Court File and Parties

COURT FILE NO.: 14-62378 DATE: 2020/03/24 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

BRUCE COWLEY and FRANCINE COWLEY Plaintiffs – and – SKYJACK INC., DICKIE MOORE RENTALS, BONDFIELD CONSTRUCTION COMPANY LIMITED, FITZPATRICK ELECTRICAL CONTRACTOR INC. and CAMPBELL AND KENNEDY ELECTRIC (OTTAWA) LIMITED Defendants

COUNSEL: Paul H. Auerbach, for the Plaintiffs Kevin P. Nearing, for the defendant, Dickie Moore Rentals Colin R. Dubeau, for the defendant, Bondfield Construction Company Limited Pat C. Peloso, for the defendant, Campbell and Kennedy Electric (Ottawa) Limited

HEARD: February 21, 2020

RULING ON MOTION

Corthorn J.

Introduction

[1] The plaintiff in a tort action is entitled to be compensated as completely as possible for losses suffered as a result of the negligence of the defendant. The plaintiff is not, however, entitled to double recovery for their losses.

[2] Bruce Cowley was injured in August 2013 as a result of an industrial accident. Mr. Cowley seeks damages for economic losses, including for past and future loss of income. He is in receipt of long-term disability (“LTD”) benefits. Therefore, the potential for double recovery exists.

[3] Mr. and Mrs. Cowley (“the Plaintiffs”) seek to address the issue of double recovery prior to opening statements being made and evidence being called at trial. The Plaintiffs request a ruling from the court that the defendants are not entitled to a deduction for LTD benefits received from damages awarded, if any, for Mr. Cowley’s economic losses (“the Deduction”).

[4] The defendants are the corporate entities who were involved, in some way, in the work on the project where the accident occurred.

[5] The action is scheduled to proceed to trial before a jury for six weeks. In the ordinary course, the Plaintiffs’ motion would be heard after the selection of the jury and before the Plaintiffs’ opening statement. This motion was heard subsequent to an adjournment of the trial. On the consent of the parties, the terms of the adjournment include that (a) I shall be the trial judge, and (b) the Plaintiffs’ motion shall be treated as a motion at trial, including for the purpose of appeal.

Background

[6] In August 2013, Mr. Cowley was employed as a technical advisor with the Electrical Safety Authority (“ESA”). The ESA is an administrative authority mandated by the Government of Ontario to enhance public electrical safety in the province. The ESA operates as a private, not-for-profit corporation.

[7] Mr. Cowley was injured when working on a project involving the installation of solar panels at 830 Industrial Avenue, in the City of Ottawa (“the Project” and “the Site”, respectively). He used a skyjack to access the roof and carry out a roof-top inspection of the Project. Mr. Cowley was injured after completing the assessment. As he descended from the skyjack to the ground, his left small finger became caught in the skyjack’s latch mechanism and was torn off. The Plaintiffs’ claims are based in tort and on the relevant sections of the Occupiers Liability Act, R.S.O. 1990, c. O.2..

[8] The defendants were involved in the Project and at the Site, in the following roles:

• Skyjack Inc. (“Skyjack”) designed, manufactured, and distributed the skyjack, including to Dickie Moore Rentals (“DMR”);
• DMR owned or leased the skyjack and supplied it to Bondfield Construction Company Ltd. (“Bondfield”); and
• The plaintiffs allege that Bondfield supplied or made the skyjack available to its sub-contractors for the Project, Fitzpatrick Electrical Contractor Inc. (“Fitzpatrick”) and Campbell and Kennedy Electric (Ottawa) Ltd. (“CKE”).

[9] In May 2016, the action as against Fitzpatrick was dismissed, without costs. More recently, the Plaintiffs settled their claims against Skyjack. That settlement is in the form of a Pierringer Agreement.

[10] The action is proceeding to trial as against the remaining defendants (DMR, Bondfield, and CKE – “the Defendants”). The Plaintiffs allege that one or more of the Defendants were in control of the Site, operated the skyjack, and engaged or retained the ESA to attend at the Site and inspect the Project.

The Plaintiffs’ Motion

a) Relief Sought

[11] The Plaintiffs seek a ruling that the Defendants are not entitled to the Deduction. The Plaintiffs submit that the Defendants bear the onus of establishing that they are entitled to the Deduction. The Plaintiffs submit that, regardless of which party bears the onus on the issue of double recovery, the evidence clearly supports one of two alternative findings. First, the existence alone of the LTD insurer’s right of subrogation precludes the Defendants from entitlement to the Deduction. In the alternative, the private insurance exception applies to preclude the Defendants from entitlement to the Deduction.

[12] The Defendants submit that, because the Plaintiffs raise the issue of double recovery as a preliminary matter, the onus is on the Plaintiffs to establish that the Defendants are not entitled to the Deduction. The Defendants submit that, in any event, the evidence falls short of supporting the ruling sought by the Plaintiffs. The Defendants request that the Plaintiffs’ motion in this regard be dismissed, with prejudice. The Defendants’ position is that if the Plaintiffs’ motion is dismissed, then, they should not be permitted to bring it again at a later stage in the proceeding.

[13] The Plaintiffs also seek an evidentiary ruling precluding the Defendants from relying on Mr. Cowley’s receipt of LTD benefits for one or more of the following purposes: (a) examination or cross-examination of witnesses; (b) filing documentary evidence; and (c) opening statements, closing submissions, and argument at other points in the trial. The Defendants oppose the request for the evidentiary ruling; they submit that the request in that regard is premature and cannot be determined in an evidentiary vacuum.

[14] On the return of the motion, the Plaintiffs agreed with the Defendants. On consent, the evidentiary ruling portion of the Plaintiffs’ motion was adjourned to be determined at a later stage in the proceeding.

b) The Record Before the Court

i) The Plaintiffs’ Affidavit Evidence

[15] The Plaintiffs rely on two affidavits from Hamish McEwen-Mills (“the McEwen-Mills Affidavit(s)”). Mr. McEwen-Mills is an associate with McNally Gervan LLP, the firm representing the Plaintiffs in this action. In his first affidavit, Mr. McEwen-Mills addresses Mr. Cowley’s membership in the Society of United Professionals (“Society”), the collective bargaining agreement to which Mr. Cowley was subject at the time of the accident (“CBA”), Mr. Cowley’s receipt of LTD benefits, the LTD policy under which those benefits are paid (“Policy”), and the interest of the insurer paying those benefits (“La Capitale”).

