The Superior Court of Justice has re-emphasized the requirement that an insurer must take appropriate steps to bring exclusions to the insured’s attention where the effect of an exclusion will have the harsh result of denying coverage under an automobile policy.
In GMAC Lease Co. Corp v. Lombard Insurance (2007), 87 O.R. (3d) 813, at paragraph 9, the Court of Appeal held that an insurer must provide the insured with a copy of every endorsement, per section 232(3) of the Insurance Act. The fact that an insurer can provide a certificate of insurance instead of the policy does not take away the duty imposed by section 232(3).
The obligation then is to provide the policy or certificate in an improved form as well as a copy of every endorsement. Since the insurer had failed to comply with section 232(3) of the Insurance Act by failing to deliver a copy of the OPCF 28A endorsement, excluded driver, the insurer cannot rely on the exclusion.
Justice Chapnick more recently in Chen Estate v. Chung, [2010] O.J. No. 5086 (SCJ), reiterated the Ontario Court of Appeal’s decision in GMAC Lease Co. Corp. v. Lombard Insurance.
A weekly update of cases pertaining to the practice of insurance defence.
December 29, 2010
December 22, 2010
Statutory Third Party
Ahmed v. Maharaj, [2010] O.J. No. 4922 (S.C.J.)
Here's a decision that might be useful to counsel for a Statutory Third Party. There were two issues in this motion:
1. Whether the Statutory Third Party is entitled to pursue a crossclaim against one of the co-defendants; and
2. Whether the Statutory Third Party could be compelled to answer questions on examination for discovery about why it denied coverage.
Justice Stewart held as follows:
1. The Statutory Third Party is entitled to bring a crossclaim, since the Insurance Act does not expressly limit it to the right to file a Statement of Defence;
2. The Statutory Third Party is not required to answer questions about why coverage was denied. Generally issues of coverage and issues of liability are to be kept separate. A plaintiff who wishes to challenge a denial of coverage may do so following judgment pursuant to s. 258(1) of the Insurance Act but until that happens, issues of coverage are generally not relevant.
Here's a decision that might be useful to counsel for a Statutory Third Party. There were two issues in this motion:
1. Whether the Statutory Third Party is entitled to pursue a crossclaim against one of the co-defendants; and
2. Whether the Statutory Third Party could be compelled to answer questions on examination for discovery about why it denied coverage.
Justice Stewart held as follows:
1. The Statutory Third Party is entitled to bring a crossclaim, since the Insurance Act does not expressly limit it to the right to file a Statement of Defence;
2. The Statutory Third Party is not required to answer questions about why coverage was denied. Generally issues of coverage and issues of liability are to be kept separate. A plaintiff who wishes to challenge a denial of coverage may do so following judgment pursuant to s. 258(1) of the Insurance Act but until that happens, issues of coverage are generally not relevant.
December 15, 2010
Settlement of Accident Benefits is Not an Admission Threshold Met in Tort
Anand v. Belanger, 2010 ONSC 2345 (CanLii)
The plaintiff was injured when she was struck by a stolen vehicle. State Farm was the plaintiff’s accident benefits provider, and was named as a tort defendant pursuant to the uninsured motorist provisions of the policy.
State Farm paid IRBs until the 104 week mark, when it terminated benefits on the basis that Ms. Anand did not suffer a complete inability to engage in any employment for which she was reasonably suited by education, training or experience. At a mediation, the parties settled past and future IRBs for $100,000. Ms. Anand signed a release that included a provision that the settlement was not an admission of liability.
At the tort trial, the plaintiff sought to preclude State Farm from alleging the plaintiff did not meet threshold on the basis that it had paid for past and future IRBs, which constituted an implicit admission.
Justice Stinson held that payment of IRBs does not amount to an admission in the tort action. The plaintiff signed a release specifically agreeing that the settlement was not an admission of liability. In addition, in its capacity as the accident benefits carrier, State Farm had contractual duties and a duty of utmost good faith in dealing with its insured, Ms. Anand. As a tort defendant, State Farm owed no such duties. Accordingly, State Farm was free to argue the plaintiff did not meet threshold.
Justice Stinson's decision is sensible, especially given the differing characteristics of accident benefits and tort. It also underscores the importance of including a paragraph in releases that settlement is not an admission of liability.
The plaintiff was injured when she was struck by a stolen vehicle. State Farm was the plaintiff’s accident benefits provider, and was named as a tort defendant pursuant to the uninsured motorist provisions of the policy.
State Farm paid IRBs until the 104 week mark, when it terminated benefits on the basis that Ms. Anand did not suffer a complete inability to engage in any employment for which she was reasonably suited by education, training or experience. At a mediation, the parties settled past and future IRBs for $100,000. Ms. Anand signed a release that included a provision that the settlement was not an admission of liability.
At the tort trial, the plaintiff sought to preclude State Farm from alleging the plaintiff did not meet threshold on the basis that it had paid for past and future IRBs, which constituted an implicit admission.
Justice Stinson held that payment of IRBs does not amount to an admission in the tort action. The plaintiff signed a release specifically agreeing that the settlement was not an admission of liability. In addition, in its capacity as the accident benefits carrier, State Farm had contractual duties and a duty of utmost good faith in dealing with its insured, Ms. Anand. As a tort defendant, State Farm owed no such duties. Accordingly, State Farm was free to argue the plaintiff did not meet threshold.
Justice Stinson's decision is sensible, especially given the differing characteristics of accident benefits and tort. It also underscores the importance of including a paragraph in releases that settlement is not an admission of liability.
December 13, 2010
Defence "Life Care" Assessment
This entry was prepared by Alexandra Lacko, articling student.
In the case of Vanderidder v. Aviva Canada Inc., 2010 ONSC 6222, the moving party sought an order compelling the plaintiff, Vanessa Vanderidder to participate in a life care plan assessment by a certified life care planner.
The action arose out of an accident in which the plaintiff sustained an injury when a rock fragment fell from a truck, deflected from the road surface, went through her open car window and struck her in the head. The plaintiff alleged that she sustained serious injuries which caused permanent and serious disfigurement and serious impairments of important physical, mental and psychological functions. She also alleged that she continued to suffer and required treatment, and would continue to suffer from the effects of her injuries for an indefinite period of time. The plaintiff claimed damages for future health care costs as a result of the effects of the injuries on the activity of the plaintiff.
In support of Vanessa Vanderidder’s claim for future health care costs, counsel for the plaintiff served a future care cost report authored by Keith C. Hayes, Ph.D. The report was analysed by an actuary and placed a present value on the plaintiff’s future health care needs at $719,901.00.
As a result of the substantial monetary claim of the plaintiff, the moving party wished to have Vanessa participate in a life care assessment/future care cost assessment by an individual who had a Bachelor of Science in Occupational Therapy and was defined as a “practitioner” pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E.23. The basis for the moving party’s motion for the life care assessment/future care cost assessment was prejudice.
The position of the responding party, Vanessa Vanderidder, was that the moving party had not deduced any evidence that the requested assessment was necessary to aid a health practitioner as a diagnostic tool.
Plaintiff’s counsel asked Justice Granger to recuse himself from hearing the motion on the grounds that in Kozhani v. Gelbart, [2010] O.J. No. 1348, Justice Granger ordered the plaintiff to submit to a life care assessment/future care cost assessment by an occupational therapist without a health practitioner requiring the assessment as a diagnostic tool. Plaintiff’s counsel suggested that based on Justice Granger’s earlier decision, there was a reasonable apprehension of bias and that Granger J. should recuse himself from hearing the motion. Justice Granger went through the test for bias and found that plaintiff counsel’s apprehension was an apprehension of lack of success rather than an apprehension of bias and Justice Granger did not recuse himself.
In coming to his decision on the assessment, Justice Granger underwent an analysis of the case law in the area of non-medical expert assessment. Justice Granger stated that:
It would seem to me that if Vanessa Vanderidder elects to place before the court evidence concerning her future care needs as determined by a non-health practitioner, she can hardly be heard to claim that it would be unfair to order her to submit to such an assessment by a person of the choosing of the defence.
The Court concluded that “fairness can only be achieved by ordering Vanessa Vanderidder to participate in a life care assessment by a person other than a “health practitioner” notwithstanding that there is a lack of evidence before me from a health practitioner that such an assessment is needed by a health practitioner as a “diagnostic aid.”
The plaintiff was therefore ordered to participate in a life care plan assessment by the certified life care planner and occupational therapist. The Court’s goal was to achieve fairness in the trial process in order to create a “level playing field” for trial.
In the case of Vanderidder v. Aviva Canada Inc., 2010 ONSC 6222, the moving party sought an order compelling the plaintiff, Vanessa Vanderidder to participate in a life care plan assessment by a certified life care planner.
The action arose out of an accident in which the plaintiff sustained an injury when a rock fragment fell from a truck, deflected from the road surface, went through her open car window and struck her in the head. The plaintiff alleged that she sustained serious injuries which caused permanent and serious disfigurement and serious impairments of important physical, mental and psychological functions. She also alleged that she continued to suffer and required treatment, and would continue to suffer from the effects of her injuries for an indefinite period of time. The plaintiff claimed damages for future health care costs as a result of the effects of the injuries on the activity of the plaintiff.
In support of Vanessa Vanderidder’s claim for future health care costs, counsel for the plaintiff served a future care cost report authored by Keith C. Hayes, Ph.D. The report was analysed by an actuary and placed a present value on the plaintiff’s future health care needs at $719,901.00.
As a result of the substantial monetary claim of the plaintiff, the moving party wished to have Vanessa participate in a life care assessment/future care cost assessment by an individual who had a Bachelor of Science in Occupational Therapy and was defined as a “practitioner” pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E.23. The basis for the moving party’s motion for the life care assessment/future care cost assessment was prejudice.
The position of the responding party, Vanessa Vanderidder, was that the moving party had not deduced any evidence that the requested assessment was necessary to aid a health practitioner as a diagnostic tool.
Plaintiff’s counsel asked Justice Granger to recuse himself from hearing the motion on the grounds that in Kozhani v. Gelbart, [2010] O.J. No. 1348, Justice Granger ordered the plaintiff to submit to a life care assessment/future care cost assessment by an occupational therapist without a health practitioner requiring the assessment as a diagnostic tool. Plaintiff’s counsel suggested that based on Justice Granger’s earlier decision, there was a reasonable apprehension of bias and that Granger J. should recuse himself from hearing the motion. Justice Granger went through the test for bias and found that plaintiff counsel’s apprehension was an apprehension of lack of success rather than an apprehension of bias and Justice Granger did not recuse himself.
In coming to his decision on the assessment, Justice Granger underwent an analysis of the case law in the area of non-medical expert assessment. Justice Granger stated that:
It would seem to me that if Vanessa Vanderidder elects to place before the court evidence concerning her future care needs as determined by a non-health practitioner, she can hardly be heard to claim that it would be unfair to order her to submit to such an assessment by a person of the choosing of the defence.
The Court concluded that “fairness can only be achieved by ordering Vanessa Vanderidder to participate in a life care assessment by a person other than a “health practitioner” notwithstanding that there is a lack of evidence before me from a health practitioner that such an assessment is needed by a health practitioner as a “diagnostic aid.”
The plaintiff was therefore ordered to participate in a life care plan assessment by the certified life care planner and occupational therapist. The Court’s goal was to achieve fairness in the trial process in order to create a “level playing field” for trial.
December 8, 2010
An Interesting Twist on Beasley v. Barrand
The fallout from the Beasley v. Barrand decision continues. You may recall that in Beasley, the Court refused to permit expert evidence at trial from accident benefits assessors.
In Jeffrey v. Baker, [2010] O.J. No. 4415 (S.C.J.), the defendant sought to compel the plaintiff to attend at an orthopaedic IME. She had already attended at two IMEs with a physiatrist and psychiatrist, and the defendant had lost a motion in 2009 to compel two additional examinations.
Justice Quigley allowed the motion and ordered the plaintiff to attend the orthopaedic assessment. One of the reasons for allowing the IME was that prior to enactment of the new rule 53 the defendant would have been at liberty to call accident benefits assessors to give expert evidence at trial, but given the rule change this is no longer permitted, as made clear in Beasley. The Court was satisfied there was a real risk the defendant would be left without evidence to refute the plaintiff’s claims if the orthopaedic IME was not permitted.
In Jeffrey v. Baker, [2010] O.J. No. 4415 (S.C.J.), the defendant sought to compel the plaintiff to attend at an orthopaedic IME. She had already attended at two IMEs with a physiatrist and psychiatrist, and the defendant had lost a motion in 2009 to compel two additional examinations.
Justice Quigley allowed the motion and ordered the plaintiff to attend the orthopaedic assessment. One of the reasons for allowing the IME was that prior to enactment of the new rule 53 the defendant would have been at liberty to call accident benefits assessors to give expert evidence at trial, but given the rule change this is no longer permitted, as made clear in Beasley. The Court was satisfied there was a real risk the defendant would be left without evidence to refute the plaintiff’s claims if the orthopaedic IME was not permitted.
