Canada: MacFarlane v. Canadian Universities Reciprocal Insurance Exchange –Should A Professor Warning Others Of A Sexual Predator Colleague Be Covered By Her Employer University's Liability Policy?

Last Updated: September 20 2019
Article by Samantha Ip and Alisa Kaletsky

A recent decision of the Ontario Superior Court of Justice, MacFarlane v. Canadian Universities Reciprocal Insurance Exchange, 2019 ONSC 4631, answered the question of whether a university's insurer had a duty to defend a professor accused of defaming a former colleague in relation to statements about unproven allegations of sexual misconduct. The decision turned on whether the professor accused of certain defamatory acts was acting on behalf of the university at the time of the alleged acts, and thus falling under the definition of an "Additional Insured" as defined by the policy. This decision was also a good reminder that a duty to defend can be easily triggered by pleadings as it is a much broader duty than an insurer's duty to indemnify.


Professor C was terminated from the University of Windsor. The termination was subject to a Non-Disclosure Agreement between Professor C and the University. Following the termination, Dr. M, who was employed at the University, made various allegedly defamatory statements against Professor C, including to Professor C's new employer, warning them that Professor C was a sexual predator. Those defamatory statements related to unproven allegations of sexual misconduct/harassment involving students at the University of Windsor. Professor C brought a defamation action against Dr. M. Dr. M sought coverage under the University's liability policy.

The University's insurer, Canadian Universities Reciprocal Insurance Exchange ("CURIE"), provided liability coverage to employees of the University facing defamation claims, but CURIE denied coverage to Dr. M on the basis that Dr. M was not an insured under the policy as defined and thus CURIE did not have any duty to defend or indemnify Dr. M.

The Key Coverage Issues

The first issue before the court was whether Dr. M was acting within her employment capacity when she made the defamatory statements and, specifically, whether she was acting in her capacity as a professor employed by the University of Windsor and making the statements on the University's behalf. If so, then Dr. M was an "Additional Insured" under the CURIE policy and entitled to coverage. Also at issue was whether the pleadings triggered CURIE's duty to defend Dr. M if she fell under the definition of "Additional Insured".

The Court's Analysis

In considering whether Dr. M had acted in her employment capacity, the Court noted that in making the defamatory statements, Dr. M identified herself as a Professor of Law at Windsor Law, used her University of Windsor email address, and made the defamatory statements to Professor C's current employers about his employment and conduct towards students while he was at the University of Windsor. The court found that Dr. M made those defamatory statements when she was acting in her capacity as a professor at the institution from which Professor C's employment had been terminated.

The Court dismissed CURIE's argument that the Non-Disclosure Agreement foreclosed the possibility that Dr. M was acting in her employment capacity. Surprisingly, the Court held that acting within one's scope of employment does not require that the act be authorized by the employer:

[43]...A university is not an institution with a single voice or a single set of interests...While the University of Windsor may have an official position…that does not mean that others within the institution no longer speak on its behalf just because they have a different view...

[44] "Acting on behalf of" does not require that the specific act be authorized, instructed, permitted or approved by the University of Windsor...

[45] ...the fact that [the University of Windsor] signed an NDA...and may have an interest in upholding that agreement...does not mean the University...does not have an interest in protecting itself against claims by students at other universities to whom it may be found to have owed a legal and moral duty.

After determining that Dr. M was an "Additional Insured" because she was acting in her employment capacity at the University, the court went on to find that the duty to defend had been triggered by the pleadings. The threshold to trigger a duty to defend is low: the insured must prove that, assuming the facts plead in the originating lawsuit are true, there is a "mere possibility" that the claim falls within coverage, giving the "widest latitude" to the plaintiff's originating pleadings (Bacon v. McBride, 1984, I.L.R. para. 1-1776, Co-operators General Insurance Company v. Kane, 2017 BCSC 1720 at para 20). In this case, the pleadings satisfied this well established test. The court concluded there was at least a mere possibility that the claims asserted in the defamation action against Dr. M could result in coverage. Consequently, CURIE had a duty to defend Dr. M in the defamation action.

Concluding Comments

This decision provides a good summary of the law on what it means to be "acting in the scope of employment", and the law applicable to an insurer's duty to defend an insured.

This decision is another example of how courts in Canada tend to find in favour of coverage, particularly when there is room for factual interpretation. Arguably, in this case, there were facts to support that Dr. M was acting on her own accord based on personal motivation. However, this court chose to focus on facts which ultimately led to a finding that Dr. M was acting within her scope of employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions