Court File and Parties

COURT FILE NO.: CV-13-478108

DATE: 20140703

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ontario Society for the Prevention of Cruelty to Animals, Applicant

AND:

The Sovereign General Insurance Company, Respondent

BEFORE: Carole J. Brown J.

COUNSEL: Brian G. Shiller, for the Applicant

Ramon V. Andal, for the Respondent

HEARD: February 24, 2014

ENDORSEMENT

The Application

[1] This application arises from three lawsuits brought against the applicant, the Ontario Society for the Prevention of Cruelty to Animals ("OSPCA"), which the applicant seeks to have defended by the respondent, The Sovereign General Insurance Co. ("Sovereign") pursuant to a Commercial General Liability ("CGL") policy of insurance which it holds with Sovereign. The OSPCA seeks a declaration that the respondent owes it a duty to defend pursuant to the said policy of insurance.

[2] Sovereign maintains that coverage of the claims is excluded pursuant to the policy such that no duty to defend arises. It relies on the exclusion clauses contained in the policy of insurance, as well as the fortuity principle. Further, it argues that this application is a veiled attempt by the OSPCA to obtain an order for equitable contribution by Sovereign to the defence costs of its other insurer, Travelers Insurance Co. ("Travelers"), which are being paid in full. At the outset of the application, I was advised by counsel for OSPCA that Travelers was only covering one half of the costs of the defence under their policy.

[3] At the commencement of the hearing, I advised the parties that I would not entertain a claim for equitable contribution which was an issue as between the two insurers, Travelers and Sovereign, not between the insured and insurer. It is of note that Travelers was not a part of this application, nor was it present and represented at the hearing. As I further indicated at the outset, the OSPCA is entitled to seek coverage under both policies of insurance which it holds, and which cover different occurrences. I further indicated that, based on the materials in the submissions of counsel contained in their facta, I was of the view that this was an issue of whether a duty to defend arose or was precluded by the exclusion clauses and the fortuity principle. The application proceeded on that basis, and I will therefore not address the issue of equitable contribution further.

The Parties

[4] The OSPCA is authorized by statute to provide a variety of services in the province of Ontario in order to promote the welfare of animals. A significant part of the OSPCA's mandate is to investigate allegations of animal cruelty and, where appropriate, to lay charges pursuant to either the Criminal Code or the Ontario Society for the Prevention of Animals Act, R.S.O. 1990, c. O. 36.

[5] Sovereign is a Canadian owned and operated property and casualty insurer, with its headquarters in Calgary, Alberta. It has issued CGL policies of insurance to the OSPCA, policy number SOV79845215 applicable regarding occurrences from December 31, 2008 to December 31, 2009 (ie. the claims in St Amand and Sheridan), and policy number SOV79845215, from December 31, 2009 to December 31, 2010 (the Smith claim).

The Pleadings

[6] The background facts with respect to all three actions are taken from the Statements of Claim and the submissions of the parties. Accordingly, none of the alleged facts have been adjudicated by a court of competent jurisdiction in these actions.

The St. Amand Claim

[7] The Statement of Claim of Mr. St. Amand alleges the following. In April of 2008, agents Lapping and McAllister of the OSPCA seized several horses from Mr. St. Amand’s farm in the Greater Sudbury Area. Following a hearing before the Animal Care Review Board in early May, the OSPCA was ordered to return the horses subject to several conditions being fulfilled by Mr. St. Amand. Mr. St. Amand is alleged to have complied with the order; however, the horses were not returned by the OSPCA.

[8] In late June of 2008, the same OSPCA agents swore a multi-count information before a Justice of the Peace alleging against Mr. St. Amand various animal care offences under ss. 445 and 446 of the Criminal Code. They also sought a detention order for the seized horses. The claim alleges that the information sworn did not mention that the Animal Care Review Board had ordered the horses returned. The court then issued the detention order and criminal charges were laid. The OSPCA returned the horses, apparently on its own initiative, in October of 2008.

[9] In February 2010, Justice Villeneuve of the Ontario Court of Justice stayed the criminal proceedings brought against Mr. St. Amand on the grounds of abuse of process. This decision was not appealed.

[10] The Statement of Claim in St. Amand was issued on April 29, 2010 (Court File No. CV-11-426131), claiming damages for breach of Charter rights, damage to property, malicious prosecution, negligent investigation and negligence.

[11] By letter dated November 17, 2010, Sovereign denied coverage to the OSPCA on the basis that the claim for malicious prosecution, while covered under the Policy, is excluded because it allegedly arose “out of the willful violation of a penal statute or ordinance committed by, for, or with the consent of the Insured.”

The Sheridan Claim

[12] The Statement of Claim as regards Dr. Steven Sheridan alleges the following. Dr. Sheridan worked at the Toronto Humane Society (“THS”) as a veterinarian for approximately 30 years. For approximately 10 years prior to the material time, he was Chief Veterinarian of the River Street Shelter.

[13] In the spring of 2009, the OSPCA undertook an investigation of the THS. On November 25, 2009, Kevin Strooband, an inspector employed by the OSPCA, and Chris Avery, legal counsel to the OSPCA, swore an information before a Justice of the Peace in support of three search warrants, including one for the THS River Street Shelter.

[14] The warrant was executed the next day. Dr. Sheridan was arrested, detained for several hours and charged with various animal cruelty offences. As a condition of his release, he was prevented from coming within 500 metres of the THS shelter and unable to do his job. He was suspended without pay on February 2, 2010. On August 16, 2010, the Crown withdrew all of the charges against him because there was no reasonable prospect of conviction.

[15] A Statement of Claim naming the OSPCA et. al. as defendants was issued on November 4, 2011 (Court File No. CV-11-438861), claiming damages for negligent investigation, false arrest, false imprisonment, malicious prosecution, misfeasance in public office, slander and intentional interference with economic relations.

[16] By letter dated February 13, 2012, Sovereign conceded that the OSPCA and its employees had coverage under the Policy for false arrest, false imprisonment, malicious prosecution and slander. However, it denied coverage on the basis that the claims for malicious prosecution, false arrest and false imprisonment are excluded as a result of the alleged willful violation of the Criminal Code and the Charter by the defendants.

