Jevco Insurance Company v. Pacific Assessment Centre Inc., a.k.a. Pacific Rehab and Therapy Inc., et al.

[Indexed as: Jevco Insurance Co. v. Pacific Assessment Centre Inc.]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Molloy, Linhares de Sousa and Wilton-Siegel JJ.

December 23, 2015

128 O.R. (3d) 518 | 2015 ONSC 7751

Case Summary

Torts — Conspiracy — Doctrine of merger not applying at pleadings stage — Plaintiff free to plead both nominate tort and conspiracy to commit nominate tort — Question of whether conspiracy claim is redundant should be left for trial judge to determine.

The plaintiffs brought an action for damages for fraud, fraudulent misrepresentation and/or unjust enrichment and conspiracy, and also sought aggravated and/or punitive damages. The defendants moved to strike the conspiracy claim based on the doctrine of merger, arguing that the conspiracy claim was redundant as the plaintiffs were claiming damages for the nominate torts. The motion was dismissed. The defendants appealed.

Held, the appeal should be dismissed.

The doctrine of merger should not be applied at the pleadings stage. It should be left to the trial judge to determine if causes of action overlap to such a degree that one merges in the other.

Cases referred to

Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, J.E. 90-1436, 49 B.C.L.R. (2d) 273, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105, 23 A.C.W.S. (3d) 101, apld

Allstate Insurance Co. of Canada v. Fairview Assessment Centre Inc., [2013] O.J. No. 3849, 2013 ONSC 5446 (S.C.J.); Apple Bee Shirts Ltd. v. Lax, [1988] O.J. No. 658, 27 C.P.C. (2d) 226, 10 A.C.W.S. (3d) 115 (H.C.J.); Aristocrat Restaurants Ltd. v. Ontario, [2004] O.J. No. 5164 (S.C.J.); Beaver Lumber Inc. v. Hamer, [2004] O.J. No. 2014, [2004] O.T.C. 411, 35 C.L.R. (3d) 165, 131 A.C.W.S. (3d) 40 (S.C.J.); D.G. Jewelry Inc. v. Cyberdiam Canada Ltd., [2002] O.J. No. 1465, [2002] O.T.C. 251, 21 C.P.C. (5th) 174, 113 A.C.W.S. (3d) 378 (S.C.J.); Dominion of Canada General Insurance Co. v. MD Consult Inc., [2013] O.J. No. 1087, 2013 ONSC 1347, 19 C.C.L.I. (5th) 306, 227 A.C.W.S. (3d) 72 (S.C.J.) [Leave to appeal to Div. Ct. refused [2013] O.J. No. 5072, 2013 ONSC 6906 (Div. Ct.)]; Elliott v. Canadian Broadcasting Corp. (1995), 1995 244 (ON CA), 25 O.R. (3d) 302, [1995] O.J. No. 1710, 125 D.L.R. (4th) 534, 82 O.A.C. 115, 38 C.P.C. (3d) 332, 62 C.P.R. (3d) 19, 55 A.C.W.S. (3d) 1090 (C.A.), affg (1993), 1994 10569 (ON SC), 16 O.R. (3d) 677, [1993] O.J. No. 3204, 108 D.L.R. (4th) 385, 52 C.P.R. (3d) 145, 44 A.C.W.S. (3d) 1297 (Gen. Div.) [Leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 393]; Graye v. Filliter, [1997] O.J. No. 1243, 1997 CarswellOnt 5335 (Gen. Div.); McKenna v. Gammon Gold Inc., [2011] O.J. No. 3240, 2011 ONSC 3782, 87 C.C.L.T. (3d) 123, 13 C.P.C. (7th) 232, 204 A.C.W.S. (3d) 717 (Div. Ct.); Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97, [1998] O.J. No. 391, 155 D.L.R. (4th) 627, 113 O.A.C. 375, 41 C.C.L.T. (2d) 282, 17 C.P.C. (4th) 170, 77 A.C.W.S. (3d) 518 (C.A.), affg (1996), 1996 8210 (ON SC), 30 O.R. (3d) 531, [1996] O.J. No. 3655, 140 D.L.R. (4th) 550, 16 O.T.C. 63, 4 C.P.C. (4th) 64, 66 A.C.W.S. (3d) 638 (Gen. Div.); Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd. (1991), 1991 7050 (ON SC), 3 O.R. (3d) 684, [1991] O.J. No. 915, 27 A.C.W.S. (3d) 189 (Gen. Div.); [page519] Ward v. Lewis, [1955] 1 All E.R. 55, [1955] 1 W.L.R. 9 (C.A.); Wolf v. Ontario (Attorney General), [2012] O.J. No. 569, 2012 ONSC 72 (S.C.J.); Yordanes v. Bank of Nova Scotia (2006), 2006 1777 (ON SC), 78 O.R. (3d) 590, [2006] O.J. No. 280, [2006] O.T.C. 81, 15 B.L.R. (4th) 220, 23 C.P.C. (6th) 7, 145 A.C.W.S. (3d) 206 (S.C.J.), consd