December 1, 2010
Tort Defendant May Call SABS Assessors as Fact Witnesses
You may recall that we recently blogged on the case of Beasley v. Barrand, in which Justice Moore held that accident benefits assessors could not be called as experts to testify for the tort defendant at trial. The link is here:
http://ontarioinsurancelaw.blogspot.com/2010/10/tort-defendant-not-permitted-to-call.html
In Anand v. State Farm (unreported decision, April 23, 2010), Justice Stinson followed Justice Moore’s decision, but held that the accident benefits assessors could be called as fact witnesses. They were not permitted to testify about their conclusions or opinions, but could testify about their observations of the plaintiff.
http://ontarioinsurancelaw.blogspot.com/2010/10/tort-defendant-not-permitted-to-call.html
In Anand v. State Farm (unreported decision, April 23, 2010), Justice Stinson followed Justice Moore’s decision, but held that the accident benefits assessors could be called as fact witnesses. They were not permitted to testify about their conclusions or opinions, but could testify about their observations of the plaintiff.
November 25, 2010
The Hills Are Alive... With Danger
Deering v. Scugog (Township), [2010] O.J. No. 4229 (S.C.J.).
Howden, J. discussed the duty that road authorities owe to motorists in the case of Deering v. Scugog (Township), [2010] O.J. No. 4229 (S.C.J.), a case involving a motor vehicle accident that occurred on August 10, 2004, which left two teenage sisters severely injured.
Shannon Deering, the older sister who was 19 years old at the time, was driving her 2002 Pontiac Grand AM up a hill on Coates Road West in Oshawa, when the headlights of an eastbound vehicle appeared over the crest of the hill. The vehicle moved to the right, then arced left, and finally veered to the right over the shoulder of the road.
Justice Howden ultimately found that the segment of Coates Rd. West was in a state of non-repair because in his view, the hill where the accident happened “represented a virtually unique source of danger to ordinary drivers, particularly at night due to its combination of features likely to create an emergency situation with little or no preview time for westbound drivers to deal safely with it”.
At the time of the accident, Coates Road West was paved and flat for close to two kilometers, after which it climbed and fell away over three hills. The third hill was the most significant, and in August 2004, the road had no lane markings, no signage, and an un-posted speed limit of 80 km/hr.
In July 2004, the road was involved in a rehabilitation project to improve the road’s base and surface. The aim of the rehabilitation project was to provide an adequate sub-structure and surface treatment. By July 20, 2004, a dark-coloured sealant or emulsion was applied to the road as the final phase of the project. Immediately afterwards the road was re-opened in its otherwise previous state which was unsigned, unlit and unlined.
After a review of the relevant case law, Justice Howden determined that road authorities have a duty to ordinary motorists to keep their roads in reasonable repair, including the type and location of the road. The standard of care uses as the measure of reasonable conduct the ordinary reasonable driver and the duty to repair arises wherever an unreasonable risk of harm exists on the roadway for which obvious cues on or near the road are not present and no warning is provided, subject to certain defences.
Howden, J. stated that “The ordinary motorist includes those of average range of driving ability – not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes.”
He further declared that “the duty to repair under section 44 should no longer ignore the need in circumstances of pre-design age roads near areas of urban change and growth to incorporate assessments of safety measures into road rehabilitation and reconstruction projects”.
This blog contribution by articling student Alex Lacko.
Howden, J. discussed the duty that road authorities owe to motorists in the case of Deering v. Scugog (Township), [2010] O.J. No. 4229 (S.C.J.), a case involving a motor vehicle accident that occurred on August 10, 2004, which left two teenage sisters severely injured.
Shannon Deering, the older sister who was 19 years old at the time, was driving her 2002 Pontiac Grand AM up a hill on Coates Road West in Oshawa, when the headlights of an eastbound vehicle appeared over the crest of the hill. The vehicle moved to the right, then arced left, and finally veered to the right over the shoulder of the road.
Justice Howden ultimately found that the segment of Coates Rd. West was in a state of non-repair because in his view, the hill where the accident happened “represented a virtually unique source of danger to ordinary drivers, particularly at night due to its combination of features likely to create an emergency situation with little or no preview time for westbound drivers to deal safely with it”.
At the time of the accident, Coates Road West was paved and flat for close to two kilometers, after which it climbed and fell away over three hills. The third hill was the most significant, and in August 2004, the road had no lane markings, no signage, and an un-posted speed limit of 80 km/hr.
In July 2004, the road was involved in a rehabilitation project to improve the road’s base and surface. The aim of the rehabilitation project was to provide an adequate sub-structure and surface treatment. By July 20, 2004, a dark-coloured sealant or emulsion was applied to the road as the final phase of the project. Immediately afterwards the road was re-opened in its otherwise previous state which was unsigned, unlit and unlined.
After a review of the relevant case law, Justice Howden determined that road authorities have a duty to ordinary motorists to keep their roads in reasonable repair, including the type and location of the road. The standard of care uses as the measure of reasonable conduct the ordinary reasonable driver and the duty to repair arises wherever an unreasonable risk of harm exists on the roadway for which obvious cues on or near the road are not present and no warning is provided, subject to certain defences.
Howden, J. stated that “The ordinary motorist includes those of average range of driving ability – not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes.”
He further declared that “the duty to repair under section 44 should no longer ignore the need in circumstances of pre-design age roads near areas of urban change and growth to incorporate assessments of safety measures into road rehabilitation and reconstruction projects”.
This blog contribution by articling student Alex Lacko.
November 10, 2010
Filing Expert Reports as Exhibits at Trial - Part 2
In our last post, we discussed the Clark v. Zigrossi decision, where Justice Brown held that whether a party can file an expert’s report and call viva voce evidence from that expert is a matter of the court’s discretion.
In coming to this conclusion, Justice Brown undertook an analysis of the origins of the position that the report of an expert witness who testifies does not become an exhibit unless counsel agree or the court so orders. The approach was traced back to the 1974 Court of Appeal decision in Ferraro v. Lee (1974), 2 O.R. (2d) 417 (C.A.), in which the purpose of s. 52(2) of the Evidence Act was examined and it was found that the intention of the Legislature was to provide for the introduction into evidence of the medical report so that the party tendering it might be relieved from having to call the doctor to give evidence. It was then reasoned that a party cannot therefore proceed both to file the report and call the doctor. In drawing this conclusion, the Court of Appeal disagreed with the earlier case of Snyder v. Siutters, [1970] 3 O.R. 789 (H.C.J.), in which the trial judge granted leave to file the reports of doctors who were called to give viva voce evidence.
In Snyder v. Siutters, Wright J. held that it was in the interests of the administration of justice not only that the medical reports should be available in their entirety, but that if they are available, viva voce evidence of the practitioner should also be available. He went on to describe three great advantages of making both the reports and the experts’ testimony available to the jury, which Justice Brown found to possess a certain attractiveness. The advantages being that:
1) it enables a fixed and coherent opinion by the doctor to be put before the Court;
2) it enables the doctor, if he testifies to explain the technical language, and any other matters that arise by reason of evidence or other developments of the trial, and it gives the opposite party the right to cross-examine; and
3) it preserves for the jury room in an exact way the testimony of the doctor.
The Court of Appeal has subsequently interpreted Ferraro v. Lee and held that it is a matter of judicial discretion as to whether a party may both call an expert and file his report.
Thanks to our articling student, Alexandra Lacko, for contributing this post.
In coming to this conclusion, Justice Brown undertook an analysis of the origins of the position that the report of an expert witness who testifies does not become an exhibit unless counsel agree or the court so orders. The approach was traced back to the 1974 Court of Appeal decision in Ferraro v. Lee (1974), 2 O.R. (2d) 417 (C.A.), in which the purpose of s. 52(2) of the Evidence Act was examined and it was found that the intention of the Legislature was to provide for the introduction into evidence of the medical report so that the party tendering it might be relieved from having to call the doctor to give evidence. It was then reasoned that a party cannot therefore proceed both to file the report and call the doctor. In drawing this conclusion, the Court of Appeal disagreed with the earlier case of Snyder v. Siutters, [1970] 3 O.R. 789 (H.C.J.), in which the trial judge granted leave to file the reports of doctors who were called to give viva voce evidence.
In Snyder v. Siutters, Wright J. held that it was in the interests of the administration of justice not only that the medical reports should be available in their entirety, but that if they are available, viva voce evidence of the practitioner should also be available. He went on to describe three great advantages of making both the reports and the experts’ testimony available to the jury, which Justice Brown found to possess a certain attractiveness. The advantages being that:
1) it enables a fixed and coherent opinion by the doctor to be put before the Court;
2) it enables the doctor, if he testifies to explain the technical language, and any other matters that arise by reason of evidence or other developments of the trial, and it gives the opposite party the right to cross-examine; and
3) it preserves for the jury room in an exact way the testimony of the doctor.
The Court of Appeal has subsequently interpreted Ferraro v. Lee and held that it is a matter of judicial discretion as to whether a party may both call an expert and file his report.
Thanks to our articling student, Alexandra Lacko, for contributing this post.
November 3, 2010
Filing Expert Reports as Exhibits at Trial - Part 1
Does Expert Testimony Preclude the Expert’s Report as an Exhibit?
In Clark v. Zigrossi, [2010] O.J. No. 3954 (Ont. Sup. Ct.), Justice Brown made a mid-trial ruling on whether an expert report can be filed as an exhibit even though the expert will be testifying at trial.
The plaintiff was seeking damages for injuries he alleged to have suffered in a July 2003 collision with the car driven by the defendant. The defendant had admitted liability and the jury was to assess damages. The plaintiff retained as an expert, Dr. Joseph Kwok, an orthopaedic surgeon who had prepared an expert report based on his examination of the plaintiff. The plaintiff served Dr. Kwok’s report on the defendant and gave the defendant notice pursuant to s. 52(2) of the Evidence Act, R.S.O. 1990, c. E.23. The plaintiff indicated his intention to adduce expert evidence “by either calling them to testify or by filing their reports.” At trial, plaintiff’s counsel sought leave both to call Dr. Kwok to give viva voce evidence and to mark his expert report as an exhibit, with copies of the report being provided to the jury so that they could follow the doctor’s evidence. Defendant’s counsel objected and submitted that the plaintiff must elect either to file the report or elicit viva voce evidence from the doctor. Defendant’s counsel acknowledged that if Dr. Kwok’s report was to be filed instead of him giving oral evidence at trial, she would require his presence to cross-examine him on his report, so Dr. Kwok’s attendance at trial would be necessary regardless of which path was taken.
Justice Brown held that the court possessed the discretion to permit an expert’s report to be filed where the expert intended to give viva voce evidence at trial. The needs of jurors to follow and understand the evidence should inform the exercise of judicial discretion.
Ultimately, in the circumstances of the case, Justice Brown did not think that the jury would encounter much difficulty in following Dr. Kwok’s evidence without having copies of his report and so it was not filed as an exhibit.
Justice Brown’s analysis affirms that there is no hard and fast rule that exists as to whether a party must elect either to file an expert’s report or call the expert to give viva voce evidence. In a jury trial, whether a party may call a health care expert to testify and also file his report as an exhibit remains a matter of discretion for the trial judge to determine.
The decision contains a good summary of the case law regarding filing expert reports and calling viva voce evidence. In our next post we will summarize those decisions.
Thanks to our articling student, Alexandra Lacko, for contributing this post.
In Clark v. Zigrossi, [2010] O.J. No. 3954 (Ont. Sup. Ct.), Justice Brown made a mid-trial ruling on whether an expert report can be filed as an exhibit even though the expert will be testifying at trial.
The plaintiff was seeking damages for injuries he alleged to have suffered in a July 2003 collision with the car driven by the defendant. The defendant had admitted liability and the jury was to assess damages. The plaintiff retained as an expert, Dr. Joseph Kwok, an orthopaedic surgeon who had prepared an expert report based on his examination of the plaintiff. The plaintiff served Dr. Kwok’s report on the defendant and gave the defendant notice pursuant to s. 52(2) of the Evidence Act, R.S.O. 1990, c. E.23. The plaintiff indicated his intention to adduce expert evidence “by either calling them to testify or by filing their reports.” At trial, plaintiff’s counsel sought leave both to call Dr. Kwok to give viva voce evidence and to mark his expert report as an exhibit, with copies of the report being provided to the jury so that they could follow the doctor’s evidence. Defendant’s counsel objected and submitted that the plaintiff must elect either to file the report or elicit viva voce evidence from the doctor. Defendant’s counsel acknowledged that if Dr. Kwok’s report was to be filed instead of him giving oral evidence at trial, she would require his presence to cross-examine him on his report, so Dr. Kwok’s attendance at trial would be necessary regardless of which path was taken.
Justice Brown held that the court possessed the discretion to permit an expert’s report to be filed where the expert intended to give viva voce evidence at trial. The needs of jurors to follow and understand the evidence should inform the exercise of judicial discretion.
Ultimately, in the circumstances of the case, Justice Brown did not think that the jury would encounter much difficulty in following Dr. Kwok’s evidence without having copies of his report and so it was not filed as an exhibit.
Justice Brown’s analysis affirms that there is no hard and fast rule that exists as to whether a party must elect either to file an expert’s report or call the expert to give viva voce evidence. In a jury trial, whether a party may call a health care expert to testify and also file his report as an exhibit remains a matter of discretion for the trial judge to determine.