The Smith Claim

[17] The Statement of Claim of Trevor Smith alleges the following. Mr. Smith held the position of Lead Animal Cruelty Investigator at THS at the time of the OSPCA’s investigation. Mr. Smith was not arrested as part of the initial raid on the River Street Shelter on November 26, 2009, however his duties were suspended for roughly a month. He returned to work on December 29, 2009, but was arrested by OSPCA agents on January 7, 2010. The OSPCA alleged that he had continued to engage in animal cruelty investigations during his suspension and charged him with two counts of impersonating a peace officer and one count of perjury.

[18] As part of the conditions of his release he was barred from coming within 500 meters of the THS River Street Shelter. On February 2, 2010, he was suspended from his position pending the outcome of the criminal charges. On September 3, 2010, the Crown withdrew the charges having determined there was no reasonable prospect of conviction.

[19] A Statement of Claim was issued in this action on May 10, 2011, (Court File No. CV-11-426131), claiming damages for false arrest, false imprisonment, misfeasance in public office, malicious prosecution and defamation.

[20] The OSPCA reported the claim in a timely manner and requested that Sovereign provide a defence. By letter dated December 19, 2011, Sovereign denied coverage to the OSPCA and its employees, officers and directors on the basis that the claims for malicious prosecution, false arrest and false imprisonment, while covered under the Policy, are excluded “because the defendants are alleged to have knowingly inflicted personal injury and knowingly violated the plaintiff’s rights”.

Notice of the Actions and Sovereign’s Refusal to Defend

[21] At the material times, the OSPCA held two policies of insurance: a D & O policy with Travelers and the CGL policy with Sovereign.

[22] The OSPCA promptly notified both Sovereign and Travelers, as required, with respect to each of the subject legal proceedings that had been initiated against it. In addition to the three actions which are the subject of this application, other actions were brought arising from the investigation and arrests. Travelers has responded and is currently defending all of the actions. Sovereign has responded to several of the claims, but asserts that it has no obligation to defend the claims brought by Messrs. St. Amand, Sheridan and Smith. Sovereign takes the position that it has no duty to defend these actions as the pleadings in the three actions engage the exclusionary provisions of the policy in effect at the time of the occurrences.

The Sovereign Policy of Insurance

[23] Prior to December 31, 2009 – the period when the acts or omissions in the St. Amand and Sheridan actions are alleged to have occurred – Sovereign insured the OSPCA under Policy No. 7984512. The CGL section of that policy used the wording of Form # S70000.8 (“Form 0.8”). The policy was renewed for another period effective from December 31, 2009, to December 31, 2010, the period of time that corresponds to the alleged occurrences in the Smith action. During the renewal period, the CGL wording was revised using Form # S70000.9 (“Form 0.9”), which replaced certain exclusions and definitions in the previous form.

[24] The Insuring Agreement of the CGL in both versions provides insurance coverage for Bodily Injury and Property Damage Liability under Coverage A, and Personal and Advertising Injury under Coverage B. “Bodily Injury” means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. “Property Damage” means physical injury to tangible property, including all resulting loss of use of that property; or loss of use of tangible property that is not physically injured. The insurance under Coverage A applies only if the bodily injury or property damage is caused by an “occurrence”, which is defined in the Sovereign Policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions”.

[25] In Form 0.8 – applicable to the St. Amand and Sheridan claims – “Personal Injury” is defined as “injury, other than ‘bodily injury’, arising out of one or more of the following offences”:

a. False arrest, detention or imprisonment;

b. Malicious prosecution;

c. Wrongful entry into, or eviction of a person from, a room, dwelling or premises that the person occupies;

d. Oral or written publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services; or

e. Oral or written publication of material that violates a person’s right of privacy.

[26] Coverage A of the Policy covers “Bodily Injury and Property Damage”. Only the St. Amand claim alleges property damage. The relevant provisions for the purposes of this Application are:

2. Exclusions

This insurance does not apply to:

(h) “Property Damage” to:

(4) Personal property in the Insured’s care, custody or control

[27] Coverage B of the Policy relates to Personal Injury Liability. The relevant provisions for the purposes of this Application are:

1. Insuring Agreement

(b)This insurance applies to “Personal Injury” only if caused by an offence:

(2) Arising out of the conduct of the Named Insured’s business, excluding advertising, publishing, broadcasting or telecasting done by or for the Named Insured.

2. Exclusions

This insurance does not apply to “Personal Injury”:

(1) Arising out of oral or written publication of material, if done by or at the direction of the Insured with knowledge of its falsity.

(3) Arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the Insured.

[28] In Form 0.9 – applicable to the Smith claim – “personal and advertising injury” is defined as “injury, including consequential ‘bodily injury’, arising out of one or more of the following offences:

a. False arrest, detention or imprisonment;

b. Malicious prosecution;

c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor;

d. Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products, or services;

e. Oral or written publication, in any manner, of material that violates a person's right of privacy;…

[29] Section 2 of Coverage B again sets out the applicable exclusions.

2. Exclusions

a. Knowing Violation of Rights of Another

“Personal and advertising injury caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict “personal and advertising injury”.

b. Material Published With Knowledge of Falsity

“Personal and advertising injury” arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.

The Issues

[30] The issue to be determined by this Court is whether the exclusion clauses contained in the policy of insurance apply as regards the three subject claims to exclude coverage, such that no duty to defend arises.

[31] The parties are in agreement that the relevant policies of insurance cover the torts alleged in the Statement of Claim, namely malicious prosecution, false arrest, imprisonment and slander. However, the respondent denies that the duty to defend arises in these three claims on the basis that the exclusionary clauses set forth at paragraphs 26, 27 and 29, above, apply and also on the basis of the fortuity principle, which is addressed below.

The Positions of the Parties

OSPCA

[32] It is the position of the OSPCA that Sovereign, as an insurer, contracted to provide comprehensive coverage to it as a quasi-policing agency that has powers of arrest and detention. It provided coverage for those types of claims policing agencies frequently face when they are sued, including malicious prosecution, false detention and false arrest. However, in this case, Sovereign has denied coverage based on specific exemptions excluding certain willful or intentional conduct.