Other cases referred to

2038724 Ontario Ltd v. Quizno's Canada Restaurant Corp. (2010), 100 O.R. (3d) 721, [2010] O.J. No. 2683, 2010 ONCA 466, 265 O.A.C. 134, 320 D.L.R. (4th) 612, 87 C.P.C. (6th) 375, 191 A.C.W.S. (3d) 727, affg (2009), 2009 23374 (ON SCDC), 96 O.R. (3d) 252, [2009] O.J. No. 1874, 70 C.P.C. (6th) 27, 250 O.A.C. 87, 178 A.C.W.S. (3d) 312 (Div. Ct.), revg (2008), 2008 8421 (ON SC), 89 O.R. (3d) 252, [2008] O.J. No. 833, 56 C.P.C. (6th) 88, 165 A.C.W.S. (3d) 785 (S.C.J.); Apotex Inc. v. Plantey USA Inc., 2005 15481 (ON SC), [2005] O.J. No. 1860, [2005] O.T.C. 348, 5 B.L.R. (4th) 116, 139 A.C.W.S. (3d) 52 (S.C.J.); Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 23 (SCC), [1983] 1 S.C.R. 452, [1983] S.C.J. No. 33, 145 D.L.R. (3d) 385, 47 N.R. 191, [1983] 6 W.W.R. 385, 21 B.L.R. 254, 24 C.C.L.T. 111, 72 C.P.R. (2d) 1, 19 A.C.W.S. (2d) 352; Cineplex Corp. v. Viking Rideau Corp., [1985] O.J. No. 304, 28 B.L.R. 212, 29 A.C.W.S. (2d) 350 (H.C.J.); Economical Insurance Co. v. Fairview Assessment Centre (August 26, 2011), Toronto (Ont. S.C.J.), Hainey J. [Leave to appeal to Div. Ct. refused [2011] O.J. No. 5863, 2011 ONSC 7535 (Div. Ct.)]; Harcourt v. Solloway Mills & Co., [1931] O.J. No. 128, 40 O.W.N. 214 (H.C.J.); Jevco Insurance Co. v. Pacific Assessment Centre Inc. (2014), 120 O.R. (3d) 43, [2014] O.J. No. 1704, 2014 ONSC 2244 (S.C.J.) [Leave to appeal granted [2015] O.J. No. 343, 2015 ONSC 432, 19 C.C.L.T. (4th) 38, 248 A.C.W.S. (3d) 968 (Div. Ct.)]; McCreight v. Canada (Attorney General) (2013), 116 O.R. (3d) 429, [2013] O.J. No. 3263, 2013 ONCA 483, 287 C.R.R. (2d) 272, 308 O.A.C. 128, 4 C.C.L.T. (4th) 44, 230 A.C.W.S. (3d) 389; Perth Insurance Co. v. Osler Rehabilitation Centre Inc., [2013] O.J. No. 5408, 2013 ONSC 7033 (S.C.J.); Robinson v. Medtronic, Inc., [2010] O.J. No. 1325, 2010 ONSC 1739, 186 A.C.W.S. (3d) 1167 (S.C.J.); Robinson v. Medtronic, Inc., [2009] O.J. No. 4366, 80 C.P.C. (6th) 87, 2009 56746, 181 A.C.W.S. (3d) 427 (S.C.J.); State Farm Mutual Automobile Insurance Co. v. Assessment Direct Inc., 2014 CarswellOnt 19136 (S.C.J.); State Farm Mutual Automobile Insurance Co. v. Assessment Direct Inc. (2014), 120 O.R. (3d) 422, [2014] O.J. No. 2589, 2014 ONSC 2877 (S.C.J.); State Farm Mutual Automobile Insurance Co. v. Assessment Direct Inc., [2015] O.J. No. 6836, 2015 ONSC 7774 (Div. Ct.)

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46 [as am.]

Insurance Act, R.S.O. 1990, c. I.8, s. 439

Securities Act, R.S.O. 1990, c. S.5, s. 130 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21

Authorities referred to

Fridman, G.H.L., The Law of Torts in Canada, Vol. 2 (Toronto: Carswell, 1990)

APPEAL from an order dismissing a motion to strike a conspiracy claim.

Aldo Picchetti, for plaintiff/respondent. [page520]

James McReynolds, for Pacific Assessment Centre Inc., a.k.a. Pacific Rehab and Therapy Inc., Fairview Assessment Centre Inc., Vitali Tourkov and Alexandre Lobatch.

The judgment of the court was delivered by

MOLLOY J.: —

A. Introduction

[1] At the centre of this appeal lies a well-established principle of law articulated by Lord Denning in 1954 as follows:[^1]

[W]hen a tort has been committed by two or more persons an allegation of a prior conspiracy to commit the tort adds nothing. The prior agreement merges in the tort.

[2] The principle has become known as the merger doctrine. The underlying basis is simple. In order to establish a case in civil conspiracy, the plaintiff must have been damaged in some way. The plaintiff is entitled to compensation for that injury, but the plaintiff is not entitled to be paid twice for the same harm. If the conspiracy that injured the plaintiff is carried out through an unlawful act, and that unlawful act caused the damages, then the conspiracy claim adds nothing. The damages are the same. At the time of judgment, the conspiracy claim is merged in the tort claim and the plaintiff receives only one award of damages. The question that arises in this case is whether the merger doctrine should be applied at the pleadings stage.

[3] This action alleges an elaborate insurance fraud scheme. Jevco Insurance Company ("Jevco") is an automobile insurer and as such provides statutory accident benefits to its insureds. The various defendants operate centres that purport to provide medical assessments, rehabilitation services and other treatments for individuals who are injured in automobile accidents. Jevco alleges that from August 2009, and possibly earlier, the defendants submitted fraudulent assessments and claims to Jevco, causing Jevco to improperly pay over $500,000. Jevco commenced an action claiming $2 million in damages for fraud, fraudulent misrepresentation and/or unjust enrichment; $2 million in damages for conspiracy; and $2 million in aggravated and/or punitive damages.

[4] The defendants moved to strike the conspiracy claim based on the doctrine of merger, arguing that the same damages were [page521] claimed and the conspiracy pleading was therefore redundant. For reasons dated April 8, 2014,[^2] Perell J. dismissed the motion for three reasons: (1) it is not plain and obvious that Jevco has not alleged additional special damages flowing from conspiracy; (2) it is not plain and obvious that the conspiracy claim is redundant with the tort claims; and (3) it is time to clarify the law by ruling that the doctrine of merger is not a bar to alternative claims in tort and conspiracy at the pleading stage.

[5] Leave to appeal to the Divisional Court was granted by Harvison Young J. on the basis that there are conflicting decisions on this point creating a level of confusion that warrants clarification at an appellate level.[^3]

[6] This appeal was argued together with an appeal from the decision of Penny J. dated January 29, 2014 in State Farm Mutual Automobile Insurance Co. v. Assessment Direct Inc., a case strikingly similar to the Jevco action.[^4]

[7] In the State Farm action, State Farm alleges that it paid over $1.4 million to Assessment Direct Inc. for fraudulent and false claims submitted by Assessment Direct purportedly for medical assessments, rehabilitation and other treatments in relation to persons insured with State Farm. The statement of claim seeks $3 million in damages for fraud, fraudulent misrepresentation and/or unjust enrichment; $3 million in damages for conspiracy; and $5 million in aggravated and/or punitive damages.