The decision contains a good summary of the case law regarding filing expert reports and calling viva voce evidence. In our next post we will summarize those decisions.
Thanks to our articling student, Alexandra Lacko, for contributing this post.
October 28, 2010
Tort Defendant Not Permitted to Call Evidence from Plaintiff's Accident Benefits Assessors
Beasley and Scott v. Barrand, 2010 ONSC 2095 (S.C.J.)
This case involves the interpretation of the new requirements for experts pursuant to Rule 53.
The tort defendants in this trial sought to call evidence from three doctors who had assessed the plaintiff on behalf of his accident benefits carrier. The defendants made efforts to have the doctors brought into compliance with the new Rule 53.03 by having them sign an Acknowledgement of Expert’s Duty.
Justice Moore refused to allow the doctors to testify given that they could not comply with Rule 53.03. They were retained by an insurer that was not before the court, were not treating physicians and their instructions were not clear from the evidence. Justice Moore Held:
I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with Rule 53.03. I say “should” for there may be cases where that is not possible and then the court may consider relieving against non-compliance to ensure a fair adjudication of the issues upon their merits but this is not one of those cases.
This case places great constraints on the ability of the defence to call evidence with respect to the plaintiff’s injuries. It imposes a high hurdle for the defendants in order to call evidence relevant to the plaintiff’s injuries. Perhaps the accident benefits assessors could be called as fact witnesses which would mean r. 53.03 would not apply. It appears that this would be an area that would benefit from appellant intervention.
This case involves the interpretation of the new requirements for experts pursuant to Rule 53.
The tort defendants in this trial sought to call evidence from three doctors who had assessed the plaintiff on behalf of his accident benefits carrier. The defendants made efforts to have the doctors brought into compliance with the new Rule 53.03 by having them sign an Acknowledgement of Expert’s Duty.
Justice Moore refused to allow the doctors to testify given that they could not comply with Rule 53.03. They were retained by an insurer that was not before the court, were not treating physicians and their instructions were not clear from the evidence. Justice Moore Held:
I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with Rule 53.03. I say “should” for there may be cases where that is not possible and then the court may consider relieving against non-compliance to ensure a fair adjudication of the issues upon their merits but this is not one of those cases.
This case places great constraints on the ability of the defence to call evidence with respect to the plaintiff’s injuries. It imposes a high hurdle for the defendants in order to call evidence relevant to the plaintiff’s injuries. Perhaps the accident benefits assessors could be called as fact witnesses which would mean r. 53.03 would not apply. It appears that this would be an area that would benefit from appellant intervention.
October 27, 2010
Before hiring a lawyer...
The GlobeandMail.com has an interesting article entitled Before hiring a lawyer, be sure to do your homework, by Tony Wilson.
You can read it at http://www.theglobeandmail.com/report-on-business/your-business/start/tony-wilson/before-hiring-a-lawyer-be-sure-to-do-your-homework/article1771820/
You can read it at http://www.theglobeandmail.com/report-on-business/your-business/start/tony-wilson/before-hiring-a-lawyer-be-sure-to-do-your-homework/article1771820/
October 21, 2010
The Supreme Court of Canada on a Duty to Defend - part 3
Justice Rothstein, for the Supreme Court of Canada in Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 S.C.C. 33., helpfully affirmed that CGL insurance policies are most typically written in three sections, being (i) coverage, (ii) exclusions and (iii) exceptions to the exclusions.
Within the first section, the onus is on the insured to show that the pleadings fall within the initial grant of coverage.
The next section, exclusions, should be read in light of the initial grant of coverage and do not create coverage in themselves. Exclusions only preclude coverage when the claim otherwise falls within the initial grant of coverage.
The third section, exceptions to exclusions, also do not create coverage but bring an otherwise excluded claim back within coverage where the claim fell within the initial grant of coverage in the first place.
Justice Rothstein concludes that the pleadings reveal a possibility of “property damage” and also sufficiently allege an “accident” such that the claim in the pleadings falls within the initial grant of coverage provided by the policy. The insurer, Lombard, then argued that the “work performed” exclusion precludes coverage. Lombard argued that there was no “subcontractor exception” to the exception and therefore work performed by subcontractors was also excluded. However, Justice Rothstein concluded that the exclusion did not clearly exclude subcontractors’ work and that there is a possibility of coverage so that the duty to defend is triggered.
This decision helpfully sets out the law in this complex area in a clear and succinct way. Hopefully this will help eliminate some of the confusion.
Within the first section, the onus is on the insured to show that the pleadings fall within the initial grant of coverage.
The next section, exclusions, should be read in light of the initial grant of coverage and do not create coverage in themselves. Exclusions only preclude coverage when the claim otherwise falls within the initial grant of coverage.
The third section, exceptions to exclusions, also do not create coverage but bring an otherwise excluded claim back within coverage where the claim fell within the initial grant of coverage in the first place.
Justice Rothstein concludes that the pleadings reveal a possibility of “property damage” and also sufficiently allege an “accident” such that the claim in the pleadings falls within the initial grant of coverage provided by the policy. The insurer, Lombard, then argued that the “work performed” exclusion precludes coverage. Lombard argued that there was no “subcontractor exception” to the exception and therefore work performed by subcontractors was also excluded. However, Justice Rothstein concluded that the exclusion did not clearly exclude subcontractors’ work and that there is a possibility of coverage so that the duty to defend is triggered.
This decision helpfully sets out the law in this complex area in a clear and succinct way. Hopefully this will help eliminate some of the confusion.
October 15, 2010
The Supreme Court of Canada on a Duty to Defend - part 2
“Leaky condominiums” have become notorious in British Columbia
The policies requireLombard to defend and indemnify Progressive Homes when Progressive is legally obligated to pay damages because of property damage caused by an occurrence or accident. Lombard refused to defend the claims and Progressive brought an application for a declaration that Lombard is under a duty to defend.
Justice Rothstein went on to declare that an insurer is required to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer to indemnify the insured to the claim. It is irrelevant whether the allegations in the pleadings can be proven in evidence. What is required is the mere possibility that the claim falls within the insurance policy. In examining the pleadings to determine whether the claim falls within the scope of coverage, the parties to the insurance contract should not be bound by the labels selected by the plaintiff but by the true nature or substance of the claim.
Justice Rothstein, for the Supreme Court of Canada, reiterated some significant principles of insurance policy interpretation, including that when the language of the policy in unambiguous, the court should give effect to the clear language and should read the contract as a whole. Where the language of the insurance policy is ambiguous, courts should prefer interpretations that are consistent with the reasonable expectations of the parties and courts should avoid interpretations that would give rise to an unrealistic result. Where these rules of construction failed to resolve an ambiguity, courts will construe the policy contra proferentem. Subsumed by the contra proferentem rule is that coverage provisions should be interpreted broadly and exclusion clauses narrowly.
Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 S.C.C. 33.
The policies require
Justice Rothstein went on to declare that an insurer is required to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer to indemnify the insured to the claim. It is irrelevant whether the allegations in the pleadings can be proven in evidence. What is required is the mere possibility that the claim falls within the insurance policy. In examining the pleadings to determine whether the claim falls within the scope of coverage, the parties to the insurance contract should not be bound by the labels selected by the plaintiff but by the true nature or substance of the claim.
Justice Rothstein, for the Supreme Court of Canada, reiterated some significant principles of insurance policy interpretation, including that when the language of the policy in unambiguous, the court should give effect to the clear language and should read the contract as a whole. Where the language of the insurance policy is ambiguous, courts should prefer interpretations that are consistent with the reasonable expectations of the parties and courts should avoid interpretations that would give rise to an unrealistic result. Where these rules of construction failed to resolve an ambiguity, courts will construe the policy contra proferentem. Subsumed by the contra proferentem rule is that coverage provisions should be interpreted broadly and exclusion clauses narrowly.
Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 S.C.C. 33.
October 12, 2010
The Supreme Court of Canada on a Duty to Defend - part 1
Recently, the Supreme Court of Canada held, by unanimous decision, that an insurer will be obligated to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer to indemnify the insured for the claim regardless of whether the allegations in the pleadings can be proven in evidence. What is required is the mere possibility that a claim falls within the insurance policy. Progressive Homes Ltd. v. Lombard General Insurance Company of Canada
The focus of the policy interpretation should first and foremost be on the language of the policy itself. Justice Rothstein, for the Supreme Court of Canada, carefully reviewed the terms of the insurance policy. I think this case helpfully emphasizes and reiterates the principle that the terms of the insurance contract itself must be carefully reviewed. Not all insurance policies are the same and it is important for an insurer or coverage counsel to carefully review the terms of the policy. The Supreme Court of Canada has emphasized that the duty to defend must be determined on the terms of the insurance policy.
October 4, 2010
Fraudulent Car Accidents
In today's Globe and Mail (October 4, 2010) it is reported that the Insurance Bureau of Canada is warning about a "concerning trend" of insurance fraud.
"There has been a rise in crashes that are orchestrated to claim lucrative no-fault insurance payouts and, to avoid detection, perpetrators are increasingly involving innocent drivers in their pre-planned collisions."
According to the article, "Toronto is the hotbed, with organized crime being linked to several staged accidents. Insurance industry investigators involved in a recent probe, dubbed Project 92, say they’ve identified more than 40 staged car accidents carried out by one particular crime ring alone, 17 of which have already been criminally investigated. Police have laid 291 charges against 39 individuals in the sting, 20 of whom have been convicted."
http://www.theglobeandmail.com/report-on-business/insurers-beware-national-watchdog-raises-alarm-for-fraud/article1740676/
"There has been a rise in crashes that are orchestrated to claim lucrative no-fault insurance payouts and, to avoid detection, perpetrators are increasingly involving innocent drivers in their pre-planned collisions."
According to the article, "Toronto is the hotbed, with organized crime being linked to several staged accidents. Insurance industry investigators involved in a recent probe, dubbed Project 92, say they’ve identified more than 40 staged car accidents carried out by one particular crime ring alone, 17 of which have already been criminally investigated. Police have laid 291 charges against 39 individuals in the sting, 20 of whom have been convicted."
http://www.theglobeandmail.com/report-on-business/insurers-beware-national-watchdog-raises-alarm-for-fraud/article1740676/
September 22, 2010
Compelling Attendance at a Future Care IME
Here is a useful case in compelling a plaintiff to attend an IME with an occupational therapist.
Moore v. Wakim, 2010 ONSC 1991 (CanLii)
The defendant sought to compel the plaintiff to attend a Future Care Cost Assessment with an occupational therapist. The plaintiff had already undergone an orthopedic IME and a psychiatric IME.
Justice Howden ordered the assessment. The plaintiff had served a Future Care Cost report alleging attendant care potentially exceeding $2,000,000. Justice Howden held that the court has inherent jurisdiction to exercise its discretion in ordering assessments and it is not necessary to show that the assessment is a "diagnostic aid". There is a line of cases which stand for the principle that an assessment by someone who is not a health practitioner (such as an occupational therapist) must be necessary as a diagnostic aid to assist a health practitioner complete his or her report. Justice Howden accepted that the report was vital to the final result in the case since future care was a principal issue.
Cases such as Moore are helpful in obtaining reports to respond to the plaintiff. Such reports can be ordered under s. 105 of the Courts of Justice Act as "diagnostic aids", but may also be ordered pursuant to the Court's inherent discretion.
Moore v. Wakim, 2010 ONSC 1991 (CanLii)
The defendant sought to compel the plaintiff to attend a Future Care Cost Assessment with an occupational therapist. The plaintiff had already undergone an orthopedic IME and a psychiatric IME.
Justice Howden ordered the assessment. The plaintiff had served a Future Care Cost report alleging attendant care potentially exceeding $2,000,000. Justice Howden held that the court has inherent jurisdiction to exercise its discretion in ordering assessments and it is not necessary to show that the assessment is a "diagnostic aid". There is a line of cases which stand for the principle that an assessment by someone who is not a health practitioner (such as an occupational therapist) must be necessary as a diagnostic aid to assist a health practitioner complete his or her report. Justice Howden accepted that the report was vital to the final result in the case since future care was a principal issue.
Cases such as Moore are helpful in obtaining reports to respond to the plaintiff. Such reports can be ordered under s. 105 of the Courts of Justice Act as "diagnostic aids", but may also be ordered pursuant to the Court's inherent discretion.
September 15, 2010
Accident Benefits: Application Forms Not Needed
The following blog entry was contributed by Alexandra Lacko, articling student. She will be making regular contributions to our blog in the coming weeks.
In ING Insurance Co. of Canada v. TD Insurance Meloche Monnex, [2010] O.J. No. 3549 (C.A.), the Court of Appeal for Ontario recently answered a question on what triggers an insurance company’s obligation to pay accident benefits.
The question answered in this case was whether forms completed by a chiropractor who treated the claimants and sent the forms to ING, amount to “completed applications for benefits”, thereby triggering ING’s obligation to pay benefits.
J.A. Gillese held that “an application for accident benefits need not be on a certain form in order to be valid - it need only provide sufficient particulars to reasonably assist the insurer with processing the application, identifying the benefits to which the applicant may be entitled, and assessing the claim.” She further stated that the arbitrator was correct to find that ING had failed to take reasonable steps to obtain the necessary additional information from the claimants.