[16] The exhibits to the first McEwen-Mills Affidavit include copies of the Policy and several letters sent by La Capitale to either Mr. Cowley or McNally Gervan. The contents of those documents provide the following information with respect to the LTD benefits that Mr. Cowley has received and continues to receive:

• The LTD benefits are based on 65 per cent of Mr. Cowley’s pre-disability income;
• The date of entitlement is February 23, 2017 and Mr. Cowley has been receiving LTD since that date;
• The change in entitlement criteria, from ‘own occupation’ to ‘any occupation’, was effective February 23, 2019;
• Mr. Cowley is also in receipt of CPP benefits, which serve to reduce the monthly benefit payable by La Capitale;
• As of July 29, 2019, La Capitale had paid LTD benefits (net of CPP benefits) totalling $166,860; and
• Section 8.6 of the Policy provides that La Capitale is “subrogated to all rights of the participant against a third party liable for damages that results in an entitlement to payment of benefits” (up to a maximum of the amount of benefits paid).

[17] The Defendants are critical of the McEwen-Mills Affidavits and request that both affidavits be struck in their entirety. In the alternative, the Defendants request that paragraphs 4, 14, and 15 of the first McEwen-Mills Affidavit (“the Impugned Paragraphs”) be struck.

[18] In light of the relief requested by the Defendants with respect to the McEwen-Mills’ Affidavits, that evidentiary issue must be determined before the substantive issues on the motion can be addressed.

ii) The Defendants’ Affidavit Evidence

[19] Before addressing the Defendants’ criticisms of the McEwen-Mills Affidavits, I turn to the affidavits upon which the Defendants rely in response to the motion.

[20] CKE was the only defendant to deliver a responding record. CKE relies on an affidavit from one of the owners of the company, Douglas Carr (“the Carr Affidavit”). In his affidavit, Mr. Carr addresses the role of the ESA, how the ESA is funded, Mr. Cowley’s option of receiving Workplace Safety and Insurance Benefits (“WSIB”) or proceeding with a civil action, and the August 2013 accident. Mr. Carr also expresses his opinion on issues of public policy that he believes are relevant to the issue of double recovery.

[21] CKE also relies on an affidavit from an associate at Gowling WLG (Canada) LLP, the firm representing CKE in the action (“the Doucet Affidavit”). In her affidavit, Ms. Doucet addresses Mr. Cowley’s evidence from his examination for discovery. A copy of the transcript from that examination is attached as an exhibit. Ms. Doucet highlights approximately 20 points taken from Mr. Cowley’s evidence on examination for discovery.

[22] In her affidavit, Ms. Doucet (a) reviews the expert’s report upon which the Plaintiffs intend to rely in support of Mr. Cowley’s claim for damages for economic losses, and (b) provides evidence with respect to whether Mr. Cowley or his employer paid the premiums for LTD benefits. In 17 paragraphs under the heading “Deficiency of Evidence Supporting Private Insurance Exception”, Ms. Doucet addresses what, in her opinion, are shortcomings in the Schedule “A” productions of the Plaintiffs.

[23] In her affidavit, Ms. Doucet also addresses matters related to a separate motion brought by the Plaintiffs. That motion deals with expert evidence; and, once again, the Plaintiffs seek a ruling at the outset of the trial. This second motion was scheduled to be heard a few weeks after this ruling was released. The disruption of the court’s schedule due to the Coronavirus outbreak resulted in the motion being adjourned indefinitely.

[24] The Plaintiffs do not request any relief related to the contents of either the Carr Affidavit or the Doucet Affidavit.

The McEwen-Mills Affidavits

[25] The first McEwen-Mills Affidavit is 20 paragraphs long. The Defendants are critical of this affidavit for three reasons. First, the Defendants submit that, in the Impugned Paragraphs, Mr. McEwen-Mills fails to properly state (a) the tertiary source of the information he sets out, and (b) his belief as to the truth of the information. The Defendants’ position is that, as a result, the entire affidavit or, in the alternative, the Impugned Paragraphs should be struck.

[26] Second, the Defendants submit that Mr. McEwen-Mills addresses a contentious issue in the Impugned Paragraphs: the extent to which there may have been trade-offs of wages for benefits as part of the collective bargaining process. The Defendants submit that solicitor affidavits which address contentious issues are routinely struck. Third, the Defendants describe the evidence as “double hearsay” and therefore inadmissible.

[27] The Defendants are critical of the second McEwen-Mills Affidavit because it is a solicitor’s affidavit.

[28] In the alternative, the Defendants’ position is that to the extent any portion of the McEwen-Mills Affidavits is found to be admissible, the evidence so admitted should be given very little, if any, weight.

[29] In response, the Plaintiffs’ position is that the court is entitled to consider the evidence with respect to the contents of the CBA, the Policy, and the letter from La Capitale addressed to McNally Gervan. The Plaintiffs submit that, when read together, those documents support a conclusion that La Capitale has chosen to exercise its right of subrogation with respect to the LTD benefits paid to Mr. Cowley; and, at a minimum, those documents are evidence of the existence of La Capitale’s right of subrogation.

[30] The Plaintiffs’ position on the substantive issues addressed in the McEwen-Mills Affidavits is that the existence alone of the right of subrogation is sufficient to preclude the Defendants from entitlement to the Deduction.

c) Affidavit Evidence Based on Information and Belief

i) The Law

[31] The contents of an affidavit for use on a motion are governed by rr. 4.06(2) and 39.01(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The former subrule requires that the contents of an affidavit “be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise.”

[32] Subrule 39.01(4) is an example of where the Rules provide otherwise. It states that, “An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.”

[33] In Cameron v. Taylor, Granger J. summarized the state of the law, as it was in 1992, with respect to affidavits, for use on a motion or on an application, based on information and belief: 1992 CarswellOnt 3360 (Ont. Ct. Gen. Div.), at para. 24. He therein listed the following six points (citations omitted):

(i) failure to state the source of information and belief in an affidavit is not a mere technicality; (ii) [t]he courts have waived the irregularity of an affidavit that did not provide the source of information and belief, even in the face of an objection, and have had regard to the offending paragraphs but failed to order costs; (iii) paragraphs in affidavits for use on motions or applications which fail to state the source of the information and belief are not automatically struck; (iv) paragraphs in affidavits for use on motions or applications which fail to state the source of the information and belief as to non-contentious matters can be saved through the application of rule 1.04; (v) paragraphs in affidavits for use on an application, which fail to state the source of the information and belief as to contentious matters should be struck; (vi) paragraphs in affidavits for use on applications which fail to state the source of the information and belief on non-contentious matters may be saved if the exhibits to the affidavit or other evidence filed on the motion reveals the source of the information and belief.