[8] The defendants moved to strike the conspiracy claim on the same basis as was argued in the Jevco action. The motion was argued before Penny J., who dismissed it for reasons set out in a 22-page handwritten endorsement dated January 29, 2014.[^5] Penny J. referred to a number of conflicting decisions dealing with the application of the merger doctrine at the pleadings stage and noted that the "matter is not free from doubt". However, he found that the pleading of tort and the pleading of conspiracy were not identical because the conspiracy pleading alleged an agreement between the Assessment Direct and the [page522] four individual defendants to engage in "unfair or deceptive acts or practices" contrary to s. 439 of the Insurance Act, R.S.O. 1990, c. I.8. Penny J. concluded that it was best to leave the merger issue to be decided on a full record at trial and that it was not plain and obvious at that stage that the conspiracy claim must necessarily merge.

[9] Leave to appeal from the decision of Penny J. was granted by Lederer J. for reasons dated April 28, 2014.[^6] Lederer J. found that there was reason to doubt the correctness of the decision based on the merger doctrine, noting that the same facts were pleaded in support of both causes of action. He concluded that the purported difference between the tort and conspiracy claims was one of form, not substance. Lederer J. referred to the decision of Perell J. in Jevco, as well as many of the other conflicting cases on this subject, and concluded that this issue raises matters of general public importance such that leave to appeal should be granted.

[10] This decision will focus on the Jevco case. The issue

raised by the appeal is a question of law. The parties agree

that the standard of review is correctness.[^7]

[11] For the reasons set out below, I agree with Perell J. that the time has come to clarify that the doctrine of merger should not be applied at the pleading stage. In my view, that conclusion flows directly from the Supreme Court of Canada's decision in Hunt v. Carey[^8] and is supported by policy objectives. For the same reasons, the decision of Penny J. in State Farm is also affirmed, with a brief endorsement to that effect separately reported at [2015] O.J. No. 6836, 2015 ONSC 7774 (Div. Ct.).

B. General Legal Principles on Pleading Conspiracy

The Rule 21 test

[12] The motion to strike the pleading in this case was brought under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The leading authority on the test to be applied on such a motion is the Supreme Court of Canada's decision in Hunt v. Carey,[^9] dealing with the equivalent provision in the [page523] British Columbia Rules. Wilson J. (for the unanimous court) held, on p. 979 S.C.R., at para. 33:

Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).

(Emphasis added)

[13] This is the test applied by the motion judge.

The elements of the tort of conspiracy

[14] Interestingly, the challenged pleading in Hunt v. Carey was an allegation of conspiracy, which was pleaded along with other causes of action. The plaintiff worked as an electrician in various mining operations operated by the defendants and was exposed to asbestos fibres in the course of that work. He contracted mesothelioma. In addition to suing the defendants in negligence, the plaintiff alleged that the defendants knew the hazards of asbestos and deliberately conspired to withhold that information, with the result that he developed the disease. One of the defendants sought to have the conspiracy claim dismissed as disclosing no cause of action.

[15] Before turning to whether the test for striking the conspiracy pleading was met, Wilson J. considered the current state of the law in Canada with respect to the tort of conspiracy, drawing mainly on the Supreme Court's decision seven years earlier in Canada Cement LaFarge Ltd. v. B.C. Lightweight Aggregate Ltd.[^10] That case still represents the applicable law on the requisite elements to establish the tort of conspiracy, as was recognized by the motion judge in this case.

[16] In Hunt v. Carey (at para. 42), Wilson J. quoted the following excerpt, from pp. 471-72 S.C.R. of Canada Cement LaFarge: [page524]

Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim against them in combination as the tort of conspiracy if:

(1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or,

(2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.

In situation (2) it is not necessary that the predominant purpose of the defendants' conduct be to cause injury to the plaintiff but, in the prevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to the plaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff.

(Emphasis added by Wilson J.)

[17] Further, Wilson J. referred to an excerpt from Professor Fridman's text on torts as "a useful summary of the current state of the law in Canada with respect to the tort of conspiracy", quoting it as follows:[^11]

In modern Canada, therefore, conspiracy as a tort comprehends three distinct situations. In the first place there will be an actionable conspiracy if two or more persons agree and combine to act unlawfully with the predominating purpose of injuring the plaintiff. Second, there will be an actionable conspiracy if the defendants combine to act lawfully with the predominating purpose of injuring the plaintiff. Third, an actionable conspiracy will exist if defendants combine to act unlawfully, their conduct is directed towards the plaintiff (or the plaintiff and others), and the likelihood of injury to the plaintiff is known to the defendants or should have been known to them in the circumstances.

[18] In the case before this court, the motion judge summarized the elements of the tort of conspiracy as follows (at para. 50) [(2014), 2014 ONSC 2244, 120 O.R. (3d) 43, [2014] O.J. No. 1704 (S.C.J.)]:

The constituent elements of the tort of conspiracy are: (1) two or more defendants make an agreement to injure the plaintiff; (2) the defendants (a) use some means (lawful or unlawful) for the predominate purpose of injuring the plaintiff, or (b) use unlawful means with knowledge that their acts were aimed at the plaintiff and knowing or constructively knowing that their acts would result in injury to the plaintiff; (3) the defendants act in furtherance of their agreement to injure; and, (4) the plaintiff suffers damages as a result of the defendants' conduct. [page525]

[19] This is a succinct and correct summary of the law. The motion judge also held that the requisite elements of the tort were pleaded by the plaintiff. The defendants do not take issue with that finding. However, they take the position that regardless of whether the conspiracy elements are properly pleaded, the doctrine of merger applies and the conspiracy merges with the claim in tort.

The doctrine of merger

[20] The doctrine of merger applies in a situation where there is a conspiracy to commit a tort, and the tort is actually committed. The theory behind merger is that once the planned tort is actually committed, the harm flows from the tort and the pleading of conspiracy is therefore redundant.