The four claimants were injured in a motor vehicle accident and were all treated by the same chiropractor for treatment of their injuries. The chiropractor forwarded the four forms to ING because she said she had seen ING’s contact information in her file and wanted to receive payment for the services she had provided to the claimants.
The forms indicated they were accident benefit claims and provided a claim number, policy number and the date of the accident. Each claimant’s full name, address, telephone number, gender and birth date was filled out.
ING tried to contact the claimants based on the information in the forms and found that the telephone number was out of service. ING received a cell phone number for one of the claimants from the doctor. The claimant was reached briefly but did not call ING back. As well, an ING adjuster sent letters to each of the claimants, but all of the letters were sent to one address which was no longer the address of any of the claimants. ING did not receive responses to any of its letters, and ING was not contacted by any of the claimants. The claimants did not send ING applications for accident benefits in OCF-1 Forms. ING closed the file for the four claimants on July 20, 2007.
On July 25, 2007, TD opened accident benefit claims files for the claimants and received four OCF-1 Forms from the claimants’ authorized representative. ING and TD disagreed about which had been the first insurer to receive a completed application for accident benefits within the meaning of s. 2 of O. Reg. 283/95 to the Insurance Act, R.S.O. 1990, c. I.8.
The matter went to arbitration to be determined, in which the arbitrator held that ING was responsible for the payment of benefits because the forms from the chiropractor constituted a “completed application for benefits”. ING’s application to the Superior Court was dismissed. The Court of Appeal also dismissed the appeal.
In ING Insurance Co. of Canada v. TD Insurance Meloche Monnex, [2010] O.J. No. 3549 (C.A.), the Court of Appeal for Ontario recently answered a question on what triggers an insurance company’s obligation to pay accident benefits.
The question answered in this case was whether forms completed by a chiropractor who treated the claimants and sent the forms to ING, amount to “completed applications for benefits”, thereby triggering ING’s obligation to pay benefits.
J.A. Gillese held that “an application for accident benefits need not be on a certain form in order to be valid - it need only provide sufficient particulars to reasonably assist the insurer with processing the application, identifying the benefits to which the applicant may be entitled, and assessing the claim.” She further stated that the arbitrator was correct to find that ING had failed to take reasonable steps to obtain the necessary additional information from the claimants.
The four claimants were injured in a motor vehicle accident and were all treated by the same chiropractor for treatment of their injuries. The chiropractor forwarded the four forms to ING because she said she had seen ING’s contact information in her file and wanted to receive payment for the services she had provided to the claimants.
The forms indicated they were accident benefit claims and provided a claim number, policy number and the date of the accident. Each claimant’s full name, address, telephone number, gender and birth date was filled out.
ING tried to contact the claimants based on the information in the forms and found that the telephone number was out of service. ING received a cell phone number for one of the claimants from the doctor. The claimant was reached briefly but did not call ING back. As well, an ING adjuster sent letters to each of the claimants, but all of the letters were sent to one address which was no longer the address of any of the claimants. ING did not receive responses to any of its letters, and ING was not contacted by any of the claimants. The claimants did not send ING applications for accident benefits in OCF-1 Forms. ING closed the file for the four claimants on July 20, 2007.
On July 25, 2007, TD opened accident benefit claims files for the claimants and received four OCF-1 Forms from the claimants’ authorized representative. ING and TD disagreed about which had been the first insurer to receive a completed application for accident benefits within the meaning of s. 2 of O. Reg. 283/95 to the Insurance Act, R.S.O. 1990, c. I.8.
The matter went to arbitration to be determined, in which the arbitrator held that ING was responsible for the payment of benefits because the forms from the chiropractor constituted a “completed application for benefits”. ING’s application to the Superior Court was dismissed. The Court of Appeal also dismissed the appeal.
September 8, 2010
Mandatory Mediation in Motor Vehicle Tort Claims
The Court of Appeal for Ontario has recently held that the refusal of an insurer to mediate a motor vehicle tort claim should attract cost consequences, per subsections 258.6(1) and (2) of the Insurance Act. See Keam v. Caddey, 2010 ONCA 565.
Significantly, the insurer had refused to mediate on the basis that it was of the opinion that the plaintiff's injuries did not meet the threshold test under the Insurance Act. Also significant was the fact that the Court of Appeal said that the offer to settle made by the insurer prior to trial, although a low offer of just $17,500, was an acceptance by the insurer that there was a potential claim to litigate - and therefore mediate.
The consequence of this decision might be to limit offers to settle in cases where insurers would otherwise make a low offer to settle in order to avoid the costs of a trial, especially where threshold is an issue. The other consequence, of course, is that insurers now will have to undertake the expense of mediation even where there is little or no chance of reaching a settlement.
The facts of the case are: After examinations for discovery, plaintiff's counsel wrote counsel for the insurer asking if they could mediate the claim pursuant to s. 258.6 of the Insurance Act. The insurer ignored the first letter. Plaintiff's counsel wrote again. In both letters plaintiff's counsel referred to costs consequences following trial if the insurer failed to participate. The insurer then responded that it would not mediate because it did not think the plaintiff's injuries met threshold. A year later, the insurer made an offer to settle for $17,500 plus interest and costs. The plaintiff won the trial and plaintiff's counsel sought substantial indemnity costs against the insurer for the failure to mediate, which the trial judge refused.
The Court of Appeal, however, found that the insurer had failed to comply with its statutory obligation to mediate per s. 258.6. The appropriate costs consequences were a "significant remedial penalty" in the amount of $40,000 in addition to the costs already awarded by the trial judge for the usual partial indemnity costs award.
Significantly, the insurer had refused to mediate on the basis that it was of the opinion that the plaintiff's injuries did not meet the threshold test under the Insurance Act. Also significant was the fact that the Court of Appeal said that the offer to settle made by the insurer prior to trial, although a low offer of just $17,500, was an acceptance by the insurer that there was a potential claim to litigate - and therefore mediate.
The consequence of this decision might be to limit offers to settle in cases where insurers would otherwise make a low offer to settle in order to avoid the costs of a trial, especially where threshold is an issue. The other consequence, of course, is that insurers now will have to undertake the expense of mediation even where there is little or no chance of reaching a settlement.
The facts of the case are: After examinations for discovery, plaintiff's counsel wrote counsel for the insurer asking if they could mediate the claim pursuant to s. 258.6 of the Insurance Act. The insurer ignored the first letter. Plaintiff's counsel wrote again. In both letters plaintiff's counsel referred to costs consequences following trial if the insurer failed to participate. The insurer then responded that it would not mediate because it did not think the plaintiff's injuries met threshold. A year later, the insurer made an offer to settle for $17,500 plus interest and costs. The plaintiff won the trial and plaintiff's counsel sought substantial indemnity costs against the insurer for the failure to mediate, which the trial judge refused.
The Court of Appeal, however, found that the insurer had failed to comply with its statutory obligation to mediate per s. 258.6. The appropriate costs consequences were a "significant remedial penalty" in the amount of $40,000 in addition to the costs already awarded by the trial judge for the usual partial indemnity costs award.
September 1, 2010
Employee or independent contractor?
Ligocki v. Allianz Insurance Company of Canada (2010), 100 O.R. (3d) 624 (S.C.J.)
The issue on this motion was whether the plaintiff was an employee or an independent contractor for the purpose of calculating IRBs.
Prior to the motor vehicle accident the plaintiff worked as a personal support worker for an elderly man, Mr. Deluca. Although he had initially been employed by the Victorian Order of Nurses, when it discontinued services, the plaintiff entered into an oral agreement to continue working for Mr. Deluca. The plaintiff conducted himself as if he was an independent contractor by issuing invoices and identified himself as self-employed to the accident benefits adjuster.
The Court held that despite the plaintiff's self-identification as an independent contractor, the facts indicated he was an employee, since he did not provide supplies or equipment, reported to Deluca, and did not undertake any financial risk.
One would have thought that the clear, repeated assertion by the plaintiff that he was an independent contractor would have been determinative of the issue. This decision seems to bring increased uncertainty into this area. It remains to be seen whether the decision will be appealed.
The issue on this motion was whether the plaintiff was an employee or an independent contractor for the purpose of calculating IRBs.
Prior to the motor vehicle accident the plaintiff worked as a personal support worker for an elderly man, Mr. Deluca. Although he had initially been employed by the Victorian Order of Nurses, when it discontinued services, the plaintiff entered into an oral agreement to continue working for Mr. Deluca. The plaintiff conducted himself as if he was an independent contractor by issuing invoices and identified himself as self-employed to the accident benefits adjuster.
The Court held that despite the plaintiff's self-identification as an independent contractor, the facts indicated he was an employee, since he did not provide supplies or equipment, reported to Deluca, and did not undertake any financial risk.
One would have thought that the clear, repeated assertion by the plaintiff that he was an independent contractor would have been determinative of the issue. This decision seems to bring increased uncertainty into this area. It remains to be seen whether the decision will be appealed.
August 25, 2010
No obligation to seek clarification of a non-party witness
Arunasalam v. Guglietti Estate, [2010] O.J. No. 3303 (S.C.J.)
The question to be answered in this motion with respect to refusals on examination for discovery was this: when counsel provides a summary of the anticipated evidence of a witness, is counsel required to seek clarification or further information from that witness?
Master Short held that although counsel must provide a summary of the substance of the evidence of a non-party witness, that obligation does not extend to obtaining further particulars and clarification. If the non-party witness is unwilling to provide clarification or further information to counsel opposite, it may be appropriate to bring a motion under Rule 31.10 in order to compel discovery of the non-party.
The question to be answered in this motion with respect to refusals on examination for discovery was this: when counsel provides a summary of the anticipated evidence of a witness, is counsel required to seek clarification or further information from that witness?
Master Short held that although counsel must provide a summary of the substance of the evidence of a non-party witness, that obligation does not extend to obtaining further particulars and clarification. If the non-party witness is unwilling to provide clarification or further information to counsel opposite, it may be appropriate to bring a motion under Rule 31.10 in order to compel discovery of the non-party.
August 19, 2010
The Duty to Defend
Cadillac Fairview Corp v. Olympia Sanitation Products Inc., [2010] O.J. No. 3306 (S.C.J.)
In the context of slip and fall actions, there is often both an owner/occupier of a property as well as a company hired to maintain the premises. Frequently there is a dispute over whether the contract between the two entities requires the contractor to assume the defence of its principal.
In this decision, the main action arose out of an alleged slip and fall occurring at the Promenade Mall. Cadillac Fairview hired Olympia as part of a cleaning contract in which Olympia agreed to insure and indemnify Cadillac Fairview for any losses arising out of Olympia’s contractual responsibilities. The incident report completed after the fall described that the plaintiff had fallen over something and described the cause of the injury as a “trip and fall” as opposed to a “slip and fall”. Some of the allegations in the Statement of Claim involved allegations of improper design and disrepair of the accident location.
Justice DiTomaso held that Olympia was not required to assume the defence and indemnity of Cadillac Fairview. The Riocan case was distinguished in the circumstances as there were independent allegations of negligence beyond the scope of Olympia’s cleaning contract. In Riocan, the Court held that the true nature of the plaintiff’s allegations fell within the scope of the hold harmless clause, so the contractor was obliged to defend. Justice DiTomaso in this case was unable to determine one particular claim that fell within coverage captured the true essence of the action, and further, it was possible that the plaintiff was injured in a way that was totally unconnected to Olympia’s responsibilities.
This case shows the complicated nature of the duty to defend and indemnify. Cases are determined on the specific facts and allegations made in the Statement of Claim in addition to the contract between the parties. Generally, where there is some allegation of independent negligence plead by the plaintiff, the independent contractor will not be required to assume the defence and indemnify its principal.
In the context of slip and fall actions, there is often both an owner/occupier of a property as well as a company hired to maintain the premises. Frequently there is a dispute over whether the contract between the two entities requires the contractor to assume the defence of its principal.
In this decision, the main action arose out of an alleged slip and fall occurring at the Promenade Mall. Cadillac Fairview hired Olympia as part of a cleaning contract in which Olympia agreed to insure and indemnify Cadillac Fairview for any losses arising out of Olympia’s contractual responsibilities. The incident report completed after the fall described that the plaintiff had fallen over something and described the cause of the injury as a “trip and fall” as opposed to a “slip and fall”. Some of the allegations in the Statement of Claim involved allegations of improper design and disrepair of the accident location.
Justice DiTomaso held that Olympia was not required to assume the defence and indemnity of Cadillac Fairview. The Riocan case was distinguished in the circumstances as there were independent allegations of negligence beyond the scope of Olympia’s cleaning contract. In Riocan, the Court held that the true nature of the plaintiff’s allegations fell within the scope of the hold harmless clause, so the contractor was obliged to defend. Justice DiTomaso in this case was unable to determine one particular claim that fell within coverage captured the true essence of the action, and further, it was possible that the plaintiff was injured in a way that was totally unconnected to Olympia’s responsibilities.
This case shows the complicated nature of the duty to defend and indemnify. Cases are determined on the specific facts and allegations made in the Statement of Claim in addition to the contract between the parties. Generally, where there is some allegation of independent negligence plead by the plaintiff, the independent contractor will not be required to assume the defence and indemnify its principal.