[34] The six points listed above do not explicitly address the options available to the court when a motion record includes evidence based on information and belief with respect to a contentious matter and to which there is an objection (i.e., the circumstances on the motion before the court).

ii) Analysis

[35] In paragraph 4 of his first affidavit, Mr. McEwen-Mills says, “I am advised by Mr. Cowley and verily believe that the terms of employment for ESA employees are collectively bargained for by the Society of United Professionals on behalf of its members.” The Defendants do not dispute that Mr. Cowley was a member of the Society at the material time. I find that Mr. McEwen-Mills properly identified the source and his belief as to the truth of the information set out in paragraph 4. I find that paragraph 4 complies with r. 39.01(4).

[36] In paragraph 14, Mr. McEwen-Mills addresses Mr. Cowley’s membership in the Society, including the membership’s duration of 20 years. The Defendants do not take issue with that portion of paragraph 14. They are critical of the second sentence, which reads as follows: “I am further advised by Mr. Cowley and verily believe that he has always understood that wages and benefits are negotiated together, and necessarily involve trade-offs, and that ESA members indirectly pay for [and negotiate] the benefits described in the [Collective Bargaining Agreement]”.

[37] I find that Mr. McEwen-Mills properly identifies the source and his belief as to the truth of the information set out in the second sentence of paragraph 14. I find that paragraph 14 complies with r. 39.01(4). I note, however, that the evidence is limited to Mr. McEwen-Mills’ belief as to Mr. Cowley’s “understanding” of the subject matter. The weight, if any, to be given to that evidence is another matter.

[38] In paragraph 15, Mr. McEwen-Mills provides information about a letter sent by the Local Vice President of the ESA bargaining unit to Paul Auerbach. Mr. Auerbach is senior counsel at McNally Gervan LLP and has carriage of the Cowleys’ action. He is also counsel on the motion.

[39] Mr. McEwen-Mills therein says, “I am advised by Mr. Auerbach that on January 16, 2020 [the] Local Vice President…wrote to him and confirmed that wages and benefits are negotiated together, involving trade-offs.” A copy of the letter is attached as an exhibit. The letter is two paragraphs long. In the first paragraph, the author introduces himself as the Local Vice President. In the second paragraph, he says:

The purpose of this letter is to confirm that through the collective bargaining process, the Society of United Professionals negotiates the working conditions and total compensation of its members at the Electrical Safety Authority, including wages, pensions and benefits. Historically, the total compensation is negotiated as a whole and may involve trade-offs between elements, including wages, pensions and benefits, to reach agreement at the bargaining table.

[40] In paragraph 15, Mr. McEwen-Mills does not state his belief as to the truth of the information provided by Mr. Auerbach. That information, is however, restricted to Mr. Auerbach’s statement that he received the letter, a copy of which is attached as Exhibit “E”. The receipt by Mr. Auerbach of that letter is not a contentious issue.

[41] Subrule 1.04(1) mandates that the Rules of Civil Procedure shall “be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” On the basis of subrule 1.04(1), I find it appropriate to waive the irregularity in paragraph 15 of the first McEwen-Mills Affidavit.

[42] In the end, the evidence in paragraph 15 is that Mr. Auerbach received the letter from La Capitale, a copy of which is attached as Exhibit “E” to the first McEwen-Mills Affidavit. The contents of the letter, and the extent, if any, to which the contents are admissible as evidence on the motion are separate issues.

iii) Conclusion

[43] The request for the Impugned Paragraphs to be struck on the basis that they fail to comply with r. 39.01(4) is dismissed. The dismissal of that request does not, however, end the consideration of the relief requested by the Defendants with respect to the McEwen-Mills Affidavits. I turn to the Defendants’ request that both affidavits be struck in their entirety because they are both a solicitor’s affidavit.

d) Solicitors’ Affidavits

[44] This motion is being treated as one brought at the outset of trial; the substantive issues on the motion are whether (a) the existence alone of a right of subrogation, in the context of double recovery, is a complete answer to the Defendants’ request for the Deduction, and (b) section 30 of the Workplace Safety and Insurance Act, S.O. 1997, c. 16, is relevant to the Defendants’ entitlement to the Deduction.

[45] This issue of double recovery is raised in the statements of defence delivered by each of Skyjack, DMR, and CKE. That issue is not raised in Bondfield’s pleading. Using the same wording in their respective pleadings, each of Skyjack, DMR, and CKE plead that they are entitled to a deduction for collateral benefits including those received from a “private insurer”.

[46] The Defendants are critical of the McEwen-Mills Affidavits as they relate to whether the private insurance exception applies, or subrogation rights apply, to preclude the Defendants’ entitlement to the Deduction. The Defendants submit that both are contentious issues.

[47] The Defendants are critical of the first McEwen-Mills Affidavit because of the solicitor’s reliance on information from Mr. Cowley and Mr. Auerbach with respect to (a) the trade-off, in the collective bargaining process, between wages and the employer funding of premiums for benefits, including LTD benefits, and (b) the existence of La Capitale’s right of subrogation. The Defendants submit that first-hand evidence is required from Mr. Cowley, a member of the executive of the Society, and/or a representative of La Capitale.

[48] The second McEwen-Mills Affidavit is nine paragraphs long. In the seven substantive paragraphs, Mr. McEwen-Mills refers to papers prepared by the Fraser Institute, the U.S. Bureau of Labor Statistics, and Statistics Canada. Each paper addresses wage and non-wage benefits for employees. A copy of each paper is attached as an exhibit.

[49] In the final two substantive paragraphs, Mr. McEwen-Mills states his belief that the court “may appropriately take judicial notice” of two facts. The first fact is set out in paragraph 7 as follows: “the cost of labour includes both wage and non-wage benefits, and that workers ‘earn’ non-wage benefits every bit as much as they ‘earn’ wages.” The second fact is set out in paragraph 8 as follows: “negotiation of a collective bargaining agreement involves trade-offs between wages and benefits and therefore, an employee pays directly for non-wage benefits.”