[21] As I indicated above, cases dealing with this issue often referred to the decision of Lord Denning in Ward v. Lewis. In that case, the plaintiff, who was an osteopath, alleged he had been slandered by the defendants, and further alleged that the defendants had conspired together to utter the slanders against him. When asked for particulars of the special damages caused by the conspiracy, he first said there were none. His claim was struck out. He then sought leave to amend to add an averment that after the slanders the value of his business had been cut in half. The master gave leave to amend, which was upheld by Gerrard J. However, on further appeal, the Court of Appeal disallowed the amendment with brief oral reasons by Denning L.J. and Morris L.J., both of whom stated that the basis for their decision was the plaintiff's failure to plead any causal connection between the conspiracy and the damages claimed. Lord Denning stated"[i]In this case, the allegation of conspiracy fails for the simple reason that there is no nexus alleged between the falling off in practice and the slanders which are alleged."

[22] Although this is the clear ratio decidendi of the case, it is the obiter comments by Lord Denning that are frequently relied upon for striking out conspiracy claims at the pleadings stage, based on the doctrine of merger. Lord Denning's remarks on the issue, in their entirety, are as follows, at p. 56 All E.R.:

It is important to remember (and we had a case only last week on this point) that when a tort has been committed by two or more persons an allegation of a prior conspiracy to commit the tort adds nothing. The prior agreement merges in the tort. A party is not allowed to gain an added advantage by charging conspiracy when the agreement has become merged in the tort. It is sometimes sought, by charging conspiracy, to get an added advantage, for instance in proceedings for discovery, or by getting in evidence which would not be admissible in a straight action in tort, or to overcome substantive rules of law, such as here, the rules about republication of slanders. When [page526] the court sees attempts of that kind being made, it will discourage them by striking out the allegation of conspiracy, on the simple ground that the conspiracy adds nothing when the tort has in fact been committed.

[23] As noted by the motion judge in this case, an adjunct to the merger doctrine is the "special damages" principle. It is clear that damages are an essential element of the tort of conspiracy, no matter which manner of committing the tort is relied upon. However, there are cases which have determined that the damages caused by the conspiracy must be "special" or distinct from the damages caused by the underlying tort. This is connected to the merger principle in that, if the same damages are alleged to have been caused by the tort, then the conspiracy claim adds nothing and is redundant.[^12]

[24] In an earlier decision in another case, Robinson v. Medtronic,[^13] Perell J. dealt with this issue and the reasons for a specific pleading of special damages in the following manner (at paras. 12-13):

I believe that a plaintiff advancing a cause of action for civil conspiracy must plead the special damages associated with the civil conspiracy for three reasons. The first reason is that the case law establishes that damages are a constituent element of the tort of civil conspiracy. The second reason is that the law about civil conspiracy is still being developed and its scope may be determined by the types of damages for which it would provide compensation. Thus, it is necessary to identify what damages were caused by the civil conspiracy even if those damages might overlap with damages caused by another tort. The third reason is that by the plaintiff specifying the damages for the conspiracy, the defendant is given fair notice so that it can plead the defence, the merits of which would be decided at trial, that the tort of civil conspiracy merged with the plaintiff's proof of another tort.

If, as is the situation in the case at bar, a plaintiff's pleaded damages for negligence are the same as the special damages pleaded for the civil conspiracy, I see no reason for striking out the pleading of the special damages. At the trial, it may come to pass that the Plaintiffs' claim in negligence fails but their civil conspiracy claim might succeed based on some other wrongful act and the proof of the other constituent elements of the tort of civil conspiracy including the special damages associated with the civil conspiracy.

(Emphasis added) [page527]

C. Ontario Cases Applying these Principles

[25] In a number of cases, the issue of the application of the doctrine of merger has been raised but did not form the basis of the decision, or was referred to only as obiter dicta.

[26] In Normart Management Ltd. v. West Hill Redevelopment Co.,[^14] the plaintiff had sued in conspiracy, breach of contract and breach of fiduciary duty. Pitt J. held that it was not possible for the plaintiff to be successful in conspiracy unless either breach of contract or breach of fiduciary duty was proven. Therefore, the conspiracy claim could have no impact on the success or failure of the litigation and should be struck. He also held [at para. 10] that "A conspiracy that does not result in damages is not actionable and the conspiracy becomes irrelevant if the breach of contract or fiduciary duty is proved."

[27] The plaintiff appealed to the Court of Appeal, which upheld the decision of Pitt J. in the result. However, the main basis expressed by the Court of Appeal for finding the conspiracy pleading to be unsustainable was that the conspiracy alleged was between the directors of a corporation who were alleged to have conspired to cause the corporation to act in breach of contract and breach of fiduciary duty. The Court of Appeal held that the appellant was thus trying to convert a straightforward action against a corporation into a personal action against the directors of the corporation in the absence of any indication those persons were acting in their personal capacities rather than on behalf of the corporation. The court further found that the cause of action, as pleaded, didn't fall within any of the categories of conspiracy identified in Canada Cement LaFarge. The Court of Appeal did not decide the doctrine of merger issue, holding, at para. 30:

Since I have found that the tort of conspiracy has not been pleaded adequately, it follows that there can be no merger. However, should the appellant choose to serve an amended statement of claim pursuant to leave which I propose to give, it might well be that this will become a problem that must then be faced.

[28] Similarly, in Aristocrat Restaurants Ltd. v. Ontario,[^15] Epstein J., as she then was, struck out in their entirety the statements of claim in three related actions. The plaintiffs in [page528] each case were businesses licensed to operate "adult entertainment parlours" and all had been subject of a joint forces police investigation into suspected prostitution and sexual exploitation. The defendants were various police forces and government departments that had been part of the planning and execution of the investigation. Numerous causes of action were pleaded, all of which were struck out, largely because of defects in the pleadings. The basis for striking the cause of action in conspiracy was that the pleading did not set out the requisite elements of the tort, e.g., the parties involved, the purpose or objects of the conspiracy, the overt acts done in furtherance of the conspiracy, who had carried out those acts, and injury suffered by the plaintiff. In setting out the law on conspiracy, Epstein J. first stated the elements of conspiracy and then held, at para. 37:

One further important aspect about pleading the tort of conspiracy must be kept in mind. The plaintiff cannot simply plead that the defendants entered into a conspiracy to commit a ton [sic] and then committed the tort. In such a case, the doctrine of merger provides that the agreement merges with the tort. The pleading must allege damages resulting from the conspiracy that are separate and distinct from those allegedly suffered as a result of the tort itself. See: D.G. Jewelry Inc., supra.