August 4, 2010
Definition of "Struck by" or "Hit by" in Auto Insurance
The Court of Appeal for Ontario has decided that coverage under one's own policy for being "struck by" or "hit by" an unidentified automobile includes walking into an unnoticed steel pole protruding from a parked truck. Lewis v. Economical Insurance Group, [2010] O.J. No. 3158 (C.A.).
The facts are described as follows: "On a spring day in 2003, Bonnie Lewis walked out of a variety store and struck her head on a steel pole protruding from a truck parked the wrong way on the street in front of the store. The pole was unmarked, grey and nearly invisible. Ms. Lewis did not see the pole until she hit it. The pole struck her above her right eye near her temple. She fell to the ground, unconscious. She suffered a serious head injury, which has left her cognitively impaired."
Since the truck could not be identified, Ms. Lewis sued her own insurance company for damages for personal injuries. Both her automobile policy and the OPCF Family Protection Endorsement, which was additional insurance she had purchased, provided coverage for personal injuries resulting from an accident involving an unidentified or uninsured automobile. As Ms. Lewis was not an occupant of an automobile when she was injured, she was entitled to coverage only if she was "struck by" or "hit by" an unidentified automobile.
A motions judge concluded that Ms. Lewis was not "struck" or "hit by" the truck, or the pole that protruded from it, because the truck was not moving at the time. Instead, it was Ms. Lewis who struck or hit the pole.
The Court of Appeal concluded otherwise and finds that she is entitled to coverage.
Laskin J.A. added that "my interpretation of these words [struck or hit by] would not open the floodgates to injury claims by persons who walk into unidentified parked cars. This is a case about coverage, not liability or negligence. If the owner or driver of a parked car was not negligent, the claimant would have no legal entitlement to damages."
Whether the plaintiff is now entitled to damages "depends on her being able to prove that the unidentified owner or driver of the truck was negligent."
It seems that the Court is saying that if the plaintiff is not entitled to damages then it should be determined on the issue of negligence and not coverage. Coverage should be interpreted broadly whereas negligence must be proven strictly.
The facts are described as follows: "On a spring day in 2003, Bonnie Lewis walked out of a variety store and struck her head on a steel pole protruding from a truck parked the wrong way on the street in front of the store. The pole was unmarked, grey and nearly invisible. Ms. Lewis did not see the pole until she hit it. The pole struck her above her right eye near her temple. She fell to the ground, unconscious. She suffered a serious head injury, which has left her cognitively impaired."
Since the truck could not be identified, Ms. Lewis sued her own insurance company for damages for personal injuries. Both her automobile policy and the OPCF Family Protection Endorsement, which was additional insurance she had purchased, provided coverage for personal injuries resulting from an accident involving an unidentified or uninsured automobile. As Ms. Lewis was not an occupant of an automobile when she was injured, she was entitled to coverage only if she was "struck by" or "hit by" an unidentified automobile.
A motions judge concluded that Ms. Lewis was not "struck" or "hit by" the truck, or the pole that protruded from it, because the truck was not moving at the time. Instead, it was Ms. Lewis who struck or hit the pole.
The Court of Appeal concluded otherwise and finds that she is entitled to coverage.
Laskin J.A. added that "my interpretation of these words [struck or hit by] would not open the floodgates to injury claims by persons who walk into unidentified parked cars. This is a case about coverage, not liability or negligence. If the owner or driver of a parked car was not negligent, the claimant would have no legal entitlement to damages."
Whether the plaintiff is now entitled to damages "depends on her being able to prove that the unidentified owner or driver of the truck was negligent."
It seems that the Court is saying that if the plaintiff is not entitled to damages then it should be determined on the issue of negligence and not coverage. Coverage should be interpreted broadly whereas negligence must be proven strictly.
July 27, 2010
Unidentified Vehicle: The Corroborating Evidence Rule
Is a passenger in an insured's motor vehicle an "independent witness" who can corroborate the insured's evidence concerning the involvement of an unidentified motorist for the purposes of the OPCF 44R Family Protection Endorsement? Is the passenger an "independent witness" if the passenger has also sued the insurer under the unidentified coverage provisions and therefore has an interest in the outcome?
D.A. Wilson J. recently said yes to these questions in Pepe v. State Farm Mutual Automobile Insurance Co., [2010] O.J. No. 2138 (S.C.J.).
Sections 1.5(c) and 1.5(d)(i) of the OPCF 44R, known as the Family Protection Endorsement, read as follows:
(c) where an eligible claimant alleges that both the owner and driver of an automobile referred to in clause 1.5(b) cannot be determined, the eligible claimant's own evidence of the involvement of such automobile must be corroborated by other material evidence; and
(d) "other material evidence" for the purposes of this section means (i) independent witness evidence, other than evidence of a spouse ... or a dependent relative ...; or (ii) physical evidence indicating the involvement of an unidentified automobile..
Wilson J. found that: "It is clear that the intention of this section is to limit the ability of individuals to make claims against their OPCF 44R policies for claims involving unidentified vehicles unless there is independent evidence to corroborate the involvement of a vehicle whose driver or owner cannot be ascertained. Further, the individual who corroborates the evidence of the claimant cannot be the spouse or a dependant of the claimant." (para. 10)
In the instance before Wilson J., the independent witness was a passenger in the plaintiff's vehicle and a girlfriend at the time of the accident but not at the time of the motion. Wilson J. concluded that this witness did not fit into the narrow class of persons excluded, namely a spouse or relative, and therefore she was an independent witness who could provide corroborating evidence.
It would seem that allowing a passenger, who has also sued the insurer under the unidentified coverage provisions and therefore has an interest in the outcome, to be the witness required under the Endorsement, defeats the intent of having "independent" corroborating evidence. On the other hand, it seems a correct finding on a plain and narrowly construed interpretation of the Endorsement's wording.
D.A. Wilson J. recently said yes to these questions in Pepe v. State Farm Mutual Automobile Insurance Co., [2010] O.J. No. 2138 (S.C.J.).
Sections 1.5(c) and 1.5(d)(i) of the OPCF 44R, known as the Family Protection Endorsement, read as follows:
(c) where an eligible claimant alleges that both the owner and driver of an automobile referred to in clause 1.5(b) cannot be determined, the eligible claimant's own evidence of the involvement of such automobile must be corroborated by other material evidence; and
(d) "other material evidence" for the purposes of this section means (i) independent witness evidence, other than evidence of a spouse ... or a dependent relative ...; or (ii) physical evidence indicating the involvement of an unidentified automobile..
Wilson J. found that: "It is clear that the intention of this section is to limit the ability of individuals to make claims against their OPCF 44R policies for claims involving unidentified vehicles unless there is independent evidence to corroborate the involvement of a vehicle whose driver or owner cannot be ascertained. Further, the individual who corroborates the evidence of the claimant cannot be the spouse or a dependant of the claimant." (para. 10)
In the instance before Wilson J., the independent witness was a passenger in the plaintiff's vehicle and a girlfriend at the time of the accident but not at the time of the motion. Wilson J. concluded that this witness did not fit into the narrow class of persons excluded, namely a spouse or relative, and therefore she was an independent witness who could provide corroborating evidence.
It would seem that allowing a passenger, who has also sued the insurer under the unidentified coverage provisions and therefore has an interest in the outcome, to be the witness required under the Endorsement, defeats the intent of having "independent" corroborating evidence. On the other hand, it seems a correct finding on a plain and narrowly construed interpretation of the Endorsement's wording.
July 22, 2010
Are SABS assessors "experts"?
Those of you defending accident benefits actions may wish to review this case before your next discovery.
Babakar v. Brown (2010), 100 O.R. (3d) 191 (Div. Ct.)
The defendant insurer had the plaintiff assessed pursuant to s. 42 of the SABS to determine whether he continued to be entitled to benefits. Based on these reports, the insurer terminated benefits and the plaintiff brought an action against the insurer. During examination for discovery, the claims examiner refused to answer certain questions about the s. 42 reports on the basis that they constituted cross-examination of expert witnesses, beyond the permissible limits of r. 31.06(3).
The master ordered the questions answered and an appeal to the Superior Court was dismissed on the basis that the experts retained by the insurer were not "experts" within the meaning of r. 31.06(3).
The Divisional Court allowed the appeal. The experts were chosen by the insurer to help it make a determination under the SABS and as such, they were engaged by or on behalf of a party being examined in the action in relation to a matter in issue in the action. The discoverability of their evidence is therefore governed by r. 31.06(3).
Babakar v. Brown (2010), 100 O.R. (3d) 191 (Div. Ct.)
The defendant insurer had the plaintiff assessed pursuant to s. 42 of the SABS to determine whether he continued to be entitled to benefits. Based on these reports, the insurer terminated benefits and the plaintiff brought an action against the insurer. During examination for discovery, the claims examiner refused to answer certain questions about the s. 42 reports on the basis that they constituted cross-examination of expert witnesses, beyond the permissible limits of r. 31.06(3).
The master ordered the questions answered and an appeal to the Superior Court was dismissed on the basis that the experts retained by the insurer were not "experts" within the meaning of r. 31.06(3).
The Divisional Court allowed the appeal. The experts were chosen by the insurer to help it make a determination under the SABS and as such, they were engaged by or on behalf of a party being examined in the action in relation to a matter in issue in the action. The discoverability of their evidence is therefore governed by r. 31.06(3).
July 14, 2010
Discovery by Videoconference
Midland Resources Holdings Ltd. v. Sharif (2010), 99 O.R. (3d) 550 (S.C.J.).
In this case, the plaintiff was living in Moscow and had a medical condition and his physician recommended against lengthy airplane trips. He brought a motion seeking to be examined for discovery by videoconference.
Justice Newbould granted the motion and refused to follow a prior Master's decision that held that video conferencing should be used rarely. The Court held that given the high costs of modern litigation, videoconferencing should be encouraged. The Order was granted pursuant to r. 34.07(1)(f).
It seems that in modern litigation it is increasingly common for parties to be outside of Ontario. Videoconferencing can be useful in such cases to help decrease some of the costs in litigation, which accords with the new emphasis on proportionality and access to justice.
In this case, the plaintiff was living in Moscow and had a medical condition and his physician recommended against lengthy airplane trips. He brought a motion seeking to be examined for discovery by videoconference.
Justice Newbould granted the motion and refused to follow a prior Master's decision that held that video conferencing should be used rarely. The Court held that given the high costs of modern litigation, videoconferencing should be encouraged. The Order was granted pursuant to r. 34.07(1)(f).
It seems that in modern litigation it is increasingly common for parties to be outside of Ontario. Videoconferencing can be useful in such cases to help decrease some of the costs in litigation, which accords with the new emphasis on proportionality and access to justice.
July 7, 2010
Audiotaping Independent Medical Examinations
In Adams v. Cook (2010), 100 O.R. (3d) 1 (C.A.), the defendant sought an independent medical examination of the plaintiff by a specialist in physical medicine and rehabilitation. The plaintiff would consent only if the examination was audio recorded. In the initial motion, plaintiff's counsel swore an affidavit alleging there was a systemic bias by those conducting IMEs. He made no allegations against the specific specialist selected by the defendant. The motions judge refused to order the IME without audiotape and the Divisional Court dismissed the appeal. The defendant then appealed to the Court of Appeal.
The Court of Appeal allowed the appeal. In order to show that audio or video recording is necessary, there must be something more than an allegation of general bias among doctors who perform IMEs; there has to be something specific to the case.
The Court was invited to opine on whether there should be routine recording of IMEs in all cases; however, it declined to do so, preferring to leave this issue for the Rules Committee.
Independent medical examinations seem to be an area ripe for disputes between plaintiffs and defendants. The Court of Appeal's decision is one that may assist the defence in opposing requests to record the examination, although it seems that the Court of Appeal has left the door open for plaintiffs to argue for recording of IMEs in specific cases.
The Court of Appeal allowed the appeal. In order to show that audio or video recording is necessary, there must be something more than an allegation of general bias among doctors who perform IMEs; there has to be something specific to the case.
The Court was invited to opine on whether there should be routine recording of IMEs in all cases; however, it declined to do so, preferring to leave this issue for the Rules Committee.
Independent medical examinations seem to be an area ripe for disputes between plaintiffs and defendants. The Court of Appeal's decision is one that may assist the defence in opposing requests to record the examination, although it seems that the Court of Appeal has left the door open for plaintiffs to argue for recording of IMEs in specific cases.
June 23, 2010
More on Crinson v. Toronto, 2010 ONCA 44.
Two days ago I blogged on a comment left from an Indian lawyer to my blog of February 27, 2010.
That discussion revolved around the Ontario Court of Appeal's decision in Crinson v. Toronto (City), 2010 ONCA 44.
The case has received attention in an article by Stuart Huxley, legal counsel, City of Ottawa, in a case comment printed in the Municipal Liability Risk Management journal, (2009-10) 11 Mun. L.R. Mgt. (Volume 11, Number 4).
In that article, Mr. Huxley helpfully reviews the history of the Court of Appeal decision and noted that the trial judge had found that the plaintiff was in the hospital for five days after the trip and fall, which included surgery, and during that period was on morphine and Tylenol. The plaintiff was drowsy and "out of it". Following his discharge from the hospital, the plaintiff took Percocets for two weeks. Despite this medication, the trial judge held that the plaintiff was not so incapacitated that he was unable to arrange for the required notice to be given to the municipality. Thus the plaintiff's claim was held to be statute barred by the trial judge.