[50] The Defendants are critical of the Plaintiffs’ reliance on a solicitor’s affidavit for this purpose. The Defendants submit that the Plaintiffs’ reliance on the papers attached as exhibits is not sufficient for the purpose identified in the second McEwen-Mills Affidavit.

i) The Law

[51] The decision of Master MacLeod (as he then was) in Mapletoft v. Christopher J. Service, is frequently cited for its review of the problems that arise from the reliance on a solicitor’s affidavit: see 2008 ONSC 6935. At paragraph 15, Master MacLeod emphasized that a partner, associate lawyer, or member of a clerical staff may swear an affidavit that deals with “simple matters of record”; affidavits of that kind may not be essential but may be convenient for the purpose of organization and identification of key portions of the evidence.

[52] Master MacLeod said that, in circumstances where evidence from counsel with carriage of the file is relied on, “it is preferable for counsel to swear the affidavit and have other counsel argue the motion”: ibid. Master MacLeod concluded that a solicitor’s affidavit will “not be appropriate for highly contentious issues that may form part of the evidence at trial”: ibid. He cautioned that if the evidence of counsel becomes necessary for trial on a contentious issue, the client may have to retain another law firm: ibid.

[53] In his review of the use of a solicitor’s affidavit, Master MacLeod referred to Rule 4.02 of the Rules of Professional Conduct. Rule 4.02(1) is titled “Submission of Affidavit” and says: “Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not submit his or her own affidavit to the tribunal.” The Commentary to Rule 4.02 provides guidance to lawyers who swear affidavits for the purpose of motions and other matters. It is therein recommended that the “lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge.” In other words, a solicitor’s affidavit should not be relied on with respect to contentious matters.

ii) Analysis

[54] In support of the substantive relief requested, the Plaintiffs rely on the private insurance exception or, in the alternative, La Capitale’s right of subrogation with respect to LTD benefits paid. The Plaintiffs and the Defendants agree that for the private insurance exception to apply, the court must find that some form of consideration was paid or given up by Mr. Cowley in return for the LTD benefits: see Cunningham v. Wheeler, 1994 SCC 120, [1994] 1 S.C.R. 359, at pp. 407-408. The Plaintiffs rely on the McEwen-Mills Affidavits as evidence of the requisite consideration having been paid or given up by Mr. Cowley.

[55] The Plaintiffs and the Defendants disagree on the law with respect to subrogation and double recovery. That issue is discussed in a subsequent section of this ruling. The Plaintiffs rely on the first McEwen-Mills Affidavit and, specifically, the Policy wording to support a finding of fact that La Capitale has a right of subrogation based either in contract or in equity.

[56] The Plaintiffs were prepared from the outset to proceed with this motion at trial, relying on two solicitor’s affidavits as the only supporting evidence. The Plaintiffs’ motion record was served prior to the January 2020 date on which the trial of this action was scheduled to proceed. The record was also served prior to the date on which a trial management conference was conducted – the conference at which the parties agreed to the terms of the adjournment set out above.

[57] Mr. Auerbach alone is identified as the lawyer of record for the Plaintiffs. Mr. McEwen-Mills is not identified as a lawyer of record for the Plaintiffs. The Plaintiffs’ reliance on his affidavits is, nonetheless, problematic.

[58] The subject matters addressed in the McEwen-Mills Affidavits are not “simple matters of record”: Mapletoft, at para. 5. Nor are these subject matters “a recitation of largely non-contentious background for a motion”: Garrick v. Dalzine, 2015 ONSC 2175, at para. 7. The essential nature of the McEwen-Mills Affidavits extends well beyond “background”: ibid.

[59] It is helpful to consider the context in which the issue of double recovery is determined, whether based on the private insurance exception or subrogation. The issue of double recovery is not determined by the jury; it is typically determined by the trial judge on a post-verdict motion made by the defendant seeking a reduction, from damages awarded, for collateral benefits paid. This is so regardless of whether the defendant’s position is that the private insurance exception does not apply or that subrogation rights are not relevant in the circumstances of the case.

[60] The evidence on the post-verdict motion may include evidence given during the trial and additional evidence upon which the parties seek to rely. The additional evidence may be in affidavit form or be provided through viva voce testimony. Regardless of the form in which the evidence is provided, the opposing party has the right of cross-examination.

[61] It is difficult to picture how, in this context, a solicitor’s affidavit would be appropriate to address the factual issues to be determined. A solicitor’s affidavit would not be sufficient to address the relevant facts. The court would not expect to receive evidence from an associate or a partner of Plaintiffs’ counsel on matters such as (a) consideration paid or given in exchange for the benefits in question, and (b) a third party’s right of subrogation. The court would expect first-hand evidence from the individuals and entities involved, the latter through their respective representatives.

[62] Turning to the second McEwen-Mills Affidavit, it consists of opinion and argument and is inappropriate: Mapletoft, at para. 15(c). In it, Mr. McEwen-Mills addresses matters that are properly the subject of argument; namely, whether the court is entitled to take judicial notice of two facts. For that reason, the second McEwen-Mills Affidavit is struck in its entirety.

iii) The Potential to Save Paragraphs of the McEwen-Mills Affidavits

[63] Can any paragraphs from the McEwen-Mills Affidavits be saved because their contents consist of non-contentious background, or because they address simple matters of record? That question is difficult to answer because for several paragraphs in the affidavit there is no way to know whether Mr. McEwen-Mills is relying on personal knowledge, information he received from another, or information garnered from a review of the Cowleys’ file.

[64] In Csak v. Mokos, 1995 ONSC 17861, [1995] O.J. No. 4027, 18 R.F.L. (4th) 161, at paras. 10, 13, and 14, Master Clark was critical of an associate lawyer who swore an affidavit in response to a motion for the removal of senior counsel with whom she worked as lawyers of record for the defendant in the action. In her affidavit, the associate identified that she was junior counsel, and that she had “attended a number of hearings and most of the pre-trials” in the matter. She specifically said, “As such, I have knowledge of the matters hereinafter deposed to.” She also identified that for matters about which she did not have personal knowledge, she had been informed by senior counsel and verily believed the information to be true.

[65] Master Clark was critical of the associate lawyer for failing to identify the specific hearings and pre-trials she attended. He concluded that absent such a list there was “no way to distinguish [the associate lawyer’s] personal knowledge from information she received from another”: para. 13. As a result, the evidence did not comply with r. 39.01(4), and the affidavit was struck in its entirety.