[33] An insurer is required to defend unless it is clear from the pleadings and/or the policy that no coverage is afforded to the insured. Even where some of the claims are covered and others excluded under the policy, the insurer is required to defend the whole action. The duty to defend will arise even if the claims only potentially fall within the policy coverage: Nichols v. American Home Assurance Co., 1990 144 (SCC), [1990] 1 S.C.R. 801, at para. 16.

[34] The OSPCA asserts that Sovereign’s duty to defend is triggered by the express wording of the policy. Although they are not identical, the three contested claims variously allege malicious prosecution, false arrest and false imprisonment, and defamation (Smith) or slander (Sheridan). It argues that a Scalera analysis of the claims alleged leads to the conclusion that they are distinct and not derivative of one another. The policy expressly provides coverage for these kinds of claims and Sovereign concedes as much. The question is whether the exclusionary language in the policy prevents the insured from the benefit of the policy for which it paid a premium.

[35] Exclusionary language in an insurance policy should be construed narrowly and, where ambiguity exists, must be resolved in favour of the insured: Hanis v. Teevan, 2003 48367 (ON SC), [2003] 67 O.R. (3d) 539, [2003] O.J. No. 4167, at para 86. It is also important to look at the context surrounding the policy and what the purpose of the coverage is when determining the applicability of any exclusionary language.

[36] As regards Form 0.9, applicable in the Smith action, coverage is excluded where the personal or advertising injury is “caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict personal and advertising injury.”

[37] The OSPCA submits that on its face, there appears to be an obvious conflict in the language of the Policy, which expressly contemplates coverage for claims based on intentional tortious conduct, while simultaneously excluding coverage for intentional conduct. How can these two clauses be reconciled where, in the case of malicious prosecution, both intent and malice are constituent elements of the tort?

[38] OSPCA’s position is that the only way to reconcile the apparent conflict in the policy, and to construe the language in terms that are as favourable to the insured as possible, is for the court to find that the exclusionary language is meant to exclude intentional harmful acts other than those expressly covered under the policy. To interpret the clause otherwise would mean that the insured paid a premium for expressed coverage under the Policy that in fact did not exist.

Sovereign

The Fortuity Principle in Insurance

[39] Sovereign submits that it is a well-established principle of insurance law that liability policies generally only cover losses from fortuitous events (accidental or unforeseen occurrences): Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, 2000 S.C.C. 24 at paras. 68 and 69. The allegations against the OSPCA in the three contested claims allege that agents of the OSPCA willfully violated the law, intentionally violated the rights of the plaintiffs and/or intentionally caused them harm. Sovereign’s position is that not only are these allegations expressly excluded by the Sovereign Policy, they are also uninsurable in law.

[40] Sovereign relies on the Ontario Court of Appeal decision of Liberty Mutual Insurance Co. v. Hollinger Inc., 2004 10995 (ONCA), which applied the fortuity principle in the context of intentional torts and determined that there was no duty on the insurer to defend a claim for intentional discrimination. The Court recognized that for the purposes of insurance law, a distinction should be drawn between intentional conduct that results in unintended harm, and conduct where the kind of harm or loss was intended from the standpoint of the insured. The fortuity principle, as a matter of law, prevents an insured from recovering where the actual harm alleged was intended by the insurer.

[41] In Liberty Mutual v Hollinger, supra, the court determined that Liberty had no duty to defend because the allegations against Hollinger were that it intended to discriminate against the plaintiff.

The St. Amand Claim

[42] Sovereign submits that Coverage A of the “0.8” policy does not cover Mr. St. Amand’s claim for alleged property damage to his horses. The claim alleges that the OSPCA intended to deprive the plaintiff of his possession of the horses that were seized. The seizure did not constitute an “occurrence” or “accident” within the meaning of the Coverage A Insuring Agreement, and therefore the claim for property damage falls outside of coverage.

[43] Exclusion (a) of that policy states: “This insurance does not apply to: (a) ‘Bodily Injury’ or ‘property damage’ expected or intended from the standpoint of the Insured. The exclusion does not apply to ‘bodily injury’ resulting from the use of reasonable force to protect persons or property.”

[44] Sovereign submits that, based on the decision of Justice Villeneuve, the OSPCA used the criminal proceedings against St. Amand to deprive him of his right to the return of his horses as ordered by the ACRB. The property damage to the horses was therefore intended or expected by OSPCA.

[45] Exclusion 2(h)(4) of the Sovereign Policy states:

This insurance does not apply to: (h) “Property Damage” to:

(4) Personal Property in the Insured’s care, custody or control

[46] Paragraph 33 of the Statement of Claim alleges that the horses “received poor and improper care while in the custody of the OSPCA and under the supervision of the OSPCA veterinarian, P. J. Rocheleau”. The horses were personal property under the custody and control of the OSPCA and therefore the exclusion applies so as to remove coverage for the property damage claims.

[47] Mr. St. Amand also alleges malicious prosecution against the OSPCA, which is a form of personal injury under the Policy. Sovereign maintains that Exclusion 2(3) under Coverage B of the 0.8 Policy, set forth at paragraph 28, supra, applies. Sovereign argues that the claim for malicious prosecution in this case arose out of the wilful violation by the OSPCA of the OSPCA Act, which is a penal statute, and therefore, the malicious prosecution claim is excluded.

[48] Sovereign submits that the Statement of Claim alleges violations of St. Amand’s Charter rights on the basis that OSPCA launched and pursued a criminal prosecution involving an information sworn in bad faith and for an improper purpose. By ignoring and failing to comply with the ACRB order, OSPCA was in violation of s. 18.1(e) of the OSPCA Act, which states: “Every person is guilty of an offence who,… (e) contravenes or fails to comply with an order of the Board.”

The Sheridan Claim

[49] Sovereign submits that only the claims for malicious prosecution, false arrest/imprisonment, and slander constitute “personal injury” in the Sovereign Policy “0.8” form. Negligent investigation, misfeasance, intentional interference with economic relations, and breach of Charter rights do not come within the definition of “personal injury” and are not covered on that basis. Neither are punitive damages, because they are not “compensatory damages.”