[29] However, Epstein J. did not make a finding with respect to merger, holding (at para. 46):

Since I have found that the tort of conspiracy has not been pleaded adequately it follows that there can be no merger. However, if the plaintiffs choose to serve amended pleading pursuant to the leave I have given, it may be that merger will become a problem that must then be faced.

[30] In D.G. Jewelry Inc. v. Cyberdiam Canada Ltd.,[^16] Croll J. struck out a conspiracy claim for failure to plead the requisite elements of conspiracy with sufficient particularity. She then went on to hold that even if proper particulars had been included, the doctrine of merger would apply. Citing as authority Lord Denning's decision in Ward v. Lewis and the Court of Appeal decision in Normart, she held, at para. 37:

For both the employment claim and the contractual claim, it is impossible to distinguish the facts pleaded in support of the conspiracy and in support of the specific allegations in tort. As a result, the conspiracy claims, had they been properly established, would nonetheless be defective because of the doctrine of merger. The plaintiffs cannot plead that the defendants committed a tort, and in addition, without any additional or different allegations, that the defendants entered into a conspiracy to commit that tort. [page529]

[31] The decision of Montgomery J. in Elliott v. Canadian Broadcasting Corp.[^17] is another similar case. The plaintiff, on behalf of himself and other veteran Canadian airmen who had served in World War II, brought a class action against the CBC and others arising from the publication of a made-for-TV movie entitled "The Valour and the Horror -- The Boys of Bomber Command" and the book upon which the film was based. The plaintiffs alleged that the book and film were full of inaccuracies and generally denigrated the role of Canadian airmen in the War. Montgomery J. held [at para. 10] that the "very essence of the claim is defamation". He then went on to strike the claim based on defamation, reasoning that while the words complained of may have been disparaging of the British War Office and High Command, they did not disparage Canadian air crews. He further held [at para. 37] that although other causes of action were raised, they were merely subsidiary to defamation and "inexorably lead back to the alleged harm and damage to reputation". Montgomery, in obiter, went on to deal with some of those subsidiary causes of action. In dealing with the claim in conspiracy, he noted that the unlawful means was the uttering of falsehoods and innuendo, which is the same as the publication of the alleged defamatory statements. He held that if the claim for defamation could not be sustained, neither could conspiracy because there would be no unlawful means. Relying on Apple Bee Shirts and Ward v. Lewis, he held (at para. 50)"Further, because there was publication of the words complained of the conspiracy and the tort of defamation merge, they planned to do something and they did it." The Court of Appeal upheld the decision of Montgomery J. in two separate concurring judgments. Both were based entirely on the defamation cause of action and do not refer to the merger doctrine in relation to the conspiracy claim. Leave to appeal to the Supreme Court of Canada was denied.

[32] However, there are a number of other decisions in which motion judges have dealt squarely with the issue and held that, where the conspiracy claim adds nothing to the claim based on the nominate tort, it should be struck. For example, in Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd.,[^18] Lang J., [page530] as she then was, struck out a conspiracy pleading without leave to amend because it added nothing to the claim based in fraud and was therefore superfluous.

[33] Likewise, in Apple Bee Shirts Ltd. v. Lax,[^19] Gray J. struck out a conspiracy claim (para. 33 of the statement of claim) for failure to meet the rules of proper particularity in pleading. He then stated, at para. 32"By the same token, paragraph 33 in its plea of conspiracy adds nothing because the basic position of the plaintiffs is that Farrant, the Bank and Lax planned to do something and then actually did it". He held that this involved a "so-called merger", referring to the words of Lord Denning in Ward v. Lewis.

[34] Also, in Graye v. Filliter,[^20] the plaintiff had sued a number of defendants for breach of confidence and violation of privacy based on an allegation that they disseminated information about the plaintiff that they knew to be confidential for the purpose of damaging his reputation in the business community. The plaintiff also sued the same individuals for conspiracy, alleging that they had conspired together to damage him in this way. Ground J. held that the facts upon which the conspiracy was based were the same facts pleaded in support of the other torts and there was no special injury or damage as a result of the conspiracy, as opposed to the torts. Therefore, he struck out a conspiracy claim based on the doctrine of merger.

[35] Pollak J. took a similar approach in Wolf v. Ontario (Attorney General).[^21] Mr. Wolf had been charged and convicted of fraud under the Criminal Code, R.S.C. 1985, c. C-46 and sentenced to a term of imprisonment. His conviction and sentence was upheld by the Court of Appeal. He brought a civil action against various police and government agencies and individuals alleging malicious prosecution and false imprisonment in connection with the criminal charges that resulted in his incarceration. Pollak J. struck out the claims based on malicious prosecution, false arrest and unjust imprisonment as failing to disclose a cause of action, the conviction on the criminal charges being fatal to those causes of action. Mr. Wolf had also asserted a cause of action for the tort of conspiracy. Pollak J. dismissed that cause of action based on the doctrine of merger, holding that the [page531] conspiracy claim did not result in any damages not connected to the nominate torts, was subsumed by the other torts and was redundant.

[36] However, not all judges have taken this approach. In Beaver Lumber Inc. v. Hamer,[^22] the plaintiff had sued for damages for conspiracy, unlawful bid-rigging, negligent and/or fraudulent misrepresentation and unjust enrichment. The defendants moved to strike various portions of the claim and argued that the conspiracy claim should be struck in its entirety based on the doctrine of merger. Fedak J. refused to strike the claim, relying on the Supreme Court's decision in Hunt v. Carey. He held (at para. 42) that although merger may occur where the plaintiff succeeds at trial under a distinct nominate tort"merely pleading that a defendant(s) committed other torts is not a ban to also pleading conspiracy". He noted that facts alleged in support of various different causes of action often overlap, and that it is not fatal to a conspiracy claim that the facts pleaded also support other causes of action. Fedak J. did acknowledge that it might be appropriate to strike the conspiracy claim if it has been pleaded to obtain some kind of advantage over the defendants, but found that the defendants had not demonstrated any such advantage in that case.