[66] My criticisms of the first McEwen-Mills Affidavit are in the same vein. In paragraph 1 of his affidavit, Mr. McEwen-Mills says, “I am an associate at McNally Gervan LLP, lawyers for the plaintiffs herein and as such have knowledge of the facts and matters to which are hereinafter deposed.” He did not add boilerplate language to the effect that, where the contents of the affidavits are based on information and belief, he identified the source of the information and verily believes it to be true. He does not say that he has reviewed the file, reviewed the plaintiffs’ Schedule “A” documents, or that he has met with the plaintiffs, or representatives of one or more of the Society, the ESA, and La Capitale.

[67] As a result, it is not possible for the court to ascertain Mr. McEwen-Mills’ involvement in this matter before he swore the two affidavits. The only substantive paragraph that is identifiably based on Mr. McEwen-Mills’ personal knowledge is paragraph 17. Therein, he states that he reviewed a Government of Canada form related to CPP Disability Benefits and he provides a brief quote from the form.

[68] Of the remaining substantive paragraphs, seven are based on information received from one of Mr. Cowley or Mr. Auerbach. Five of those paragraphs relate to the contentious issue of the Deduction. The other two paragraphs relate to communication between counsel as to their respective client’s position on the Deduction issue and are not of any assistance to the court in determining the substantive issues.

[69] In the ten other substantive paragraphs, Mr. McEwen-Mills

• identifies the date of the accident, and refers to Mr. Cowley’s injuries and inability to work since August 2015;
• addresses Mr. Cowley’s employment with the ESA and membership in the Society;
• quotes from the CBA in force on the date of the accident;
• attaches a copy of and quotes from the Policy;
• attaches copies of letters sent by La Capitale to Mr. Cowley regarding his entitlement to LTD benefits; and
• attaches a copy of the July 2019 letter sent by La Capitale to Mr. Auerbach.

[70] Little, if any of the evidence in those 10 paragraphs is based on personal knowledge. Absent the general problem with the reliance on a solicitor’s affidavit, there is little evidentiary value in the contents of the first McEwen-Mills Affidavit.

iv) Conclusion

[71] For the reasons set out above, both McEwen-Mills Affidavits are struck in their entirety.

[72] The Plaintiffs do not, at this point, seek any relief related to the contents the affidavits upon which the Defendants rely in response to the motion with respect to double recovery. It is nonetheless notable that the Carr Affidavit and the Doucet Affidavit warrant several of the same criticisms to which the McEwen-Mills Affidavits are subject.

[73] For example, the irony is not lost on me that the Defendants are highly critical of the Plaintiffs’ reliance on a solicitor’s affidavit and, notwithstanding that, the Defendants’ also proffered a solicitor’s affidavit. As another example, and as noted above, Mr. Carr offers opinions on matters of public policy without demonstrating that he has the requisite expertise to offer such opinions.

[74] As there are no findings of fact made in this ruling, it is not necessary for me to discuss in any greater detail the shortcomings of the affidavits upon which the Defendants rely.

The Substantive Issues

[75] The Plaintiffs and Defendants agreed to proceed with this motion as a term of the adjournment of the trial. Proceeding with the motion at this time was intended as an effort to narrow the issues to be determined at a later stage in the proceeding, to position the parties to have meaningful settlement discussions, and to assist the parties in their preparation for trial.

[76] The striking of the McEwen-Mills Affidavits does not mean that the benefits of hearing the motion are entirely lost. It is still possible to determine two of the issues of law raised on the motion. Those issues are whether (a) the existence alone of a right of subrogation is a complete answer to the Defendants’ request for the Deduction, and (b) section 30 of the Workplace Safety and Insurance Act, S.O. 1997, c. 16, is relevant to the Defendants’ entitlement to the Deduction.

[77] I turn to those substantive issues.

Subrogation and Double Recovery

[78] The Defendants do not concede that La Capitale has a subrogated interest, whether arising in equity or based on the Policy.

[79] The substantive issue determined in this section of the ruling is whether the existence of a right of subrogation alone (i.e., assuming La Capitale has one) is a complete answer to the Defendants’ request for the Deduction.

a) Positions of the Parties

i) The Plaintiffs

[80] The Plaintiffs’ position is that the existence of La Capitale’s right of subrogation – exercised or not – is a complete answer to the Defendants’ request for the Deduction. The Plaintiffs rely on the decision of the Supreme Court of Canada in Cunningham v. Wheeler, 1994 SCC 120, [1994] 1 S.C.R. 359. They submit that the existence of a right of subrogation is sufficient to disentitle a defendant in a tort action to a deduction, for wage benefits, from damages awarded for economic losses: pp. 415-416.

[81] The Plaintiffs also submit that it does not matter whether La Capitale’s subrogated interest is an equitable interest or is based in contract (i.e., the Policy). The Plaintiffs point to the payment of LTD benefits by La Capitale to Mr. Cowley as giving rise to an equitable right of subrogation. The Plaintiffs submit that no findings of fact are required because the Defendants do not dispute that Mr. Cowley has been receiving and continues to receive LTD benefits.

ii) The Defendants

[82] The Defendants’ position is that the law with respect to rights of subrogation and double recovery has evolved since the decision in Cunningham. The Defendants rely on the decision of the Supreme Court of Canada in IBM Canada Limited v. Waterman, 2013 SCC 70, [2013] 3 S.C.R. 985. The Defendants submit that, in IBM, the Court (a) established a new approach to the issue of double recovery, and (b) identified five factors to be considered when determining whether the private insurance exception applies. Relying on this new approach, the Defendants submit that they are entitled to the Deduction unless the Plaintiffs are able to establish that the LTD benefits paid to Mr. Cowley fall within the private insurance exception.

[83] The Defendants also submit that in Waterman there is no consideration given to or conclusion reached regarding subrogation as a complete answer to such a request; as a result, a right of subrogation is not a complete answer to the Defendants’ request for the Deduction.

[84] The Defendants’ position is that the decision in Waterman is based on the minority reasons of McLachlin J. in Cunningham. The Defendants submit that in her minority reasons in Cunningham, McLachlin J. expressly rejected subrogation as a complete answer to a request for the deduction of wage benefits from damages awarded for economic losses. The Defendants assert that she did so because of the lack of efficacy of subrogation as a complete answer in that regard.

b) The Law and Analysis

[85] In Cunningham, the Supreme Court of Canada heard three appeals together, all of which dealt with whether benefits that formed part of a collectively bargained compensation package fell within the private insurance exception to the deduction of collateral benefits. In each of the three cases, the Court concluded that the benefits received by the injured plaintiff should not be deducted from the damages awarded for economic losses. The majority decision in Cunningham was written by Cory J.

