the Lerners’ Appellate Group Top 5 Appeals from the Ontario Court of Appeal for the month of June 2013. Alright Cynthia, let’s start with Aviva and
Lombard. Sure. The Aviva and Lombard case is about
the allocation of responsibility for a claim between two insurers. In this case, there
were two parties ultimately found liable as one defendant. Aviva insured one; Lombard
insured both. Aviva paid out the excess claim. There was a primary policy that responded
to the first part of the claim and then came after Lombard for the balance. Lombard said
no, there had been a previous priority dispute that had been resolved, that Aviva’s claim
was to respond next. Ultimately though, the Court of Appeal found in favour of Aviva,
holding that Lombard did have a responsibility to contribute half, did so on the basis of
equitable contribution insurance law, as well as on the basis of unjust enrichment and with
respect to the priority dispute it said essentially that related to the single party and Lombard
was on the hook for both. So, ultimately, Lombard had to pay half of the excess claim.
The second case is also an insurance case. It’s the Goodyear decision and Goodyear manufactures
and markets asbestos. It was unable to get any policies, insurance policies, after 1985
because of an industry cut-off. No one wanted to underwrite those risks. In the US, there
is a case called Stonewall and the development of the Stonewall Principle that essentially
says that if you had, if you were an insurer who provided coverage before the industry
cut-off date, you would continue to be responsible after the industry cut-off date because Goodyear
was essentially involuntarily under insured and Goodyear sought to have that applied in
Canada because there has been certain insurance policies issued before the industry cut-off
date here, the Court of Appeal said no, the Stonewall Principle does not apply in Ontario.
It wasn’t universally accepted in the US and, more particularly with respect to this contract,
they were time limited policies and it would be unfair to the insurers to have it apply
in this case and finally, just from public policy perspective, Goodyear was in the business
and accepted the risks of asbestos and the business risks associated with that.
Tell us about Ontario College of Pharmacists and Global Pharmacy Canada. Sure. In this
case, the College sought to regulate or essentially police what it saw were certain violations
of pharmacy related legislation as against the respondents. The respondents included
an Ontario company that operated a call centre in Mississauga and it appears an affiliated
Belize based company, which got Indian sourced drugs – prescription drugs – and sold them
via the call centre on its website to American customers. None of the drugs entered Canada
and there was no Canadian customers. Nonetheless, the Court of Appeal agreed with the College
of Pharmacists that these entities were within its jurisdiction and upheld an injunction
below on the basis that if you look at a purposive interpretation of the word sale or selling,
it included the activities that were happening in Mississauga and there was a sufficient
connection to Ontario to trigger the jurisdiction of the College of Pharmacists and importantly
here, the College of Pharmacists does have a duty to protect the public.
The fourth case is actually quite a bit different. It’s Peel Law Association and Pieters. It’s
a discrimination case where two individuals, a lawyer and an articling student, complained
to the Human Rights Tribunal that they had been discriminated against when they were
asked for identification by the Brampton Law Librarian and the Vice Chair upheld their
complaint and as since was overturned by the Divisional Court and ultimately, the Court
of Appeal restored the Vice Chair’s decision, although there’s a number of aspects which
are interesting, the key part is it found the Divisional Court applied too stringent
of a test when it required that there be a causal nexus between the ground of discrimination
and the disadvantage suffered, noting that although they had issues with the word nexus,
the real issue was the imputation for some need for causation finding that really what
you are looking at is discriminatory effects, not intentions or cause. There’s also a good
discussion in that case with respect to social science and whether or not it needs to be
in evidence. In this case, it was not in evidence but relied upon by the Vice Chair.
So, the fifth case is about doctrine of privity of contract. It’s William Sonoma and Oxford.
In that case, some tenants at the Yorkdale shopping centre sustained water damage when
during the course of construction a vandal tampered with a water or fire hose. They sued
the contractor Ellis Don and it relied though in a motion for summary judgment on a provision
in the lease that the tenants had with the landlord where it essentially required the
tenants to have their own insurance for water damage and further said the tenants were waiving
claims against the landlord and anyone for whom in law the landlord was responsible.
On appeal, the Court of Appeal agreed saying that in law responsible is wider or broader
than vicarious liability and it includes legally responsible and here the landlord was in fact
legally responsible because of certain indemnification provisions in the lease and further and relying
upon the Supreme Court of Canada two prong test in Fraser for relaxing doctrine of privity
of contract but these were essentially the activities that were being contemplated for
in the lease in that waiver of provision and, accordingly, there was a limitation of liability
and the tenants were unable to continue their suit as against the contractor.
So those are the five cases for the month of June. For details on all of the cases and
to obtain a copy of our Netletter, it’s www.lernersappeals.ca. Thank you. Thanks very much.

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