[50] Under section 1(b)(2) of Coverage B of the Insuring Agreement, the personal injury must be caused by an offence committed during the policy period and arising out of the conduct of the named insured’s business, “excluding advertising, publishing, broadcasting or telecasting done by or for the Named Insured”. Paragraph 26 of the Statement of Claim alleges that the contents of the search warrant, which included charges against Dr. Sheridan, were made available to the public on the OSPCA website. The alleged defamation of Dr. Sheridan arose out of publishing done by or for OSPCA through its internet media releases, and therefore falls outside of the Coverage B Insuring Agreement.

[51] Furthermore, Sovereign asserts that OSPCA had contacted the media to ensure the THS raid received significant press coverage. The substance of the allegations in the Sheridan claim is that the telecasting and publishing of the arrest were done at the request, or with the active involvement, of the OSPCA. The Insuring Agreement does not cover the alleged slander that was published or broadcasted by or for the OSPCA.

[52] Sovereign maintains that Exclusion 2(3) of Coverage B Form 0.8, set forth at paragraph 27, applies. It states that the warrant obtained by the OSPCA under s. 487 of the Code permitted it to seize tangible objects, but did not permit it to conduct veterinary checks of the animals. Warrants obtained under s. 487.01 or s. 12 of the OSPCA Act both authorize veterinary checks, but the OSPCA chose not to obtain a warrant under those sections. Its position is that this amounted to a violation of a penal statute.

The Smith Claim

[53] As Smith was arrested after December 31, 2009, the applicable insurance policy for his claim uses the wording in Form 0.9. Section 1(a) of Coverage B of the Insuring Agreement states:

We will pay those sums that the insured becomes legally obligated to pay as ‘compensatory damages’ because of ‘personal and advertising injury’ to which this insurance applies.

“Compensatory damages” is defined in Form 0.9 as “damages due or awarded in payment for actual injury or economic loss.” “Compensatory damages” does not include punitive or exemplary damages, which are claimed in paragraph 1(d) of the Statement of Claim. On that basis, Sovereign maintains that there is no duty to defend these aspects of the claim.

[54] The policy covers “personal and advertising injury” including false arrest, detention or imprisonment, malicious prosecution and slander. However, it does not cover misfeasance in public office or breach of the Charter rights alleged in paragraphs 1(a) and 1(b) of the Statement of Claim.

[55] It is Sovereign's position that Exclusions 2 (a) and (b) of Form 0.9, set forth at paragraph 29, applies.

[56] Mr. Smith alleges that the defendants’ actions in the manner he was arrested “were calculated to cause the maximum possible embarrassment to Tre Smith.” He claims that in laying the criminal charges, they were motivated by personal animus against him and his arrest was a violation of his ss. 7 and 9 Charter rights. On this basis, Sovereign argues that Exclusion 2 (a) removes the coverage for, and any duty to defend malicious prosecution, false arrest and imprisonment, as the acts were allegedly caused by the OSPCA knowing that they would violate Mr. Smith’s rights and inflict personal harm.

[57] Mr. Smith’s Statement of Claim alleges that while elements of the Defendants’ statements to the media were factually true, they were designed to carry false innuendoes calculated to disparage him in his trade or calling. This allegation amounts to a pleading of knowledge on the part of OSPCA that the innuendoes were false, which triggers exclusionary clause 2(b), set forth at paragraph 29.

The Law and Analysis

[58] The Canadian jurisprudence clearly sets forth the legal principles governing the insurer’s duty to defend. The pleadings govern the duty to defend, and not the insurer’s view of the validity or nature of the claim or the possible outcome of the litigation. If the pleadings allege facts which, if true, would require the insurer to indemnify the insured for the claim, then the insurer is obliged to provide a defence. Where there is doubt as to whether the pleadings bring the incident within coverage of the policy, such doubt must be resolved in favour of the insured.

[59] Where it is clear from the pleadings that a suit falls outside policy coverage by reason of an exclusion clause, the duty to defend does not arise. It is not necessary to prove that the obligation to indemnify will in fact arise in order to trigger the duty to defend. The mere possibility that a claim falling within the policy may succeed will suffice. In this sense, the insurer’s duty to defend is broader than the duty to indemnify: Nichols v. American Home Assurance Co., 1990 144 (SCC), [1990] 1 S.C.R. 801.

[60] In Nichols, McLachlin J. stated:

I conclude that considerations related to insurance law and practice, as well as the authorities, overwhelmingly support the view that the duty to defend should, unless the contract of insurance indicates otherwise, be confined to the defence of claims which may be argued to fall under the policy. That said, the widest latitude should be given to the allegations in the pleadings in determining whether they raise a claim within the policy.

[61] Any doubt as to whether the pleadings bring the incident within coverage of the policy must be resolved in favour of the insured. As clearly stated by Iacobucci J.:

Where pleadings are not framed with sufficient precision to determine whether the claims are covered by a policy, the insurer’s obligation to defend will be triggered where, on a reasonable reading of the pleadings, a claim within coverage can be inferred. This principle is congruent with the broader tenets underlying the construction of insurance contracts, namely, the contra proferentum rule, and the principle that coverage provisions should be construed broadly, while exclusion clauses should receive a narrow interpretation. In Opron Maritimes, supra, the New Brunswick Court of Appeal conveyed these principles by stating at para. 15 that, “[a]ny doubt as to whether the pleadings bring the incident within the coverage of the policy ought to be resolved in favour of the insured”.

Moneco Ltd. et al. v. Commonwealth Insurance Co. (2001), 204 D.L.R. (4th) para. 31 (S.C.C.)

[62] The starting point to determine whether a duty to defend arises under the policy is to analyze the pleadings following the three-part test outlined by the Supreme Court of Canada in Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551 at p. 581 [Scalera]:

A three-step process must be applied to determine whether a claim could trigger indemnity. First, a court should determine which of the plaintiff's legal allegations are properly pleaded. In doing so, courts are not bound by the legal labels chosen by the plaintiff. A plaintiff cannot change an intentional tort into a negligent one simply by choice of words, or vice versa. Therefore, when ascertaining the scope of the duty to defend, a court must look beyond the choice of labels, and examine the substance of the allegations contained in the pleadings. This does not involve deciding whether the claims have any merit; all a court must do is decide, based on the pleadings, the true nature of the claims.