[86] After concluding as he did with respect to the private insurance exception, Cory J., in a single paragraph, addressed subrogation in the context of the issue of double recovery. At pp. 415-416, he said the following:

Generally, subrogation has no relevance in a consideration of the deductibility of the disability benefits if they are found to be in the nature of insurance. However, if the benefits are not "insurance" then the issue of subrogation will be determinative. If the benefits are not shown to fall within the insurance exception, then they must be deducted from the wage claim that is recovered. However, if the third party who paid the benefits has a right of subrogation then there should not be any deduction. It does not matter whether the right of subrogation is exercised or not. The exercise of the right is a matter that rests solely between the plaintiff and the third party. The failure to exercise the right cannot in any way affect the defendant's liability for damages. However, different considerations might well apply in a situation where the third party has formally released its subrogation right. (Emphasis in original.)

[87] Cory J. thereafter concluded his reasons by addressing the other issue on the appeals – whether damages for economic losses should be reduced because they are not taxable. The decision on that issue is not relevant to subrogation and double recovery.

[88] The Defendants rely on the minority reasons of McLachlin J. in Cunningham as they relate to both the private insurance exception and subrogation. McLachlin J. dissented in part from the majority. She concluded that the private insurance exception is to be narrowly confined: p. 390.

[89] With respect to subrogation, McLachlin J. emphasized that, as of 1994 when Cunningham was decided, rights of subrogation appeared to be exercised rarely: p. 387. She relied on the contents of a document prepared by the Ontario Law Reform Commission and titled, “Report on Compensation for Personal Injuries and Death (1987)” (“the Report”). At pages 189-190, the authors of the Report stated that they were advised “that disability insurers and employers generally do not exercise their rights of subrogation”: p. 387.

[90] Regardless of the apparent lack of frequency with which rights of subrogation were exercised, McLachlin J. expressed the opinion that benefits paid pursuant to an employee benefits plan should be deducted from damages awarded for economic losses if a right of subrogation is being exercised by the third party paying those benefits: pp. 386, 388, 390, and 392-393. McLachlin J. used slightly different language on each occasion that she addressed the issue:

• At p. 386: “The argument that it makes sense for the tortfeasor to pay damages for wage losses already indemnified by others succeeds only if the employer or insurer who pays the wage benefit recovers the damages allocated to lost wages from the employee by way of subrogation.”
• At p. 388: “[T]he best approach is a regime of deductibility of employment plan benefits, subject to the plaintiff’s right to claim the benefits if it is established that they will be paid over to the subrogated third party.”
• At p. 390: “Employment benefit plans, on the other hand, designed to indemnify the plaintiff for the inability to work, would be deductible from claims for lost earning capacity unless the plaintiff establishes that he or she is bringing the claim on behalf of a subrogated third party.”
• At pp. 392-393: “I conclude that principle, precedent and policy all favour the conclusion that wage benefits paid pursuant to employment plans should be deducted from damages for loss of earnings claimed against the tortfeasor, except where it is established that a right of subrogation will be exercised, thereby avoiding double recovery.”

[91] Despite the slightly different language used in each paragraph, it is apparent that McLachlin J.’s opinion is that the right of subrogation is a complete answer to a request for the deduction from damages for loss of earning only if that right is exercised. In that regard she differs from the majority opinion as expressed by Cory J. at pp. 415-416 quoted above.

[92] It is important to consider the context in which McLachlin J.’s reasons were written. First, the focus of her dissenting reasons was whether the private insurance exception introduced in the English decision of Bradburn v. Great Western Railway Co. (1874), L.R. 10 Ex 1 should be narrowly confined. McLachlin J. concluded that it should be narrowly confined. Subrogation was not the focus of her reasons.

[93] Second, it appears that in 1994 the right of subrogation was rarely being exercised. The authors of the Report provided several reasons in support of their statement to that effect. At p. 387 of her decision, McLachlin J. referred to those reasons:

• The cost-benefit analysis was such that employers preferred to spread amounts paid through their own funding structure rather than to incur expenses in attempting to recover amounts paid;
• The exercise of a right of subrogation was viewed by employers as impractical and costly, particularly where recovery would not occur until months or years after the benefits were provided;
• Employers often did not have an effective means of monitoring the progress of the injured employee’s claim or to identify the portion of any settlement reached that represented lost wages; and
• Employers were reluctant to exercise their right of subrogation because of the potential detrimental impact of doing so on employee relations.

[94] Nine years later, in 2013, the Supreme Court of Canada once again considered the private insurance exception. It did so in Waterman, a wrongful dismissal case in which the issue was whether pension benefits which Mr. Waterman began to draw after the termination of his employment reduced the damages otherwise payable by IBM for wrongful dismissal. At para. 3 of his decision for the majority, Cromwell J. described the issue of deduction of collateral benefits as “one of the most difficult topics in the law of damages”.

[95] Cromwell J. reviewed the law with respect to the private insurance exception and set out five factors to be considered when determining whether the private insurance exception applies. Those factors, listed at para. 76, are:

(a) There is no single marker to sort which benefits fall within the private insurance exception. (b) One widely accepted factor relates to the nature and purpose of the benefit. The more closely the benefit is, in nature and purpose, an indemnity against the type of loss caused by the defendant’s breach, the stronger the case for deduction. The converse is also true. (c) Whether the plaintiff has contributed to the benefit remains a relevant consideration, although the basis for this is debatable. (d) In general, a benefit will not be deducted if it is not an indemnity for the loss caused by the breach and the plaintiff has contributed in order to obtain entitlement to it. (e) There is room in the analysis of the deduction issue for broader policy considerations such as the desirability of equal treatment of those in similar situations, the possibility of providing incentives for socially desirable conduct, and the need for clear rules that are easy to apply.

[96] These five factors are part of the new approach to the private insurance exception upon which the Defendants rely. The Defendants submit that these factors stem, at least in part, from the reliance placed by the majority in Waterman on the minority reasons of McLachlin J. in Cunningham. For example, at para. 59, Cromwell J. highlights that (a) the “nature and purpose of the benefit was central” to McLachlin J.’s reasons, and (b) McLachlin J. distinguished between indemnity and non-indemnity payments, with the former being deductible and the latter not being deductible.

[97] As another example, at para. 67, Cromwell J. expressed agreement with McLachlin J.’s conclusion that reliance, as a factor, on the extent to which the injured plaintiff has directly or indirectly contributed to the benefit is inconsistent with logic and legal principle.

