Catherine Keyes

The individual insurance broker brought a Rule 21 motion to strike the statement of claim against him in an action alleging negligence, breach of fiduciary duty, misrepresentation, and breach of contract arising from alleged failure to obtain adequate insurance coverage.

The court held that employees may be personally liable only where their conduct is independently tortious or sufficiently distinct from the employer’s conduct.

The pleading contained undifferentiated allegations against “the broker and/or” the individual employee and failed to identify specific acts attributable to the employee.

As the material facts supporting personal liability were not properly pleaded, the claim against the individual broker disclosed no reasonable cause of action.

The claim against the employee was therefore struck, with leave to amend.

Following a successful motion for leave to appeal an order refusing to strike conspiracy claims alleged to merge with fraud claims, the moving defendants sought $20,052.74 in costs.

The court considered the reasonableness of the time spent on research, drafting materials, and waiting time for the motion to be heard.

The judge held that the requested amount was excessive, particularly given that much of the work had already been completed for the initial motion and that waiting time in court should not generally be borne by the losing party.

Balancing the complexity of the legal issue with proportionality considerations, the court awarded a reduced amount.

Costs were fixed at $9,500 inclusive of HST and disbursements.

The defendants sought leave to appeal an order refusing to strike a conspiracy claim pleaded alongside fraud in an action by an insurer alleging fraudulent statutory accident benefit claims.

The defendants argued that the conspiracy claim merged with the underlying fraud and was redundant.

The court reviewed conflicting authorities regarding the doctrine of merger at the pleadings stage, including cases distinguishing between conspiracy based on a predominant intent to injure and conspiracy based on unlawful means.

The motion judge had declined to strike the claim and left the issue of merger to trial.

The court found reason to doubt the correctness of that decision and held that the broader question of whether merger can ever be applied at the pleadings stage was an issue of general importance.

Leave to appeal was therefore granted.