At the second stage, the court should determine if any claims are entirely derivative in nature. The duty to defend will not be triggered simply because a claim can be cast in terms of both negligence and intentional tort. A claim for negligence will not be derivative if the underlying elements of the negligence and of the intentional tort are sufficiently disparate to render the two claims unrelated. However, if both the negligence and intentional tort claims arise from the same actions and cause the same harm, the negligence claim is derivative, and it will be subsumed into the intentional tort for the purposes of the exclusion clause analysis. If neither claim is derivative, the claim of negligence will survive and the duty to defend will apply. Finally, at the third stage, the court must decide whether any of the properly pleaded, non-derivative claims could potentially trigger the insurer's duty to defend.

[63] I note that among the three claims, some of the pleadings are not clearly pleaded. However, each of the plaintiffs seek damages for harm arising from malicious prosecution, false arrest and imprisonment. As well, some of the claims allege breaches of the Charter. The applicant takes the position that the claim for negligent investigation should be subsumed into the malicious prosecution claim, but that the claims for false arrest, false imprisonment and slander are separate and distinct as their requisite elements are different and therefore cannot be determined to be derivative one of the other.

[64] In order to determine whether Sovereign has a duty to defend any of the three contested actions, it will be necessary to analyze the pleadings in each case in order to determine the true nature of the claims. As mentioned above, there is no dispute between the parties that the policy provides coverage for the kinds of claims being pleaded in each case. The real question requiring a determination on this Application is whether the exclusionary clauses have been triggered so as to remove the duty to defend.

St. Amand Claim

[65] In his Statement of Claim, Mr. Amand seeks damages for breach of Charter rights, malicious prosecution, negligent investigation and negligence. However, as Scalera makes clear, the court must look beyond the choice of labels and assess the substance of the pleadings themselves.

[66] At paragraph 12 of the Statement of Claim, the plaintiff alleges that the investigative activities alleged to support the seizure of his horses, either by OSPCA employees or Dr. P. J. Rocheleau, were superficial, biased, inadequate and inaccurate. These pleadings support the claim for negligent investigation.

[67] In paragraphs 15 through 24, the plaintiff describes the sequence of events from the Order of the ACRB and leading up to the laying of criminal charges against him. He refers to the judgment of Justice Villeneuve, who stayed all the charges on the ground of abuse of process. These pleadings support the claim for malicious prosecution, the requisite elements of which are 1) the proceedings must have been initiated by the defendant; 2) the charge was determined in favour of the plaintiff; 3) the absence of reasonable and probable cause, and 4) malice, or a primary purpose other than that of carrying the law into effect: Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170 at p. 193. They further support the claim for breach of s.7 Charter rights, which does not, however, require the same requisite elements and is therefore not derivative.

[68] As regards the breach of section 7 Charter rights, the plaintiff, at paragraph 1(a) of the Statement of Claim, claims damages for the abuse of process to which he was subjected by virtue of the OSPCA allegedly launching and pursuing a criminal prosecution for an improper purpose and with an information sworn in bad faith.

[69] In paragraphs 28 through 32, the plaintiff alleges that the OSPCA was negligent in the hiring, training and supervision of its agents. This supports the claim for negligence simpliciter as against the OSPCA.

[70] The facts supporting the claims for negligence and negligent investigation are different. I find that the claims, properly construed following Scalera, sound in malicious prosecution, negligence and negligent investigation. The Sovereign policy expressly provides coverage for these claims. If no exclusions apply, then the duty to defend is triggered.

Form 0.8 Exclusions

[71] Coverage A of the Policy covers “Bodily Injury and Property Damage”. Mr. St. Amand alleges that the OSPCA caused damage to his horses. Sovereign relies on Exclusions 2(a) and 2(h)(4) to deny coverage for this claim, which read:

2. Exclusions

This insurance does not apply to:

(a) “Bodily Injury” or “Property Damage” expected or intended from the standpoint of the insured….

(h) “Property Damage” to:

(4) Personal property in the Insured’s care, custody or control

[72] In the Statement of Claim of St. Amand, the harm alleged and for which damages are sought includes damage to the horses, which the plaintiff alleges were returned emaciated; loss of the opportunity to breed the horses during the foaling season, and compromise of the early development of the two foals, ruining them for racing or breeding.

[73] The respondent argues that the harm alleged is excluded pursuant to Exclusions 2 (a) and (h). I am not of the view that the property damage for which damages are claimed can be seen as expected or intended harm from the standpoint of the OSPCA.

[74] In my opinion, Exclusion 2(a) does not apply on the facts pled. Based on the pleadings, it was not the seizure or retention per se that caused any alleged damage to the horses, but rather their treatment while in the care of the OSPCA. There is no allegation that the OSPCA officers intended to harm the horses. On that basis, I do not accept the respondent’s assertion that because the seizure of the animals was deliberate, so too was the alleged harm caused.

[75] Sovereign also maintains that Exclusion 2(h)(4) is applicable to the claim for Property Damage as regards the horses. It submits that the alleged injury to Mr. Amand’s horses occurred while they were in the custody of the insured, which triggers the exclusionary clause and negates any duty to defend this aspect of the claim.

[76] Mr. St. Amand alleges that the alleged poor or improper care occurred while the horses were in the OSPCA's custody, that this resulted in the compromised development of the foals, including the one born in captivity, as racers or breeders and also denied the plaintiff the opportunity to breed the mares during the 2008 foaling season.

[77] Based on the foregoing, I find that Exclusion 2(h)(4) applies and precludes the duty to defend the allegations of property damage.

[78] With respect to the claim for malicious prosecution, Sovereign relies on Exclusion 2(3) under Coverage B, which states:

2. Exclusions

This insurance does not apply to “Personal Injury”:

(3) Arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the Insured.

[79] Again, Sovereign’s position is that OSPCA agents deliberately violated an order of the ACRB, which is an offence under s. 18.1(1)(e) of the OSPCA Act. The respondent maintains that “by virtue of the penalties imposed by s. 18.1, [the OSPCA Act] is a “’penal statute’”, although no authority for this proposition was provided.