[98] The Defendants submit that nowhere in Waterman does Cromwell J. give any consideration to the impact of subrogation on the issue of double recovery or reach any conclusion in that regard. I agree with the Defendants that subrogation is not mentioned in the five factors quoted above. The lack of mention of subrogation in those factors is not, however, determinative of the impact of the existence of a right of subrogation on this new approach to the issue of double recovery.

[99] In addition, the Defendants’ submission entirely overlooks the contents of paras. 24 and 41 of Cromwell J.’s reasons. At para. 24, in examining when a collateral benefit problem arises, Cromwell J. stated explicitly that

[f]or example, there is no excess recovery if the party supplying the benefit is subrogated to – that is, steps into the place of – the plaintiff and recovers the value of the benefit. In those circumstances, the defendant pays the damages he or she has caused, the party who supplied the benefit is reimbursed out of the damages and the plaintiff retains compensation only to the extent that he or she has actually suffered a loss.

[100] In support of that statement, Cromwell J. cited McLachlin J. in her minority reasons. Regardless of the reference to the minority reasons and the discussion therein of subrogation, I find nothing in the statement of law expressed by Cromwell J. that constitutes an evolution from the law as stated by Cory J. at pp. 415-416 of Cunningham. I interpret para. 24, quoted immediately above, as a description of the right subrogation and an example of what happens when that right is exercised.

[101] Examining when collateral benefits are not deducted, Cromwell J. considered the private insurance exception. At para. 41, he stated that the core of the exception is well-established but that its precise scope and the rationale for the exception have been debated by the judiciary and scholars. He thereafter noted, however, that the practical importance of the private insurance exception “is limited given the widespread use of subrogation, which avoids the compensating advantage issue altogether.”

[102] I find it significant that in 2013 the Court considered the right of subrogation to be in “widespread use”. I contrast the situation in 2013 with McLachlin J.’s observation, some 20 years earlier, that the right of subrogation was rarely exercised.

[103] In addition, I interpret the word “use” in para. 41 to mean the widespread existence of the right of subrogation. I do not interpret “use” to mean widespread existence and exercise of the right of subrogation. I find that para. 41 does not represent an evolution from the law as stated by Cory J. at pp. 415-416 of Cunningham.

[104] In summary, I reject the Defendants’ submission that the decision in Waterman represents an evolution of the law with respect to subrogation and the issue of double recovery. I agree with the Plaintiffs that the law in that regard remains as stated by Cory J. in Cunningham: the existence alone of a right of subrogation is sufficient to disentitle the Defendants from the Deduction.

[105] There are practical reasons why, as Cory J. said, the exercise of a right of subrogation “is a matter that rests solely between the plaintiff and the third party” paying the benefits: pp. 415-416. The extent to which a subrogated third party is ultimately able to recover benefits paid depends on many factors, including (a) the terms of the contract, if any, pursuant to which such benefits are paid, and (b) whether the plaintiff achieves full or less than full recovery of economic losses. If the third party and the plaintiff are unable to agree upon the amount to be repaid to the third party, that dispute is resolved without any involvement whatsoever of the tortfeasor.

[106] The Plaintiffs submit that it matters not whether the right of subrogation arises in equity or is based in contract. In that regard, they rely on the decision of the British Columbia Supreme Court in Provost v. Bolton, 2018 BCSC 1090, 30 M.V.R. (7th) 90. The plaintiff in that case was an RCMP officer who sustained injuries as a result of a motor vehicle accident he was involved in while on duty. The damages claimed by Cpl. Provost included $37,000 he was paid by the RCMP while he was totally disabled from working and thereafter when participating in a graduated return to work program.

[107] The Attorney General of Canada (“A.G. Can.”) commenced a companion action, which was tried at the same time as Cpl. Provost’s action. In its action, the A.G. Can. did not include a claim for the $37,000 paid to Cpl. Provost; it included a claim for medical costs and rehabilitation costs incurred for the corporal’s benefit.

[108] The trial judge described the plaintiff’s claim for the $37,000 as “very much in the nature of a subrogated claim” (para. 44) and one which “raises the perplexing problem of whether collateral benefits are deductible from a damages award” (para. 46). The trial judge also noted that the A.G. Can. submitted that it had the right to pursue the $37,000 and advanced arguments in support of the corporal’s claim for that amount: ibid.

[109] The trial judge reviewed the decisions of the Supreme Court of Canada in Ratych v. Bloomer, 1990 SCC 97, Cunningham, and Waterman. After completing that review, at paras. 58-61, he

• concluded that no evidence was required to establish the RCMP’s equitable right of subrogation,
• found that such a right existed,
• concluded that an equitable right of subrogation was sufficient to preclude a deduction for wage benefits paid, and
• stated that whether the subrogated third party actually recovered from Cpl. Provost the benefits paid was a matter that rested between the corporal and the third party.

[110] I agree with that interpretation of the law with respect to subrogation and double recovery.

[111] This Court is not bound by a decision of the British Columbia Supreme Court. While it would be helpful to have a decision from this Court on the subject, I note that the cases upon which the trial judge in Provost relied with respect to the significance of the equitable right of subrogation include decisions from the Ontario Court of Appeal and the Privy Council. The principles upon which the trial judge relied are long-standing. I agree with the trial judge’s application of those principles.

c) Conclusion

[112] The existence of a right of subrogation – whether arising in equity or based in contract – is a complete answer to the Defendants’ request for the Deduction.

The Workplace Safety and Insurance Act

a) The Defendants’ Respective Pleadings

[113] Each of the Defendants alleges in their respective pleadings that the Workplace Safety and Insurance Act, S.O. 1997, c. 16 (“WSIA”) is relevant to Mr. Cowley’s claim for damages for economic losses. For example, DMR and CKE each plead that they are respectively entitled to a “release of any and all obligations” to the extent that the Plaintiffs “have or were entitled to receive benefits from the Worker’s Safety Insurance Board”. Bondfield relies on the provisions of WSIA in pleading that (a) the Plaintiffs are precluded from pursuing this action, and (b) the liability of the ESA, as Mr. Cowley’s employer, is relevant to the determination of the overall issue of liability for Mr. Cowley’s injuries and the Plaintiffs’ losses.

