CITATION: Duff-Foley v. TD General Insurance Company, 2023 ONSC 1394
COURT FILE NO.: 405/22
DATE: 20230301
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
BETWEEN:
THE ESTATE OF KAYLA DUFF-FOLEY
Applicant (Respondent)
– and –
TD GENERAL INSURANCE COMPANY
Respondent (Appellant)
– and –
THE ONTARIO TRIAL LAWYERS ASSOCIATION
Proposed Intervener
Tally Vanounou, for the Applicant (Respondent)
Eric Grossman and Matthew Owen, for the Respondent (Appellant)
Jay Ralston and Robert Ben for the Proposed Intervener
HEARD: February 24, 2023
Schabas J.
REASONS ON MOTION TO INTERVENE
Introduction
[1] The Ontario Trial Lawyers Association ("OTLA"), a non-profit professional association of more than 1,300 lawyers which advocates for the rights of those who have suffered injury and loss through the wrongdoing of others, seeks to intervene in this appeal. The proposed intervention is supported by the respondent on the appeal, The Estate of Kayla Duff-Foley, and opposed by the appellant, TD General Insurance Company (“TD”).
[2] The appeal concerns whether the parties had a valid and enforceable settlement agreement on September 1, 2020, at the conclusion of a mediation.
[3] One of the terms of the settlement was that the plaintiff, Kayla Duff-Foley, had to provide information for a structured settlement of accident benefits claims to the insurer, TD, and then execute a release and the statutorily mandated settlement disclosure notice to be prepared by TD. Unfortunately, the plaintiff died on September 11, 2020, prior to any communication regarding how the settlement was to be structured. Subsequently, on September 14, 2020, the plaintiff’s lawyer provided TD with structure information and informed TD that Duff-Foley had died.
[4] TD took the position that there was no valid and enforceable agreement. The plaintiff disagreed and brought an application to the License Appeal Tribunal to enforce the settlement. The LAT concluded that there was a binding settlement, and TD has appealed to this Court.
Does OTLA meet the test for intervention?
[5] On a motion to intervene, the court must consider whether the proposed intervener will likely make useful contributions to the resolution of the appeal without causing injustice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., 1990 6886 (ONCA). The proposed intervener must show that it will provide a different and distinct perspective on the case that will be of assistance to the court, and is not simply a repetition of the issues and argument made by the parties. Oakwell Engineering Limited v. Enernorth Industries Inc., 2006 60327 (ON CA) at paras. 10-11.
[6] The rigour of the test varies depending on the issues raised. In cases raising constitutional issues the test is lower given the broader implications of the outcome. In purely private disputes, the test is stricter because of the concern for prejudice to the parties in having to address additional submissions.
[7] This case, although a private dispute, raises issues that may have a broader impact on settlements of personal injury claims arising from motor vehicle accidents, and structured settlements in particular, which are governed by the Automobile Insurance Regulation, RRO, 1990, Reg 664, ss. 9.1 and 9.2. The case also implicates the application of s. 267.4 of the Insurance Act, RSO 1990, c. I.8, which, among other things, requires that tort damages awarded at trial be reduced by corresponding collateral benefits, including accident benefits, among other things.
[8] In my view, therefore, this case does not simply involve a private dispute between two parties to which the law must simply be applied. The appeal raises public law issues and policy concerns that may have a wider impact on personal injury cases generally.
[9] I am satisfied that OTLA will bring a different and distinct perspective that may assist the court, as it proposes to address the broader implications of the issues and the application of the Automobile Insurance Regulation and the Insurance Act which are not directly addressed by the respondent.
[10] OTLA is an organization with special knowledge and expertise in personal injury and motor vehicle litigation claims which in my view can make a useful contribution to this appeal. Although, as is often the case, OTLA’s position may be aligned with the respondent’s interests, OTLA will address issues more broadly and can provide a useful contribution to the court. I see little prejudice to TD if OTLA is permitted to intervene, and any prejudice in the form of additional expense or effort is necessitated by the issues raised by TD’s appeal. OTLA’s involvement will not, in any event, significantly expand the issues or the hearing of the appeal.
Conclusion
[11] OTLA shall be permitted to intervene as a friend of the court. OTLA’s request to file a factum no longer than 12 pages and to make submissions not exceeding 15 minutes at the hearing of the appeal is granted.
[12] Should TD wish to respond to OTLA’s factum, it may file a supplementary factum also not to exceed 15 pages.
[13] I was advised that the appeal is to be heard on April 18, 2023. OTLA shall file its factum by March 13, 2023. Any responding factum from TD shall be filed by March 31, 2023.
[14] OTLA seeks an order that no costs be sought against it on this motion or on the appeal, and submits that it will also not seek any costs of this motion or on the appeal. Costs are rarely awarded against interveners. I see no reason to depart from that general approach here and agree that no costs shall be ordered against OTLA arising from its intervention, and OTLA shall not be entitled to seek costs.
Paul B. Schabas J.
Released: March 1, 2023
CITATION: Duff-Foley v. TD General Insurance Company, 2023 ONSC 1394
COURT FILE NO.: 405/22
DATE: 20230301
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
THE ESTATE OF KAYLA DUFF-FOLEY
Applicant (Respondent)
– and –
TD GENERAL INSURANCE COMPANY
Respondent (Appellant)
– and –
THE ONTARIO TRIAL LAWYERS ASSOCIATION
Proposed Intervener
REASONS ON MOTION TO INTERVENE
Schabas J.
Released: March 1, 2023