[80] In Canada Post Corp. v. Key Mail Canada Inc. (2005), 2005 30837 (ON CA), 77 O.R. (3d) 294, Blair J.A. stated at para. 28: “The fact that a statute may contain a penal sanction is not alone sufficient to constitute the statute itself a penal statute.” Further, pursuant to s. 64(1) of the Legislation Act, S.O. 2006, C. 21 Sch. F, all legislation is considered, at least presumptively, to be remedial, as follows: “An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”

[81] In order to determine whether legislation is remedial or penal in nature, the focus must be on the object of the legislation as a whole, not on specific provisions that serve to uphold or facilitate that object. This approach is consistent with the current approach to statutory interpretation generally, which mandates a holistic or comprehensive reading of the legislation: Rizzo & Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27 Even though an act may contain specific prohibitions and penalties, if the overarching object of the act is to promote some social good, it will be considered remedial. As Professor Sullivan indicates, “acts designed to correct injustice or to protect vulnerable groups from unfair treatment or hardship are ‘remedial’ in an obvious sense.” Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008) p. 468. See also Liberty Mutual v Hollinger, supra, at para 13.

[82] In my view, the OSPCA Act, properly construed, is not a penal statute. Section 3 of the Act clearly states its “Object”: “The object of the Society is to facilitate and provide for the prevention of cruelty to animals and their protection and relief therefrom.” The Act also mandates certain minimum standards for animal care under s. 11.1(1): “Every person who owns or has custody or care of an animal shall comply with the prescribed standards of care with respect to every animal that the person owns or has custody or care of.”

[83] Much of the rest of the Act can be seen as providing the OSPCA with the powers to achieve the object of the Act and ensure compliance with the standard of care. Section 8 provides that the OSPCA can hold property, construct buildings and “do all such other matters and things as it considers advisable for carrying out its object” [s. 8(e)]. The Act further provides to agents and officers of the OSPCA certain police powers, but with the caveat that they are to be exercised “for the purposes of the enforcement of this act or any other law in force in Ontario pertaining to the welfare of or the prevention of cruelty to animals” [s.11(1) Emphasis added].

[84] Undoubtedly, the Act also creates prohibitions and makes contravention of particular prohibitions an offence that carries a penalty. However, as mentioned, these sections must be interpreted in light of the object of the legislation as a whole which, in my view, is ultimately to prevent animal cruelty, not to punish behaviour that is morally blameworthy.

[85] This analysis is consistent with that of Dickson C.J.C., who found that the Canadian Human Rights Act was remedial, not penal legislation in Action Travail des Femmes v. Canadian National Railway Co. et al. (1987), 1987 109 (SCC), 40 D.L.R. (4th) 193 at 206-207:

The purposes of the Act would appear to be patently obvious, in light of the powerful language of s. 2. In order to promote the goal of equal opportunity for each individual to achieve "the life that he or she is able and wishes to have", the Act seeks to prevent all "discriminatory practices" based, inter alia, on sex. It is the practice itself which is sought to be precluded. The purpose of the Act is not to punish wrongdoing but to prevent discrimination. [Emphasis added]

[86] Having determined that the OSPCA Act is not a penal statute, I find that Exclusion 2(3) under Coverage B does not apply so as to remove coverage in the St. Amand action.

The Sheridan Claim

[87] In his Statement of Claim, Dr. Sheridan claims general damages for negligent investigation, false arrest, false imprisonment, malicious prosecution, misfeasance in a public office, slander, intentional interference with economic relations, and breach of Charter rights. He also claims special, aggravated and punitive damages.

[88] There is express coverage for claims of false arrest, slander and malicious prosecution under Coverage B in Form 0.8. In his Statement of Claim, Dr. Sheridan pleads facts that support all three allegations and the three torts are independent of one another, and not derivative. Under normal circumstances, this would automatically trigger the duty to defend. The question, again, is whether, based on the pleadings, an exclusionary clause applies.

[89] With respect to the slander, false arrest and malicious prosecution claims, Sovereign relies on section 1(b)(2) of the Insuring Agreement and section 2(3) of the Exclusions under Coverage B, which state:

1. Insuring Agreement

(b) This insurance applies to “Personal Injury” only if caused by an offence:

(2) Arising out of the conduct of the Named Insured’s business, excluding advertising, publishing, broadcasting or telecasting done by or for the Named Insured.

2. Exclusions

This insurance does not apply to “Personal Injury”:

(3) Arising out of the willful violation of a penal statute or ordinance committed by or with the consent of the Insured.

[90] Sovereign’s position is that since the Sheridan claim alleges that the defamation was a result of the OSPCA making the contents of the search warrant available on its website, which included a list of allegations against Dr. Sheridan – the section 1(b)(2) exclusion applies. I do not agree.

[91] Although, in the ‘Overview’ section of his Statement of Claim, Dr. Sheridan mentions that information about him was posted on the OSPCA website, his claim for slander is based on the allegations of fact contained in paragraph 57. Dr. Sheridan has based his claim on words spoken by OSPCA officials about him. He does not rely on the material published on the website and indeed, he has not framed his claim in libel. Since ‘words spoken’ do not amount to advertising, publishing, broadcasting or telecasting, the exclusion does not apply here.

[92] With respect to the claim for malicious prosecution and false arrest, Sovereign relies on Exclusion 2(3) above and asserts that there is no coverage because the injury arose out of “the willful violation of the Criminal Code” on the basis that the OSPCA allegedly exceeded the scope of its search warrants. I note in passing that, of the paragraphs referred to by Dr. Sheridan in support of this proposition, namely 31, 52, 55 and 59, none of them correspond to Dr. Sheridan’s allegations regarding his false arrest or malicious prosecution, which can be found in paragraphs 39-43 and 44-48 respectively. The paragraphs referred to instead come from sections addressing the negligent investigation, misfeasance in a public office, and intentional interference with economic relations claims.

[93] Although the Criminal Code provides the statutory authority for obtaining search warrants, it is not an offence under the Criminal Code to exceed the scope of a search warrant, although it may be contrary to the Charter to do so. That is not the issue here. It is one thing to say that a search is unlawful in the sense that it is not authorized by law, and another to say that an unlawful search amounts to a ‘willful violation of a penal statute’. To do so, in my view, would stretch the plain meaning of the words in the policy beyond their natural scope.