The Court of Appeal reversed. The Court of Appeal held that there was ample evidence to support "reasonable excuse".
Mr. Huxley concludes his article with the realistic comment that failture to give notice as required by the Municipal Act, 2001 months after an accident will require a municipality to consider whether to push the notice defence. Questions that municipalities will continue to face will be whether or how a municipality should defend such actions or whether they should just concede and pay.
That discussion revolved around the Ontario Court of Appeal's decision in Crinson v. Toronto (City), 2010 ONCA 44.
The case has received attention in an article by Stuart Huxley, legal counsel, City of Ottawa, in a case comment printed in the Municipal Liability Risk Management journal, (2009-10) 11 Mun. L.R. Mgt. (Volume 11, Number 4).
In that article, Mr. Huxley helpfully reviews the history of the Court of Appeal decision and noted that the trial judge had found that the plaintiff was in the hospital for five days after the trip and fall, which included surgery, and during that period was on morphine and Tylenol. The plaintiff was drowsy and "out of it". Following his discharge from the hospital, the plaintiff took Percocets for two weeks. Despite this medication, the trial judge held that the plaintiff was not so incapacitated that he was unable to arrange for the required notice to be given to the municipality. Thus the plaintiff's claim was held to be statute barred by the trial judge.
The Court of Appeal reversed. The Court of Appeal held that there was ample evidence to support "reasonable excuse".
Mr. Huxley concludes his article with the realistic comment that failture to give notice as required by the Municipal Act, 2001 months after an accident will require a municipality to consider whether to push the notice defence. Questions that municipalities will continue to face will be whether or how a municipality should defend such actions or whether they should just concede and pay.
June 21, 2010
Benefit of the Doubt has to be given to the Victim
It is not often we get comments on our blog. It is even rarer when we get a comment from someone who is outside Ontario, much less Canada. So it was good to read the comment from Ms Sindhu Yadav of Choir de Law Pvt. Ltd, India (and who I presume to be a colleague lawyer), to my February 27, 2010, blog on the Ontario Court of Appeal's decision in Crinson v. Toronto (City), 2010 ONCA 44.
The title I gave to that blog entry was "Ignorance of the Law can be a Reasonable Excuse", which perhaps showed my concern with the Court of Appeal's decision. However, the comment from Ms Sindhu Yadav of India was, "The decision of Court of Appeal is highly welcome. In such cases the maxim "Ignorance of law is no excuse" is defeated. Benefit of doubt has to be given to the victim."
That is an interesting comment. Please keep the comments coming...
The title I gave to that blog entry was "Ignorance of the Law can be a Reasonable Excuse", which perhaps showed my concern with the Court of Appeal's decision. However, the comment from Ms Sindhu Yadav of India was, "The decision of Court of Appeal is highly welcome. In such cases the maxim "Ignorance of law is no excuse" is defeated. Benefit of doubt has to be given to the victim."
That is an interesting comment. Please keep the comments coming...
June 16, 2010
Rule 31.05.01 - Extending the Seven Hour Discovery Rule
Those of you interested in the interpretation of the new rule 31.05.01, which provides a seven hour total limit on discovery, may wish to review Osprey Capital Partners v. Gennium Pharma Inc., [2010] O.J. No. 1721 (S.C.J).
Master Glustein granted leave to the plaintiff to exceed the seven hour limit and permitted it seven hours for each defendant.
Some of the factors considered were:
1. The pleadings claimed $1.5 million in damages;
2. A review of the pleadings revealed complex issues of fact and law; and
3. There would be unfairness if the defendants each had seven hours to examine the plaintiff (for a total of 21 hours) and the plaintiff was limited to seven, or approximately two hours for each defendant.
Master Glustein also held that it is not necessary for counsel to attempt examinations prior to bringing a motion to extend time. In addition, the Master did not agree that counsel must identify key documents and issues in the discovery as part of the discovery plan.
Master Glustein granted leave to the plaintiff to exceed the seven hour limit and permitted it seven hours for each defendant.
Some of the factors considered were:
1. The pleadings claimed $1.5 million in damages;
2. A review of the pleadings revealed complex issues of fact and law; and
3. There would be unfairness if the defendants each had seven hours to examine the plaintiff (for a total of 21 hours) and the plaintiff was limited to seven, or approximately two hours for each defendant.
Master Glustein also held that it is not necessary for counsel to attempt examinations prior to bringing a motion to extend time. In addition, the Master did not agree that counsel must identify key documents and issues in the discovery as part of the discovery plan.
June 12, 2010
If a City is going to fix a sidewalk, it has to do a good job
The Ontario Court of Appeal says that the City of Burlington was partly liable for a woman's broken leg because the City's sidewalk allowed for the pooling of liquid on the sidewalk which caused her to slip and fall. Cartner v. Burlington (City), 2010 ONCA 407.
The City had tried to fix the cement sidewalk by grinding down a trip ledge. In the process, the City reversed the drainage of water and liquids from the sidewalk. After the grinding of the sidewalk, water and liquids pooled in a corner of the sidewalk.
The Court of Appeal also said the correct test is the "but for" test, namely that "but for" the pooling of water caused by the reversed drainage, caused by the grinding down of the trip ledge, the plaintiff would not have fallen. The City should have replaced the concrete slab instead of grinding it down since this caused a greater or additional problem.
According to the Court of Appeal, the trial judge was correct in concluding that the neligence of the City was a "cause" and that it did not have to be the only "cause" of the plaintiff's injury.
I wonder if the "but for" test, however, was the correct test in this instance? It seems to me it could also be said that the accident would not have occurred "but for" the plaintiff walking along the sidewalk and not stepping over the pooled liquid, yet there is no mention in the judgment about contributory negligence. Doesn't this make the City an insurer for those who have trouble stepping over defects on its sidewalk? Is that expense the City taxpayers should have to bear?
The City had tried to fix the cement sidewalk by grinding down a trip ledge. In the process, the City reversed the drainage of water and liquids from the sidewalk. After the grinding of the sidewalk, water and liquids pooled in a corner of the sidewalk.
The Court of Appeal also said the correct test is the "but for" test, namely that "but for" the pooling of water caused by the reversed drainage, caused by the grinding down of the trip ledge, the plaintiff would not have fallen. The City should have replaced the concrete slab instead of grinding it down since this caused a greater or additional problem.
According to the Court of Appeal, the trial judge was correct in concluding that the neligence of the City was a "cause" and that it did not have to be the only "cause" of the plaintiff's injury.
I wonder if the "but for" test, however, was the correct test in this instance? It seems to me it could also be said that the accident would not have occurred "but for" the plaintiff walking along the sidewalk and not stepping over the pooled liquid, yet there is no mention in the judgment about contributory negligence. Doesn't this make the City an insurer for those who have trouble stepping over defects on its sidewalk? Is that expense the City taxpayers should have to bear?
June 9, 2010
Misfeasance in Public Office
St. Elizabeth Home Society v. Hamilton (City), [2010] O.J. No.1515 (C.A.)
This was an Appeal by the St. Elizabeth Home Society of the dismissal of its action against the City of Hamilton and the Regional Municipality of Hamilton Wentworth.
St. Elizabeth Home Society operated a retirement home in Hamilton. In early 1994, the City received letters alleging substandard care of residents at the home. These letters prompted a review of the Society’s practices by an independent consultant, who delivered a report in December 2004 strongly criticizing the health care practices and management style of the operators of the home. Shortly after the report was issued, the Municipality issued an Order to Comply against the Society alleging that it had violated a Municipal by-law with respect to admission of residents, nursing care, reports and records, and food. A City counselor leaked the Order to Comply to local newspapers, which in turn published many sensational stories about the home.
The primary issue in this appeal was whether the judge erred in dismissing the claim with respect to misfeasance in public office.
The trial judge held that there was no intention by Municipal employees to act beyond their powers and abuse their authority, there was no evidence that the defendants were aware their conduct was unlawful and likely to harm the plaintiff, and there was no knowledge by any of the defendants that the issuance of the Order to Comply would do anything other than benefit the plaintiff in improving health care to the residents. Their intent was not to harm the home but to assist it in its operation. The Court of Appeal confirmed the trial judge's decision.
In addition, the Court of Appeal held that the appeal with respect to negligence must fail because neither Municipality owed a duty of care to the Society; their duty was a public law duty to the residents of the home, not to the operator.
This case is useful in those defending Municipal and public authorities claims, in that it confirms that the duty is to the public at large, as well as the elements of misfeasance in public office.
This was an Appeal by the St. Elizabeth Home Society of the dismissal of its action against the City of Hamilton and the Regional Municipality of Hamilton Wentworth.
St. Elizabeth Home Society operated a retirement home in Hamilton. In early 1994, the City received letters alleging substandard care of residents at the home. These letters prompted a review of the Society’s practices by an independent consultant, who delivered a report in December 2004 strongly criticizing the health care practices and management style of the operators of the home. Shortly after the report was issued, the Municipality issued an Order to Comply against the Society alleging that it had violated a Municipal by-law with respect to admission of residents, nursing care, reports and records, and food. A City counselor leaked the Order to Comply to local newspapers, which in turn published many sensational stories about the home.
The primary issue in this appeal was whether the judge erred in dismissing the claim with respect to misfeasance in public office.
The trial judge held that there was no intention by Municipal employees to act beyond their powers and abuse their authority, there was no evidence that the defendants were aware their conduct was unlawful and likely to harm the plaintiff, and there was no knowledge by any of the defendants that the issuance of the Order to Comply would do anything other than benefit the plaintiff in improving health care to the residents. Their intent was not to harm the home but to assist it in its operation. The Court of Appeal confirmed the trial judge's decision.
In addition, the Court of Appeal held that the appeal with respect to negligence must fail because neither Municipality owed a duty of care to the Society; their duty was a public law duty to the residents of the home, not to the operator.
This case is useful in those defending Municipal and public authorities claims, in that it confirms that the duty is to the public at large, as well as the elements of misfeasance in public office.
June 2, 2010
Facebook in Litigation
Is the pendulum swinging back away from the use of Facebook in litigation?
In Schuster v. Royal & Sun Alliance Insurance Co. of Canada, [2009] O.J. No. 4518 (S.C.J.), the defendants sought an ex parte Order for preservation of the plaintiff's Facebook account, followed by a motion for production.
Justice Price refused to make a preservation Order, holding that the defendant had not shown that it would suffer irreparable harm if the Order was not granted. Justice Price assumed that if the plaintiff's Facebook page contained relevant documents it would have been listed in her Affidavit of Documents. With respect, given the relatively recent development of Facebook, I would suggest that many counsel simply do not consider whether their clients have Facebook accounts, and, if so, whether there are relevant documents to be produced. Justice Price held that the mere nature of Facebook as a social networking platform is not evidence that it contains relevant information.
Facebook motions have become a useful tool for defence counsel in many cases and courts were supportive of them in several decisions; however, this decision could signal that courts are no longer as willing to make orders for production as they had been in the past.
In Schuster v. Royal & Sun Alliance Insurance Co. of Canada, [2009] O.J. No. 4518 (S.C.J.), the defendants sought an ex parte Order for preservation of the plaintiff's Facebook account, followed by a motion for production.
Justice Price refused to make a preservation Order, holding that the defendant had not shown that it would suffer irreparable harm if the Order was not granted. Justice Price assumed that if the plaintiff's Facebook page contained relevant documents it would have been listed in her Affidavit of Documents. With respect, given the relatively recent development of Facebook, I would suggest that many counsel simply do not consider whether their clients have Facebook accounts, and, if so, whether there are relevant documents to be produced. Justice Price held that the mere nature of Facebook as a social networking platform is not evidence that it contains relevant information.
Facebook motions have become a useful tool for defence counsel in many cases and courts were supportive of them in several decisions; however, this decision could signal that courts are no longer as willing to make orders for production as they had been in the past.
May 28, 2010
Nova Scotia's cap on damages stands
You may recall our earlier post on the decision of the Nova Scotia Court of Appeal to uphold Nova Scotia's cap of $2,500 for general damages for "minor" injuries.
The Supreme Court has refused leave to appeal, so the cap remains.
The decision is MacDonald v. Attorney General of Nova Scotia.
The Supreme Court has refused leave to appeal, so the cap remains.
The decision is MacDonald v. Attorney General of Nova Scotia.
May 26, 2010
Changes to the Occupational Health and Safety Act
On July 1st, 2010, the Occupational Health and Safety Act will be amended. The Act can be found on the E-Laws website at http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90o01_e.htm.
The changes are primarily directed towards workplace violence and harassment prevention and require employers to prepare policies with respect to workplace violence and harassment and review the policies.
Each employer may wish to review the new changes to ensure compliance.
The changes are primarily directed towards workplace violence and harassment prevention and require employers to prepare policies with respect to workplace violence and harassment and review the policies.
Each employer may wish to review the new changes to ensure compliance.