[37] A similar approach was taken by Allen J. in Dominion of Canada General Insurance Co. v. MD Consult Inc.,[^23] a case strikingly similar to the one now before this court. Two insurance company plaintiffs had sued a number of assessment centre defendants (including some of the very same defendants named in this action) for fraud, fraudulent misrepresentation, conspiracy and/or unjust enrichment. The defendants sought to strike the conspiracy claim based on the doctrine of merger, just as they have done in this action. Relying on Hunt v. Carey, Allen J. held that the time for determining whether the merger doctrine applies is at trial on a full record. She also declined to strike the claims for failure to plead special damages, based on the reasoning in Robinson v. Medtronic.

[38] Sachs J. dismissed the defendants' motion for leave to appeal from the decision of Allen J., holding that it was possible that a defendant, after trial, could not be found liable for the tort [page532] of fraudulent misrepresentation, but could be found to have conspired to commit an unlawful act that was not a tort (the plaintiff having also pleaded a conspiracy to carry out an unlawful act, specifically breaches of the Insurance Act and Criminal Code). Therefore, it was not plain and obvious that the conspiracy claim would merge at trial with the tort claim.

[39] On the other hand, the opposite conclusion was reached by McCarthy J. in Allstate Insurance Co. of Canada v. Fairview Assessment Centre Inc.,[^24] another action by an insurance company alleging fraudulent and negligent misrepresentation, unjust enrichment and conspiracy against a company operating a medical assessment and rehabilitation centre. In striking out the conspiracy claim, McCarthy J. held (at para. 11):

In my view, the doctrine of merger should apply in this case such that the claim for conspiracy cannot stand together with the claim in tort for fraudulent misrepresentation. Applying the unassailable logic of Lord Denning in the English case of Ward v Lewis, [1955] 1 All E.R. 55 (C.A.), at 56, an allegation of a prior conspiracy to commit a tort adds nothing to the pleading. This is not a case where conspiracy is pleaded in the alternative because it is uncertain to the plaintiff whether the benefit claims were submitted or the charges incurred. If it were, then a claim for unjust enrichment could hardly be supported. There is nothing that needs to be left to the trial judge here; the claim in conspiracy adds nothing to the pleading as constituted. It is redundant. Applying the doctrine of merger, therefore, the claim in conspiracy cannot be maintained and must be struck.

[40] The Divisional Court in McKenna v. Gammon Gold Inc.[^25] attempted to grapple with and reconcile the emerging conflict in cases dealing with this issue. The court referred in particular to the decisions in Quizno's (which found that the tort of conspiracy could remain but that the plaintiff must assert damages arising from the conspiracy that are separate and distinct) and Yordanes v. Bank of Nova Scotia[^26] (in which the motion judge declined to require the plaintiffs to plead special damages separate from those flowing from the torts). Herman J. held (at para. 62) that [page533] the key to reconciling the differing cases was to consider "whether the allegations relating to the claim in conspiracy and the ensuing damages are substantially the same as those pleaded in another cause of action such that the conspiracy claim adds nothing". The motion judge in that case had certified a class action claim in conspiracy for making misrepresentations in a prospectus contrary to s. 130 of the Securities Act, R.S.O. 1990, c. S.5, and directed the plaintiff to deliver particulars of separate and distinct damages sustained as a result of the conspiracy. The Divisional Court held that the motion judge erred in requiring the special damages to be pleaded because it was not "plain and obvious" that the conspiracy claim added nothing to the claim based on breach of the section. The court held (at paras. 70-75):

The Gammon defendants maintain that merger is inevitable because there is no possibility that liability could be found in respect of the alleged conspiracy without liability also arising under s. 130.

However, that is not the end of the inquiry. The court must also consider whether the conspiracy claim adds anything in the event that liability for a breach of s. 130 is established.

In my opinion, the claim for punitive damages potentially goes beyond the damages arising from a breach of s. 130 because damages arising from a breach of that provision are capped. It is noteworthy that the motion judge has certified the claim for punitive damages as a common issue.

As a result, it is not plain and obvious that the conspiracy claim, as pleaded, adds nothing to the claim for breach of s. 130. It should therefore not be necessary for the plaintiff to provide particulars of damages that are separate and apart from damages arising from the s. 130 claim at the certification stage.

Given this conclusion, it is not necessary to determine at this stage whether the allegations underlying the conspiracy claim are essentially the same as those underlying the claim alleging a breach of s. 130.

I respectfully conclude that the motion judge erred when he required the plaintiff to provide particulars of damages arising from the conspiracy claim separate and apart from the damages arising from the underling tort as a precondition to the certification of the conspiracy claim.

[41] In some cases, judges have considered whether casting the conspiracy claim in a particular way takes it out of the doctrine of merger. For example, in another fraud and conspiracy action against a medical assessment centre, Economical Insurance Co. v. Fairview Assessment Centre,[^27] Hainey J. held that [page534] the statement of claim failed to plead special damages flowing from the conspiracy and was therefore deficient. He struck the conspiracy claim, but with leave to amend. However, he dismissed the argument that the doctrine of merger applied, relying on Hunt v. Carey. In particular, he accepted the plaintiffs' argument that the doctrine of merger did not apply because (a) conspiracy was only one of the torts pleaded and the determination of which tort has been established should be left to the trial judge; and (b) the conspiracy claim was based on an unlawful act (breaching the Insurance Act) and the conspiracy claim therefore did not duplicate the claims in negligence and fraudulent misrepresentation.

D. Analysis

[42] The motion judge in this case held that it was not plain and obvious that the conspiracy claim was redundant with the other tort claims and that the doctrine of merger did not apply. I agree with the argument of the respondents that the conspiracy claim advanced includes an allegation that the defendants conspired to commit unlawful acts that were not torts. In particular, the plaintiff alleges that the defendants conspired to breach various provisions of the Insurance Act. Breaching the Act is unlawful, but is not tortious. Therefore, this claim is not identical to the claims in tort, even though it is supported by the same facts. It is not possible to say that it is plain and obvious that the conspiracy claim adds nothing.

[43] I also agree with the motion judge's finding that the pleading of special damages is sufficient at this stage. Conspiracy and fraud claims are by their nature secretive and hidden from the plaintiff. It is often impossible for the plaintiff to know the full extent of its damages at the pleadings stage. However, where the conspiracy claim itself is not redundant, and where damages flowing from the conspiracy are alleged, that is sufficient to sustain the cause of action at this stage. Further, I agree with the motion judge's analysis, at paras. 12-13 in Robinson v. Medtronic, as to how the pleading of special damages should be handled (see para. 23, above).