[94] I find that the exclusions relied on by Sovereign do not apply in this case.

The Smith Claim

[95] As mentioned above, the Smith claim arose out of events that occurred after December 31, 2009, so the applicable policy wording is from Form 0.9. Mr. Smith seeks damages for false arrest, false imprisonment, misfeasance in public office, malicious prosecution and defamation. The parties agree that there is coverage under the policy for false arrest/imprisonment, defamation and malicious prosecution.

[96] At paragraph 29 of his Statement of Claim, Smith alleges that the defendants’ actions in the manner he was arrested “were calculated to cause the maximum possible embarrassment to Tre Smith”. At paragraph 48, he alleges that the “defendants’ motive in laying these charges was not their desire to bring a wrongdoer to justice, but their personal animus and spite towards Tre Smith”. Paragraph 49 alleges that “the Defendants acted intentionally and in full knowledge of the fact that their actions would cause harm to Tre Smith. In fact, their actions were calculated to have this effect.” Paragraph 68 states that the “arrest by OSPCA agents constituted a breach of his section 9 Charter rights to be protected from arbitrary arrest or detention. The OSPCA has no lawful authority to carry out his arrest”. Paragraph 69 alleges that the actions of the defendants “constituted a breach of the Plaintiff’s right to liberty and security of the person under section 7 of the Charter”.

[97] Sovereign maintains that the pleading expressly alleges that OSPCA knowingly committed a violation of Smith’s rights with the intention to cause him harm, triggering Exclusion 2(a) of Coverage B in Form 0.9, which states:

2. Exclusions

a. Knowing Violation of Rights of Another

“Personal and advertising injury caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict “personal and advertising injury”.

[98] The allegations outlined above appear to precisely plead the constituent elements of the tort of malicious prosecution and nothing more. The parties agree that Mr. Smith was charged and the charges were resolved in his favour; this satisfies the first two elements. The allegation that OSPCA had no lawful authority to arrest him is, in essence, to state that they did not have reasonable and probable grounds to do so, thus satisfying the third criterion. Finally, the allegation that the charges were brought in order to embarrass Mr. Smith, or because of a personal animus OSPCA agents had against him, satisfies the fourth element of malice or improper purpose.

[99] Courts have developed a number of general interpretive principles that strive to protect consumers from the imbalance of power between them and the insurer, while trying to ensure that the insured does not obtain more coverage than it is prepared to pay for.The words of the policy should be given their ordinary meaning and where ambiguity remains, the words should be construed against the insurer. Courts should also strive to give effect to the reasonable expectations of the parties in the context of the particular commercial atmosphere in which the insurance was contracted: Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 10 (SCC), [1980] 1 S.C.R. 888, per Estey J., at 901:

It is trite to observe that an interpretation of an ambiguous contractual provision which would render the endeavour on the part of the insured to obtain insurance protection nugatory, should be avoided. Said another way, the courts should be loath to support a construction which would either enable the insurer to pocket the premium without risk or the insured to achieve a recovery which would neither be sensibly sought nor anticipated at the time of the contract.

[100] In my view, in the face of express coverage for malicious prosecution, Exlusion 2(a) cannot be literally applied so as to remove coverage for malicious prosecution. Given the commercial context in which the contract was formed – the OSPCA being an investigative body which can lay criminal charges for animal cruelty offences without supervision from Crown prosecutors – I find that strict application of the exclusion would serve to defeat the main object of the contract. I find the words of Lacourciere J.A. in Weston Ornamental Iron Works Ltd. v. Continental Insurance Co., [1981] O.J. No. 78 (C.A.) at para. 16 germane on this issue:

The exclusion clause should not be interpreted in a way which is repugnant to or inconsistent with the main purpose of the insurance coverage but so as to give effect to it. Thus, even if the exemption clause were found to be clear and unambiguous it should not be enforced by the courts when the result would be to defeat the main object of the contract or virtually nullify the coverage sought for protection from anticipated risks. The doctrine that in construing a contract, one must look to the entire document and reject words or indeed provisions which are inconsistent with the main purpose of the contract, was enunciated by Lord Halsbury in the House of Lords as early as 1893 in Glynn v. Margetson & Co., [1893] A.C. 351. It was applied in Sze Hai Tong Bank Ltd. v. Rambler Cycle Co. Ltd., [1959] A.C. 576 and recently in Ontario in Tiko Electric Company Limited v. The Canadian Surety Company Limited, supra. The Supreme Court of Canada in Consolidated-Bathurst Export Limited v. Mutual Boiler and Machinery Insurance Company, supra, gave the doctrine its approval.

[101] I have also considered Hanis v. Teevan [2003], supra, at para. 86, in which Power J observed as follows:

Notwithstanding that commercial liability insurance or comprehensive general liability insurance policies have traditionally been presumed to cover only non-intentional conduct, this general proposition must yield where the claims are clearly covered by the policy in question even if the Insured’s conduct involves intentional tortious conduct.

[102] Based on the foregoing, I find that coverage for malicious prosecution and false arrest/imprisonment are not excluded by operation of Exclusion 2(a).

[103] With respect to Mr. Smith’s claim for defamation, at paragraph 58 of his Statement of Claim, he alleges that “while elements of the Defendants’ statements to the media were factually true, they were designed to carry, and did carry, the following false innuendoes calculated to disparage Tre Smith in his trade or calling”.

[104] Sovereign relies on Exclusion 2(b) of Coverage B, which states:

2. Exclusions

(b) Material Published with Knowing Falsity

“Personal and advertising injury” arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.

[105] I acknowledge that in an action for defamation, innuendo will be a crucial factor where the words spoken or published are true on their face, but carry some further meaning because of extrinsic facts known to a particular recipient of the communication. However, I cannot accede to the assertion that so-called ‘false innuendoes’ engage the exclusionary language in s. 2(b). As a simple matter of fact, innuendo is not orally communicated, written or published. It is rather a deduction, or inference, drawn from the combination of the published material with facts known but extrinsic to the published material. I do not accept that the product of that process of reasoning amounts to ‘publication of material with knowledge of its falsity’.