[114] None of the Defendants cites, in their respective pleading, the sections of the WSIA upon which they rely in support of the various allegations made. In any event, I make no findings with respect to the issues raised in the Defendants’ respective pleadings.

b) WSIA and Double Recovery

[115] For the purpose of the motion, and specifically on the issue of double recovery, the Defendants rely on s. 30(14)-(15) of the WSIA. Those sections address cases in which a worker chooses to pursue a civil action instead of receiving WSIB. They set out how the amount of a payment, if any, by Workplace Safety and Insurance Act Tribunal (“WISAT”) to the worker subsequent to resolution of the civil action is calculated:

If worker elects to commence action

(14) The following rules apply if the worker or survivor elects to commence the action instead of claiming benefits under the insurance plan:

1. The worker or survivor is entitled to receive benefits under the insurance plan to the extent that, in a judgment in the action, the worker or survivor is awarded less than the amount described in paragraph 3.
2. If the worker or survivor settles the action and the Board approves the settlement before it is made, the worker or survivor is entitled to receive benefits under the insurance plan to the extent that the amount of the settlement is less than the amount described in paragraph 3.
3. For the purposes of paragraphs 1 and 2, the amount is the cost to the Board of the benefits that would have been provided under the plan to the worker or survivor, if the worker or survivor had elected to claim benefits under the plan instead of commencing the action.

Determining amount

(15) For the purpose of determining the amount of benefits a worker or survivor is entitled to under subsection (14), the amount of a judgment in an action or the amount of a settlement shall be calculated as including the amount of any benefits that have been or will be received by the worker or survivor from any other source if those benefits,

(a) have reduced the amount for which the defendant is liable to the worker or survivor in the action; or (b) would have been payable by the defendant but for an immunity granted to the defendant under any law.

[116] The “insurance plan” referred to in s. 30(14) means the benefits and obligations set out in Parts III to IX of the WSIA: s. 2(1).

[117] The Defendants submit that under ss. 30(14)-(15), there exists the possibility that Mr. Cowley will, following resolution of this action, turn to the WSIAT. That possibility, the Defendants submit, creates uncertainty as to the Cowleys’ ultimate total recovery and gives rise to the potential for double recovery even if it is ultimately found that La Capitale has and exercises a right of subrogation.

[118] The Plaintiffs interpret ss. 30(14)-(15) differently. They submit that those sections are intended to preclude double recovery and ensure that a worker who pursues a civil action ends up in the same position they would have been in if they had chosen to receive WSIB (i.e., instead of pursuing a civil action). I agree.

[119] Under s. 30(14), the worker will receive WSIB, if required, to top up the amount of a judgment or settlement if that amount is less than the WSIB that would have been paid to the worker had they chosen WSIB (i.e., instead of pursuing a civil action). The end result of s. 30(15) is that it precludes double recovery as between any WSIB paid and benefits paid by a third party, such as an LTD insurer.

c) Summary

[120] I find that ss. 30(14)-(15) of the WSIA do not impact Mr. Cowley’s claim for damages for economic losses in the context of this action. Those sections are not relevant to the determination, in this action, of the question of mixed fact and law as to whether La Capitale’s right of subrogation (if found to exist) is a complete answer to the Defendants’ request for the Deduction.

Summary of Substantive Rulings

[121] The substantive rulings made are that

• the existence of a right of subrogation – whether arising in equity or based in contract – is a complete answer to the Defendants’ request for the Deduction, and
• ss. 30(14)-(15) of the WSIA are not relevant to the determination, in this action, of the question of mixed fact and law as to whether La Capitale’s right of subrogation (if found to exist) is a complete answer to the Defendants’ request for the Deduction.

[122] What is the impact of those substantive rulings on the issues to be determined in this action?

[123] The Defendants do not concede that La Capitale has a right of subrogation, whether arising in equity or based in contract. Yet, the Defendants do not dispute that Mr. Cowley has received and continues to receive LTD benefits. Not only do the Defendants not dispute the payment of those benefits; the Defendants rely on the payment of those benefits in support of their request for the Deduction. Simply put, the Defendants cannot have it both ways.

[124] In accordance with Provost, and the cases cited therein, I find that the payment by La Capitale to Mr. Cowley of LTD benefits is sufficient to establish the existence of a right of subrogation. I therefore find that the Defendants are not entitled to the Deduction.

[125] The letter dated July 2019 from La Capitale addressed to McNally Gervan is not properly before the court as evidence. Regardless, the Defendants are well-aware of both the contents of that letter and the terms of the Policy. In the July 2019 letter, La Capitale speaks of the protection of its interest with respect to the six-figure sum paid to Mr. Cowley for LTD benefits.

[126] A witness from La Capitale has not been cross-examined on the contents of that letter, on the exercise of a right of subrogation, or as to what is meant by the protection of its interest. Without making any finding of fact, it appears that the Defendants would have be challenged to establish that La Capitale is not exercising a contract-based right of subrogation.

[127] In the end, the motion served one of the purposes intended. The issues to be determined during the balance of the proceeding are reduced in number and the parties are better-positioned to attempt to resolve the matter through settlement discussions and, if necessary, prepare for trial.

Order Made

[128] The Defendants requested that the Plaintiffs’ motion with respect to the issue of subrogation and double recovery be dismissed, with prejudice to the Plaintiffs. In support of that request the Defendants rely on the evidentiary deficiencies in the McEwen-Mills Affidavits. That request is denied.

[129] It would not be reasonable to penalize the Plaintiffs by dismissing their motion with prejudice when there are shortcomings in the evidence upon which the Defendants’ rely and no findings of fact are made in this ruling. It was, in any event, possible to make a substantive ruling with respect to the Deduction.

[130] The balance of the Plaintiffs’ motion is adjourned to be determined at a later stage of the proceeding.

[131] I therefore order as follows:

1. The affidavits of Hamish McEwen-Mills sworn on January 17, 2020 and January 31, 2020 are struck in their entirety.
2. The Defendants are not entitled to a deduction, for LTD benefits paid, from damages, if any, awarded to Mr. Cowley for economic losses.
3. The balance of the Plaintiffs’ motion, with respect to the evidentiary ruling, is adjourned, without prejudice, to be determined at a subsequent stage or stages in the proceeding.

Justice S. Corthorn * Madam Justice Sylvia Corthorn

* An electronic signature was used because of the suspension, as of the date of this endorsement, of regular court operations. Upon resumption of regular court operations, if not at an earlier time, a copy of this endorsement, with Justice Corthorn’s signature, shall be sent to counsel for the parties on the motion and sent for publication. The original signed endorsement will be added to the court file at that time. In the interim, a copy of the endorsement with the electronic signature is being added to the court file.

Released: March 24, 2020