May 19, 2010
Institutional Liability for Sexual Abuse
Reference Re: Broome v. Prince Edward Island, [2010] S.C.C. 11
The Supreme Court of Canada recently commented on a variety of issues relating to whether an institution is liable for historical sexual abuse.
In this case, the plaintiffs alleged physical and sexual abuse as children while they resided in a privately owned and managed children’s home. The court considered 4 issues:
1. Did the province owe a duty of care by virtue of the common law, its statutory authority and responsibility, or the doctrine of parens patriae?
2. Did the province owe a non-delegable duty?
3. Was the province vicariously liable for the acts or omissions of the trustees, staff or volunteers working in the home?
4. Did the province owe a fiduciary duty to the residents in the home?
The court held that there was not sufficient proximity to impose a duty of care. Although the governing legislation set out that the director shall “inspect or direct and supervise the inspection of any institution established for the care and protection of children or place where a child is placed pursuant to the provisions of this act”, this was insufficient to impose a duty of care. In addition, the mere fact that the province provided some funding indirectly in the form of grants was not enough to create a sufficient relationship of proximity between the province and the children.
The court also held that the province did not owe a non-delegable duty of care to the residents of the home. The home was not a children’s aide society, the children were not foster children or wards of the province, and the legislation created no role for the province in the operation of the home or for the care of the residents.
In terms of vicarious liability, the court rejected the plaintiffs' submission that the province exercised sufficient control over the home through legislative authority and statutory duties to justify the imposition of vicarious liability. The court noted that legislative authority is not enough to impose vicarious liability as if it were, “a province would be vicariously liable for every act committed in a field within its legislative authority”.
Finally, the court held that there was no fiduciary duty owed by the province to the children as there was no evidentiary basis to support an inference that the province directed or had the authority to direct the operation of the home. There were no facts that would have given rise to a fiduciary relationship.
This decision, when read in conjunction with decisions such as KLB v. British Columbia, [2003] 2 S.C.R. 403, is important in the defence of institutions for cases involving sexual abuse. It appears from this decision that something more than just legislation, such as a direct role in supervising children, is required in order to impose liability.
The Supreme Court of Canada recently commented on a variety of issues relating to whether an institution is liable for historical sexual abuse.
In this case, the plaintiffs alleged physical and sexual abuse as children while they resided in a privately owned and managed children’s home. The court considered 4 issues:
1. Did the province owe a duty of care by virtue of the common law, its statutory authority and responsibility, or the doctrine of parens patriae?
2. Did the province owe a non-delegable duty?
3. Was the province vicariously liable for the acts or omissions of the trustees, staff or volunteers working in the home?
4. Did the province owe a fiduciary duty to the residents in the home?
The court held that there was not sufficient proximity to impose a duty of care. Although the governing legislation set out that the director shall “inspect or direct and supervise the inspection of any institution established for the care and protection of children or place where a child is placed pursuant to the provisions of this act”, this was insufficient to impose a duty of care. In addition, the mere fact that the province provided some funding indirectly in the form of grants was not enough to create a sufficient relationship of proximity between the province and the children.
The court also held that the province did not owe a non-delegable duty of care to the residents of the home. The home was not a children’s aide society, the children were not foster children or wards of the province, and the legislation created no role for the province in the operation of the home or for the care of the residents.
In terms of vicarious liability, the court rejected the plaintiffs' submission that the province exercised sufficient control over the home through legislative authority and statutory duties to justify the imposition of vicarious liability. The court noted that legislative authority is not enough to impose vicarious liability as if it were, “a province would be vicariously liable for every act committed in a field within its legislative authority”.
Finally, the court held that there was no fiduciary duty owed by the province to the children as there was no evidentiary basis to support an inference that the province directed or had the authority to direct the operation of the home. There were no facts that would have given rise to a fiduciary relationship.
This decision, when read in conjunction with decisions such as KLB v. British Columbia, [2003] 2 S.C.R. 403, is important in the defence of institutions for cases involving sexual abuse. It appears from this decision that something more than just legislation, such as a direct role in supervising children, is required in order to impose liability.
May 10, 2010
The Duty to Defend in a Homeowner's Policy
McKinnon J. of the Ontario Superior Court of Justice recently released a decision arising from a Rule 21 motion for determination of a question of law, namely whether an insurer owes a duty to defend homeowners arising out of a homeowner's insurance policy. The claim against the homeowners arose after they sold their house. The purchasers alleged misrepresentation on the part of the homeowners for failing to disclose the condition of the property. Poplawski v. McGrimmon, [2010] O.J. No. 33.
What I found interesting in this decision is the very helpful overview of the law on an insurer's duty to defend. Here are a few paragraphs from this overview:
There is a three step process to determine whether an insurer has a duty to defend its insured:
(a) Are the plaintiff's legal allegations properly pleaded?
(b) Are any claims entirely derivative in nature?
(c) Do any of the properly, pleaded non-derivative claims potentially trigger the insurer's duty to defend?
In considering whether a plaintiff's allegations are properly pleaded, courts are not bound by the legal labels chosen by the plaintiff. 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 merit: the court need only decide, based on the pleadings, the true nature of the claims. A plaintiff cannot change negligence into an intentional tort simply through the choice of words.
In considering whether any of the claims potentially trigger the insurer's duty to defend, where the allegations of negligence constitute a separate tort and are not an attempt to "dress" intentional conduct as negligence, the insurer will be under a duty to defend: see Godonoaga (Litigation guardian of) v. Khatambakhsh, [2000] O.J. No. 2172 (C.A.) at paras. 28 and 32.
If there is any uncertainty as to whether a claim falls within the applicant's policy coverage, the uncertainty must be resolved in favour of the insured: see Co-Operators General Insurance Co. v. Murray, [2007] O.J. No. 2329 (S.C.J.) at para. 6.
What I found interesting in this decision is the very helpful overview of the law on an insurer's duty to defend. Here are a few paragraphs from this overview:
There is a three step process to determine whether an insurer has a duty to defend its insured:
(a) Are the plaintiff's legal allegations properly pleaded?
(b) Are any claims entirely derivative in nature?
(c) Do any of the properly, pleaded non-derivative claims potentially trigger the insurer's duty to defend?
In considering whether a plaintiff's allegations are properly pleaded, courts are not bound by the legal labels chosen by the plaintiff. 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 merit: the court need only decide, based on the pleadings, the true nature of the claims. A plaintiff cannot change negligence into an intentional tort simply through the choice of words.
In considering whether any of the claims potentially trigger the insurer's duty to defend, where the allegations of negligence constitute a separate tort and are not an attempt to "dress" intentional conduct as negligence, the insurer will be under a duty to defend: see Godonoaga (Litigation guardian of) v. Khatambakhsh, [2000] O.J. No. 2172 (C.A.) at paras. 28 and 32.
If there is any uncertainty as to whether a claim falls within the applicant's policy coverage, the uncertainty must be resolved in favour of the insured: see Co-Operators General Insurance Co. v. Murray, [2007] O.J. No. 2329 (S.C.J.) at para. 6.
May 3, 2010
7 Hour Discovery Rule Interpreted
Justice Templeton has recently addressed the new so-called "7 Hour Rule" that limits examinations for discovery, J. & P. Leveque Bros. v. Ontario , 2010 ONSC 2312.
The issue on the motion was whether leave should be granted to the plaintiff to conduct an examination for discovery of the defendants for a period of time in excess of seven hours.
At paragraph 16 of her decision, Templeton J. writes: The interests of justice do not require that the concept of effective representation trump the concept of cost-efficient and/or expeditious justice or vice versa; but they do require that these factors be balanced both jointly and severally by all participants in the process.
She also adds at paragraph 20: I am also of the view that in circumstances in which the time limit agreed upon in the Discovery Plan has expired and counsel is at a crucial point in his/her examination on an issue central or germane to the case, flexibility ought to be brought to bear and that further time to a maximum of one hour to continue and conclude the examination would not be unreasonable in the circumstances.
At a paragraph 21: In cases involving multiple parties, I would expect the excess of one hour to be deducted from the time available for that same party to examine another party to the litigation. In other words, to ensure that effective and cost-efficient justice is realized, counsel must adhere to their agreement with respect to the total length of the examinations but where there is more than one party, a leeway of one hour past the allotted time for the examination of one of the parties would not be unreasonable provided it is recovered from the examination of another party. This
flexibility allows counsel to be effective and to prioritize but at the same time cost-efficient in
the overall process.
In conclusion she granted the plaintiff 19 hours to conduct the examination for discovery since it was a multi-party action involving a number of different issues.
The issue on the motion was whether leave should be granted to the plaintiff to conduct an examination for discovery of the defendants for a period of time in excess of seven hours.
At paragraph 16 of her decision, Templeton J. writes: The interests of justice do not require that the concept of effective representation trump the concept of cost-efficient and/or expeditious justice or vice versa; but they do require that these factors be balanced both jointly and severally by all participants in the process.
She also adds at paragraph 20: I am also of the view that in circumstances in which the time limit agreed upon in the Discovery Plan has expired and counsel is at a crucial point in his/her examination on an issue central or germane to the case, flexibility ought to be brought to bear and that further time to a maximum of one hour to continue and conclude the examination would not be unreasonable in the circumstances.
At a paragraph 21: In cases involving multiple parties, I would expect the excess of one hour to be deducted from the time available for that same party to examine another party to the litigation. In other words, to ensure that effective and cost-efficient justice is realized, counsel must adhere to their agreement with respect to the total length of the examinations but where there is more than one party, a leeway of one hour past the allotted time for the examination of one of the parties would not be unreasonable provided it is recovered from the examination of another party. This
flexibility allows counsel to be effective and to prioritize but at the same time cost-efficient in
the overall process.
In conclusion she granted the plaintiff 19 hours to conduct the examination for discovery since it was a multi-party action involving a number of different issues.
April 21, 2010
Court Appeal Rules Summary Judgment is not available in Small Claims Court
Van de Vrande vs. Butkowsky, [2010] O.J. No. 1239 (C.A.)
The Court of Appeal has held that summary judgment is not available in Small Claims Court, clarifying an area where there were two separate lines of case law.
In this case, the defendant was retained to perform an assessment in the context of a custody dispute between the plaintiff and his spouse. The plaintiff alleged that instead of simply conducting and submitting an assessment, the defendant took on an additional role of mediator in the dispute. The defendant brought a motion seeking summary judgment and the court granted the motion pursuant to Rules 1.03 (2) and 12.02 of the Small Claims Court Rules, on the basis that in his capacity as a court appointed assessor, the defendant was immune from suit pursuant to the doctrine of expert witness immunity. The deputy judge also found that the action had been commenced outside of the applicable limitation period.
The Court of Appeal held that the absence of a summary judgment procedure in the Small Claims Court Rule is not a gap but rather a deliberate omission. It is not up to the court to read in such provision, since Rule 12.02 specifically addresses the ability to bring a motion similar to that contemplated by Rules 20, 21 & 76 of Rules of Civil Procedure. The court held that Rule 12 is similar to a Rule 21 motion, although it is worded more broadly and does not have the same prohibition on filing affidavit evidence. It involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be inflammatory, a waste of time or a nuisance.
Although the court has now clarified that summary judgment is not available in Small Claims Court, Rule 12 remains a valuable tool that can assist in disposing of cases that are without merit without the need to progress to a full blown trial.
The Court of Appeal has held that summary judgment is not available in Small Claims Court, clarifying an area where there were two separate lines of case law.
In this case, the defendant was retained to perform an assessment in the context of a custody dispute between the plaintiff and his spouse. The plaintiff alleged that instead of simply conducting and submitting an assessment, the defendant took on an additional role of mediator in the dispute. The defendant brought a motion seeking summary judgment and the court granted the motion pursuant to Rules 1.03 (2) and 12.02 of the Small Claims Court Rules, on the basis that in his capacity as a court appointed assessor, the defendant was immune from suit pursuant to the doctrine of expert witness immunity. The deputy judge also found that the action had been commenced outside of the applicable limitation period.
The Court of Appeal held that the absence of a summary judgment procedure in the Small Claims Court Rule is not a gap but rather a deliberate omission. It is not up to the court to read in such provision, since Rule 12.02 specifically addresses the ability to bring a motion similar to that contemplated by Rules 20, 21 & 76 of Rules of Civil Procedure. The court held that Rule 12 is similar to a Rule 21 motion, although it is worded more broadly and does not have the same prohibition on filing affidavit evidence. It involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be inflammatory, a waste of time or a nuisance.
Although the court has now clarified that summary judgment is not available in Small Claims Court, Rule 12 remains a valuable tool that can assist in disposing of cases that are without merit without the need to progress to a full blown trial.
April 15, 2010
Amendments to MMS
Final comment from Jennifer Stirton on the new Ontario Municipal Maintenance Standards:
7. Inspection for Sidewalk Discontinuity
The MMS now require annual inspections of sidewalks to check for surface discontinuities. There was no previous annual inspection requirement. In addition, municipalities are now required to treat sidewalk surface discontinuities that exceed two centimetres within 14 days after becoming aware of the fact. The constructive knowledge provision discussed above will also apply. Treating a surface discontinuity on a sidewalk involves taking reasonable measures to protect users of the sidewalk from it, including permanent or temporary repairs, alerting users’ attention to it or preventing access to the area of discontinuity.