[106] I conclude that the Exclusion 2(b) does not apply to prevent coverage for defamation.

The Fortuity Principle in Insurance Law

[107] Counsel for Sovereign submits that, pursuant to the fortuity principle in insurance law the insured should be prevented from recovering in these three cases. Counsel directed the court to this quotation from para. 68 of Scalera:

It is important to keep in mind the underlying economic rationale for insurance. C. Brown and J. Menezes, Insurance Law in Canada (2nd ed. 1991), state this point well at pp. 125-26:

Insurance is a mechanism for transferring fortuitous contingent risks. Losses that are neither fortuitous nor contingent cannot economically be transferred because the premium would have to be greater than the value of the subject matter in order to provide for marketing and adjusting costs and a profit for the insurer. It follows, therefore, that even where the literal working of a policy might appear to cover certain losses, it does not, in fact, do so if (1) the loss is from the inherent nature of the subject matter being insured, or (2) it results from the intentional actions of the insured.

In other words, insurance usually makes economic sense only where the losses covered are unforeseen or accidental: "The assumptions on which insurance is based are undermined if successful claims arise out of loss which is not fortuitous" (C. Brown, Insurance Law in Canada (3rd ed. 1997), at p. 4). This economic rationale takes on a public policy flavour where, as here, the acts for which the insured is seeking coverage are socially harmful. It may be undesirable to encourage people to injure others intentionally by indemnifying them from the civil consequences.

[108] In Liberty Mutual v Hollinger, supra, the Court of Appeal for Ontario made it clear that intentional torts may be covered pursuant to a policy of insurance. In that case, as in the case before this Court, the policy provided coverage for certain claims involving intentional torts, such as false arrest, detention or imprisonment and malicious prosecution. The court observed that such intentional torts ordinarily require a high level of intentional conduct. The court stated, at paragraph 18, as follows:

The fortuity principle does not exclude coverage for all claims that arise from intentional acts. An intentional act may have unintended consequences. If the unintended consequence falls within the terms of the policy, it will be covered even if it was caused by the intentional act of the insured. This distinction is reflected by the terms of section 118 of the Insurance Act, which provides that the "contravention of any criminal or other law… does not, by that fact alone, render unenforceable a claim for indemnity under a contract of insurance except where the contravention is committed by the insured… with intent to bring about loss or damage". The fortuity principle is explained in relation to claims for discrimination by F.J. Mootz"Insurance Coverage of Employment Discrimination Claims" (1997) 52 U. Miami L.Rev. at 32, 38:

The general rule in this regard, known as the principle of "fortuity" is that "a contract of insurance to indemnify a person for damages resulting from his own intentional misconduct is void as against public policy and courts will not enforce such a contract." In this context, it is important to read "intentional" narrowly. Many courts recognize that public policy does not prohibit insurance coverage for all liabilities incurred due to intentional torts, but instead precludes coverage only for liabilities arising out of conduct intended to cause harm. Put differently, public policy is implicated only when an employer seeks indemnification for injuries that it intended to inflict, and not when an employer seeks coverage for intentional actions that have resulted in injuries. If it is accurate to say that courts "make insurance" with the doctrine of reasonable expectations, then it is no less accurate to state that they also "unmake insurance" with the public policy limitation on enforcement of policy terms.

[I]f the wrongful act amounts to a purposeful effort by the employer to cause injury to the employee, courts generally will still refuse to enforce otherwise available insurance for reasons of public policy.

A similar statement on the distinction between intentional acts and intentional harm is found in C. Brown et. al., Insurance law in Canada, looseleaf (Toronto: Carswell, 2002) at 18-178 to 18-179: "The courts will be alert to the distinction between the intention to cause the injury itself… and the intention to commit the act that causes injury… the exclusion applies to the former, but not necessarily to the latter." See also Hodgkinson v Economical Mutual Insurance Co., 2003 36413 (ON CA), [2003] O.J. No. 5125 (C.A.), where Morgan J.A. found that it is the presence or absence of an intent to injure that is determinative when deciding whether coverage should be excluded.

[109] In analyzing the respondent's argument as regards the fortuity principle, I apply this distinction between the intentional tort or wrongdoing and intentional harm resulting therefrom to the three subject claims.

[110] In the case of Sheridan, the harm alleged and for which damages are sought is loss of employment, loss of income and loss of professional reputation. The question to be asked is did the alleged intentional acts of malicious prosecution, false arrest and imprisonment result in harm which was intended. In other words, did the OSPCA, in undertaking the alleged actions, intend that their actions would result in Dr. Sheridan's losing his employment, income and professional reputation. I am of the view that the harms for which damages are claimed are not alleged to be intended and cannot be viewed as such.

[111] In the case of Smith, the harm alleged was damage to his person, reputation and property, mental anguish, pain and suffering and medical issues requiring a doctor's care, loss of employment and inability to obtain other employment for a significant period of time and loss of income and future loss of income. Again, the question to be answered is whether the alleged intentional acts of the OSPCA were intended to cause damage to his person, reputation and property, mental anguish, pain and suffering loss of employment and loss of future income. These are not pleaded in the Statement of Claim as being intended and I do not view them as such. While it is pleaded that the defendant acted intentionally to cause “harm”, that harm is not specified. I do not find that a general pleading of "harm" is sufficient. Alternatively, if I am wrong, I find that there is doubt as to whether the general pleading of harm, brings it within the policy coverage. I find that the doubt must be resolved in favour of the ensured: Moneco Ltd. v. Commonwealth Insurance Co., supra, at para 31.

[112] In the case of St. Amand, the harm alleged includes damage to the horses, which they allege were returned in poor condition, loss of the opportunity to breed the horses during the foaling season, and compromise of the early development of the foals. I am not of the view that the property damage for which damages are claimed are alleged to be for can be seen as intended or expected harm. Said harm is not pleaded in the Statement of Claim as being intended.

Conclusion

[113] Based on all of the foregoing, I order as follows:

(a) Sovereign has a duty to defend the Sheridan action,

(b) Sovereign has the duty to defend the Smith action,

(c) Sovereign has a duty to defend the St. Amand action, with the exception of the allegations of personal property damage.

Costs

[114] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

C. J. Brown J.

Date: July 3, 2014