[44] However, the motion judge's main focus in refusing to strike the claim was not on these technical ways of distinguishing this case from others so as to allow the claim to continue. Rather, he took a principled approach, going back to the root of the doctrine of merger, and concluded that it is time to put an end to the use of this doctrine as a means to strike a conspiracy claim at the pleadings stage. I agree with the approach he took and also agree that the existing law, when properly interpreted, [page535] already supports leaving the doctrine of merger to the trial judge. Further, in my view, the motion judge's analysis is not only correct in law, it makes sense from a practical access to justice standpoint.

[45] The seminal case is Hunt v. Carey. In three separate paragraphs of that decision, Wilson J. set out strong grounds for allowing a conspiracy claim to proceed to trial along with the causes of action based on the nominate torts. First, she pointed out (at para. 49) that it could well be that a conspiracy between parties to commit a tort may give rise to harm of a magnitude that is greater than tortfeasors acting alone. She states"this is precisely the kind of question that it is for the trial judge to consider in light of the evidence".

[46] Wilson J. went on to consider the argument based on merger. She saw two problems with striking a claim based on the doctrine of merger, stating as follows (at paras. 54-55):

First, while it may be arguable that if one succeeds under a distinct nominate tort against an individual defendant, then an action in conspiracy should not be available against that defendant, it is far from clear that the mere fact that a plaintiff alleges that a defendant committed other torts is a bar to pleading the tort of conspiracy. It seems to me that one can only determine whether the plaintiff should be barred from recovery under the tort of conspiracy once one ascertains whether he has established that the defendant did in fact commit the other alleged torts. And while on a motion to strike we are required to assume that the facts as pleaded are true, I do not think that it is open to us to assume that the plaintiff will necessarily succeed in persuading the court that these facts establish the commission of the other alleged nominate torts. Thus, even if one were to accept the appellants' (defendants) submission that "upon proof of the commission of the tortious acts alleged" in paragraph 20 of the plaintiff's statement of claim "the conspiracy merges with the tort", one simply could not decide whether this "merger" had taken place without first deciding whether the plaintiff had proved that the other tortious acts had been committed.

This brings me to the second difficulty I have with the defendants' submission. It seems to me totally inappropriate on a motion to strike out a statement of claim to get into the question whether the plaintiff's allegations concerning other nominate torts will be successful. This a matter that should be considered at trial where evidence with respect to the other torts can be led and where a fully informed decision about the applicability of the tort of conspiracy can be made in light of that evidence and the submissions of counsel. If the plaintiff is successful with respect to the other nominate torts, then the trial judge can consider the defendants' arguments about the unavailability of the tort of conspiracy. If the plaintiff is unsuccessful with respect to the other nominate torts, then the trial judge can consider whether he might still succeed in conspiracy. Regardless of the outcome, it seems to me inappropriate at this stage in the proceedings to reach a conclusion about the validity of the defendants' claims about merger. I believe that this matter is also properly left for the consideration of the trial judge.

(Emphasis added) [page536]

[47] Although the fact situation and the nature of the underlying torts in Hunt v. Carey are not identical to those in this case, I consider the Supreme Court of Canada to have provided a clear direction against dismissing conspiracy claims on the theory of merger at the pleadings stage. Many other causes of action are pleaded in the alternative, involving the same factual foundation. Claims based on both breach of contract and breach of fiduciary duty or on breach of contract and negligence are very common. In those cases, where the underlying facts and the harm caused are the same, the plaintiff will not be awarded two sets of damages. I see no reason why fraudulent misrepresentation and conspiracy to commit fraudulent misrepresentation should not be treated in the same way.

[48] The cases that have applied the doctrine of merger at the pleadings stage have all tended to rely on Ward v. Lewis. I note that this was not the basis for the decision in Ward v. Lewis. Further, it was apparent that the reason the judges in that case raised a concern about the conspiracy pleading was because it was thought it had been pleaded for the sole purpose of overcoming rules about the republication of slanders. Lord Denning also pointed to concerns about plaintiffs pleading conspiracy in order to gain an advantage in proceedings for discovery or in getting in evidence which would not be admissible in a straight case of tort. Ward v. Lewis was decided in 1954 when the rules for discovery and the admissibility of evidence were considerably more stringent than they are now.

[49] The application of the doctrine of merger at the pleadings stage has been inconsistent and confusing. The creativity of plaintiffs' counsel has been applied over and over again to find twists that make the conspiracy claim seem somehow distinguishable from the underlying nominate tort. Inventive defendants' counsel bring motions to strike, seeking to show that the supposed distinctions are nothing but a sham and that the heart of both claims is exactly the same. All this does is generate time-consuming and expensive interlocutory motions, delaying the parties from actually getting their cases decided.

[50] I see no downside to sticking with the rationale in Hunt v. Carey and leaving it to the trial judge to determine if causes of action overlap to such a degree that one merges in the other. It will reduce the number of pre-trial motions to strike the pleadings and also reduce the number of motions on whether questions at discovery are proper. Any expansion in the scope of discovery would actually be very slight, if there is any at all. Although counsel for the defendant asserted in this case that permitting the conspiracy claim to stand would broaden [page537] discovery rights, he was not able to give me a single example of broader discovery or production that would result in this case merely because the conspiracy claim had been added.

[51] Further, as noted in Hunt v. Carey, the fact that parties have acted in concert may well have the impact of increasing the harm. It may also be relevant to punitive damages, which are frequently pleaded together with conspiracy and fraud claims, as they are in this case. Striking the conspiracy claim at the pleading stage will only invite further controversy at discoveries as to questions about what people knew about what other people were doing and the extent to which they were working together.

[52] Accordingly, in my view, the law supports permitting the conspiracy claim to be pleaded along with other nominate torts and applying the doctrine of merger only at the end of the trial when it is known if the plaintiff has been fully successful on the nominate torts and whether there is anything added by the conspiracy claim. Further, in the interests of paring down out-of-control interlocutory proceedings and introducing consistency in the law, as a practical matter it is preferable not to resolve these types of claims at the pleadings stage.

[53] As the motion judge put it, at para. 80 of his reasons"it is time to eulogize the passing of the merger principle as a basis to challenge a pleading".

E. Conclusion and Order

[54] The appeal is dismissed. Costs of the appeal to the successful party, Jevco, are fixed at $5,000.

Appeal dismissed.

Notes

[^1]: Ward v. Lewis, [1955] 1 All E.R. 55, [1955] 1 W.L.R. 9 (C.A.), at p. 56 All E.R.

[^2]: Jevco Insurance Co. v. Pacific Assessment Centre Inc. (2014), 120 O.R. (3d) 43, [2014] O.J. No. 1704, 2014 ONSC 2244 (S.C.J.).

[^3]: Jevco Insurance Co. v. Pacific Assessment Centre Inc., [2015] O.J. No. 343, 2015 ONSC 432, 19 C.C.L.T. (4th) 38 (Div. Ct.).

[^4]: State Farm Mutual Automobile Insurance Co. v. Assessment Direct Inc., 2014 CarswellOnt 19136 (S.C.J.).

[^5]: State Farm Mutual Automobile Insurance Co. v. Assessment Direct Inc., supra, note 4.

[^6]: State Farm Mutual Automobile Insurance Co. v. Assessment Direct Inc. (2014), 120 O.R. (3d) 422, [2014] O.J. No. 2589, 2014 ONSC 2877 (S.C.J.).

[^7]: McCreight v. Canada (Attorney General) (2013), 116 O.R. (3d) 429, [2013] O.J. No. 3263, 2013 ONCA 483, at para. 38.

[^8]: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93.

[^9]: Hunt v. Carey, supra, note 8.

[^10]: Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 23 (SCC), [1983] 1 S.C.R. 452, [1983] S.C.J. No. 33.

[^11]: G.H.L. Fridman, The Law of Torts in Canada, Vol. 2 (Toronto: Carswell, 1990), at pp. 265-66; Hunt v. Carey, at p. 986 S.C.R., para. 43.

[^12]: Robinson v. Medtronic, Inc., [2010] O.J. No. 1325, 2010 ONSC 1739 (S.C.J.); Robinson v. Medtronic, Inc., [2009] O.J. No. 4366, 2009 56746 (S.C.J.); Apotex Inc. v. Plantey USA Inc., 2005 15481 (ON SC), [2005] O.J. No. 1860, [2005] O.T.C. 348 (S.C.J.); Cineplex Corp. v. Vicking Rideau Corp., [1985] O.J. No. 304, 28 B.L.R. 212 (H.C.J.); Harcourt v. Solloway Mills & Co. Ltd., [1931] O.J. No. 128, 40 O.W.N. 214 (H.C.J.), at p. 215 O.W.N.

[^13]: Robinson v. Medtronic, 2010 ONSC 1739, [2010] O.J. No. 1325, supra.

[^14]: Normart Management Ltd. v. West Hill Redevelopment Co. (1996), 1996 8210 (ON SC), 30 O.R. (3d) 531, [1996] O.J. No. 3655 (Gen. Div.), affd (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97, [1998] O.J. No. 391 (C.A.).

[^15]: Aristocrat Restaurants Ltd. v. Ontario, [2004] O.J. No. 5164 (S.C.J.).

[^16]: D.G. Jewelry Inc. v. Cyberdiam Canada Ltd., [2002] O.J. No. 1465, 21 C.P.C. (5th) 174 (S.C.J.).

[^17]: Elliott v. Canadian Broadcasting Corp. (1993), 1994 10569 (ON SC), 16 O.R. (3d) 677, [1993] O.J. No. 3204 (Gen. Div.), affd (1995), 1995 244 (ON CA), 25 O.R. (3d) 302, [1995] O.J. No. 1710 (C.A.), leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 393.

[^18]: Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd. (1991), 1991 7050 (ON SC), 3 O.R. (3d) 684, [1991] O.J. No. 915 (Gen. Div.).

[^19]: Apple Bee Shirts Ltd. v. Lax, [1988] O.J. No. 658, 27 C.P.C. (2d) 226 (H.C.J.).

[^20]: Graye v. Filliter, [1997] O.J. No. 1243, 1997 CarswellOnt 5335 (Gen. Div.).

[^21]: Wolf v. Ontario (Attorney General), [2012] O.J. No. 569, 2012 ONSC 72 (S.C.J.).

[^22]: Beaver Lumber Inc. v. Hamer, [2004] O.J. No. 2014, 35 C.L.R. (3d) 165 (S.C.J.).

[^23]: Dominion of Canada General Insurance Co. v. MD Consult Inc., [2013] O.J. No. 1087, 2013 ONSC 1347 (S.C.J.), leave to appeal to Div. Ct. refused [2013] O.J. No. 5072, 2013 ONSC 6906 (Div. Ct.).

[^24]: Allstate Insurance Co. of Canada v. Fairview Assessment Centre Inc., [2013] O.J. No. 3849, 2013 ONSC 5446 (S.C.J.); see, also, Perth Insurance Co. v. Osler Rehabilitation Centre Inc., [2013] O.J. No. 5408, 2013 ONSC 7033 (S.C.J.), per C.J. Brown J.

[^25]: McKenna v. Gammon Gold Inc., [2011] O.J. No. 3240, 2011 ONSC 3782 (Div. Ct.); 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp. (2009), 2009 23374 (ON SCDC), 96 O.R. (3d) 252, [2009] O.J. No. 1874 (Div. Ct.), revg (2008), 2008 8421 (ON SC), 89 O.R. (3d) 252, [2008] O.J. No. 833 (S.C.J.), affd (2010), 100 O.R. (3d) 721, [2010] O.J. No. 2683, 2010 ONCA 466.

[^26]: Yordanes v. Bank of Nova Scotia (2006), 2006 1777 (ON SC), 78 O.R. (3d) 590, [2006] O.J. No. 280 (S.C.J.).

[^27]: Economical Insurance Co. v. Fairview Assessment Centre (August 26, 2011), Toronto (Ont. S.C.J.), Hainey J., leave to appeal to Div. Ct. refused [2011] O.J. No. 5863, 2011 ONSC 7535 (Div. Ct.).

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