7. Inspection for Sidewalk Discontinuity
The MMS now require annual inspections of sidewalks to check for surface discontinuities. There was no previous annual inspection requirement. In addition, municipalities are now required to treat sidewalk surface discontinuities that exceed two centimetres within 14 days after becoming aware of the fact. The constructive knowledge provision discussed above will also apply. Treating a surface discontinuity on a sidewalk involves taking reasonable measures to protect users of the sidewalk from it, including permanent or temporary repairs, alerting users’ attention to it or preventing access to the area of discontinuity.
April 13, 2010
Amendments to MMS
More from Jennifer Stirton on the new Municipal Maintenance Standards:
6. Expanded Sign Inspections
The MMS previously required road sign repairs where signs were illegible, improperly oriented or missing. There is now an additional requirement to repair road signs that are obscured. There is also a new requirement to conduct annual inspections of road signs to ensure that they meet the retro-reflectivity requirements of the Ontario Traffic Manual.
6. Expanded Sign Inspections
The MMS previously required road sign repairs where signs were illegible, improperly oriented or missing. There is now an additional requirement to repair road signs that are obscured. There is also a new requirement to conduct annual inspections of road signs to ensure that they meet the retro-reflectivity requirements of the Ontario Traffic Manual.
April 8, 2010
Amendments to MMS
More comments on the new Minimum Maintenance Standards, by Jennifer Stirton.
4. Slush Included in Snow Accumulation
The MMS have also been criticized for failing to address slushy road conditions.[1] The MMS now provide that snow accumulation on a road includes new fallen snow, wind-blown snow and slush. Snow clearing standards are triggered when snow accumulation reaches a prescribed depth.
[1] See Thornhill (Litigation Guardian of) v. Shadid, [2008] O.J. No. 372 at paras. 94-97 (S.C.J.). Note that although it was argued by counsel, the trial judge did not agree that the failure to address slush in the MMS was a gap in the regulation.
5. Annual Inspection of Luminaires
The MMS now provide for annual inspections of all luminaires to ensure that they are functioning. There was no previous inspection requirement.
4. Slush Included in Snow Accumulation
The MMS have also been criticized for failing to address slushy road conditions.[1] The MMS now provide that snow accumulation on a road includes new fallen snow, wind-blown snow and slush. Snow clearing standards are triggered when snow accumulation reaches a prescribed depth.
[1] See Thornhill (Litigation Guardian of) v. Shadid, [2008] O.J. No. 372 at paras. 94-97 (S.C.J.). Note that although it was argued by counsel, the trial judge did not agree that the failure to address slush in the MMS was a gap in the regulation.
5. Annual Inspection of Luminaires
The MMS now provide for annual inspections of all luminaires to ensure that they are functioning. There was no previous inspection requirement.
April 6, 2010
Amendments to MMS
More commentary on the recent amendments to the MMS, by Jennifer Stirton.
3. Additional Winter Patrolling Requirements
One of the criticisms of the MMS was that the patrolling requirements were inadequate to respond to winter road conditions.[1] The MMS now provide that during the winter maintenance season, municipalities must conduct the routine patrols that were previously required but must also patrol highways that are representative of its highways, as necessary, for snow and ice conditions. The standard also allows patrolling to be done by patrollers or by winter maintenance operators. As neither “representative” nor “as necessary” are defined terms and, we expect to see claims challenging municipal decisions about representative highways and necessary patrol frequencies.
[1] See Thornhill (Litigation Guardian of) v. Shadid, [2008] O.J. No. 372 at paras. 98-103 (S.C.J.).
3. Additional Winter Patrolling Requirements
One of the criticisms of the MMS was that the patrolling requirements were inadequate to respond to winter road conditions.[1] The MMS now provide that during the winter maintenance season, municipalities must conduct the routine patrols that were previously required but must also patrol highways that are representative of its highways, as necessary, for snow and ice conditions. The standard also allows patrolling to be done by patrollers or by winter maintenance operators. As neither “representative” nor “as necessary” are defined terms and, we expect to see claims challenging municipal decisions about representative highways and necessary patrol frequencies.
[1] See Thornhill (Litigation Guardian of) v. Shadid, [2008] O.J. No. 372 at paras. 98-103 (S.C.J.).
April 1, 2010
Amendments to MMS
More commentary on the recent amendments to the MMS, by Jennifer Stirton.
2. Application of MMS Not Restricted to Motor Vehicles
The MMS previously provided that they applied only in respect of motor vehicles using highways. This provision has been repealed, which suggests that the MMS now apply to pedestrians and bicycles using highways. This may be a response to recent case law which held that where roads are kept in a reasonable state of repair for vehicular traffic, which can include MMS compliance, a municipality may not be liable to pedestrians injured while walking on the road surface. Holmes v. Kingston (City), [2009] O.J. No. 1838 (S.C.J.).
2. Application of MMS Not Restricted to Motor Vehicles
The MMS previously provided that they applied only in respect of motor vehicles using highways. This provision has been repealed, which suggests that the MMS now apply to pedestrians and bicycles using highways. This may be a response to recent case law which held that where roads are kept in a reasonable state of repair for vehicular traffic, which can include MMS compliance, a municipality may not be liable to pedestrians injured while walking on the road surface. Holmes v. Kingston (City), [2009] O.J. No. 1838 (S.C.J.).
March 31, 2010
Amendments to the Municipal Minimum Maintenance Standards
The Minimum Maintenance Standards under the Municipal Act, 2001 were amended by Ontario Regulation 23/10, which came into effect on February 18, 2010. Several of the amendments are significant and will require municipalities to review their maintenance practices to ensure that the standards are met.
Over the next several blog entries, we will provide comments on the most significant changes to the Minimum Maintenance Standards. These comments were authored by Jennifer Stirton of our office.
Here is the first:
1. Constructive Knowledge of Facts
Many maintenance requirements in the MMS apply when a municipality becomes aware of a particular fact, such as a minimum snow accumulation, icy road conditions or a missing road sign. The MMS now provide that a municipality is deemed to be aware of a fact if the circumstances are such that the municipality ought reasonably to be aware of the fact.
Over the next several blog entries, we will provide comments on the most significant changes to the Minimum Maintenance Standards. These comments were authored by Jennifer Stirton of our office.
Here is the first:
1. Constructive Knowledge of Facts
Many maintenance requirements in the MMS apply when a municipality becomes aware of a particular fact, such as a minimum snow accumulation, icy road conditions or a missing road sign. The MMS now provide that a municipality is deemed to be aware of a fact if the circumstances are such that the municipality ought reasonably to be aware of the fact.
March 29, 2010
Court to use a contextual approach in deciding whether to set aside a dismissal order
Finlay v. Van Paassen 2010 ONCA 204 (C.A.)
In this motor vehicle accident which occurred in October 2003, the Statement of Claim was issued in October 2004 and pleadings and discoveries were completed by September 2005. In January 2007 the registrar issued a Status Notice indicating that the action would be dismissed unless it was set down for trial within 90 days. Unfortunately, the Status Notice was not sent to the plaintiff. On April 30, 2007, unbeknownst to the plaintiff, the registrar issued an Order dismissing the action for delay. Plaintiff’s counsel first obtained a copy of the registrar’s Order in mid May 2007; however, no action was taken to set aside the Order until 2009.
The motion’s judge refused to set aside the dismissal Order, using the 4 factors cited by the Court of Appeal in Marche D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores:
1. Explanation of the litigation delay;
2. Inadvertence in missing the deadline;
3. The motion is brought promptly;
4. No prejudice to the defendant.
For the motions judge, the third factor was decisive. He held that a delay of two years in bringing the motion was not an acceptable way of dealing with the circumstances.
The Court of Appeal held that the judge erred in taking two rigid an approach to the criteria. Instead, the Court should use a contextual approach in which the Court weighs all relevant considerations to determine a just result. The Court of Appeal allowed the appeal and set aside the registrar’s Order.
This decision appears to make it very difficult for defence counsel to succeed in opposing a motion to set aside a registrar’s dismissal Order. The Court is concerned with not allowing an innocent client to suffer the loss of the right to proceed by reason of the inadvertence of his/her solicitor.
In this motor vehicle accident which occurred in October 2003, the Statement of Claim was issued in October 2004 and pleadings and discoveries were completed by September 2005. In January 2007 the registrar issued a Status Notice indicating that the action would be dismissed unless it was set down for trial within 90 days. Unfortunately, the Status Notice was not sent to the plaintiff. On April 30, 2007, unbeknownst to the plaintiff, the registrar issued an Order dismissing the action for delay. Plaintiff’s counsel first obtained a copy of the registrar’s Order in mid May 2007; however, no action was taken to set aside the Order until 2009.
The motion’s judge refused to set aside the dismissal Order, using the 4 factors cited by the Court of Appeal in Marche D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores:
1. Explanation of the litigation delay;
2. Inadvertence in missing the deadline;
3. The motion is brought promptly;
4. No prejudice to the defendant.
For the motions judge, the third factor was decisive. He held that a delay of two years in bringing the motion was not an acceptable way of dealing with the circumstances.
The Court of Appeal held that the judge erred in taking two rigid an approach to the criteria. Instead, the Court should use a contextual approach in which the Court weighs all relevant considerations to determine a just result. The Court of Appeal allowed the appeal and set aside the registrar’s Order.
This decision appears to make it very difficult for defence counsel to succeed in opposing a motion to set aside a registrar’s dismissal Order. The Court is concerned with not allowing an innocent client to suffer the loss of the right to proceed by reason of the inadvertence of his/her solicitor.
March 23, 2010
Graham v. Toronto, [2009] O.J. No. 4633
This is a decision of A. Sosna J. of the Ontario Superior Court of Justice.
I think this is an interesting decision because the judge dismissed the claim against the City of Toronto even though the plaintiff had tripped and fallen over a "metal frame" left lying in the middle of the sidewalk. The claim was dismissed because the City had good record keeping which showed that it had inspected the highway (including the sidewalk) just 8 hours before the trip and fall. Therefore the City had met the standard of care required of it.
Facts: A claimant tripped and fell after stepping into the interior of a metal frame lying on the sidewalk. Apparently he saw the metal frame, stepped into it and while exiting, caught his left foot on the frame. As a result, he lost his balance and fell, suffering two broken bones in his left arm. A metal rod had to be inserted into his arm.
The Municipal Act, 2001, s. 44, governs liability. It provides that a municipality is liable for all damages sustained for failing to keep highways (which includes sidewalks) in a state of repair that is reasonable in the circumstances. It also includes a defence that a municipality is not liable if it did not know and could not reasonably have been expected to have known about the state or repair of the highway.
The City provided evidence that an inspection of the highway, including the sidewalk, had taken place approximately eight hours before the trip and fall. The City employee who conducted the inspection says that he would have immediately removed the metal frame had it been noticed. Further, there was no record of any complaint or notice given to the City about the metal frame on the sidewalk.
The trial judge held that it is a question of fact in each case whether a condition of non‑repair or hazard exists and if so, whether the municipal authorities’ response is reasonable, timely and properly executed. The judge held that the inspector had not observed the rectangular metal frame lying on the sidewalk and the accuracy and reliability of his observations were not undermined or negated during cross-examination. Therefore, despite the “tragic and unfortunate injuries to the plaintiff”, the defendant met its evidentiary burden of establishing that it had met the requirements of the Municipal Act, 2001, and as such should not be held to a standard of perfection.
The trial judge then dismissed the plaintiff’s claim.
The trial judge went on to assess damages at $50,000.00 and interestingly would have assessed contributory negligence at 50%.
I think this is an interesting decision because the judge dismissed the claim against the City of Toronto even though the plaintiff had tripped and fallen over a "metal frame" left lying in the middle of the sidewalk. The claim was dismissed because the City had good record keeping which showed that it had inspected the highway (including the sidewalk) just 8 hours before the trip and fall. Therefore the City had met the standard of care required of it.
Facts: A claimant tripped and fell after stepping into the interior of a metal frame lying on the sidewalk. Apparently he saw the metal frame, stepped into it and while exiting, caught his left foot on the frame. As a result, he lost his balance and fell, suffering two broken bones in his left arm. A metal rod had to be inserted into his arm.
The Municipal Act, 2001, s. 44, governs liability. It provides that a municipality is liable for all damages sustained for failing to keep highways (which includes sidewalks) in a state of repair that is reasonable in the circumstances. It also includes a defence that a municipality is not liable if it did not know and could not reasonably have been expected to have known about the state or repair of the highway.
The City provided evidence that an inspection of the highway, including the sidewalk, had taken place approximately eight hours before the trip and fall. The City employee who conducted the inspection says that he would have immediately removed the metal frame had it been noticed. Further, there was no record of any complaint or notice given to the City about the metal frame on the sidewalk.
The trial judge held that it is a question of fact in each case whether a condition of non‑repair or hazard exists and if so, whether the municipal authorities’ response is reasonable, timely and properly executed. The judge held that the inspector had not observed the rectangular metal frame lying on the sidewalk and the accuracy and reliability of his observations were not undermined or negated during cross-examination. Therefore, despite the “tragic and unfortunate injuries to the plaintiff”, the defendant met its evidentiary burden of establishing that it had met the requirements of the Municipal Act, 2001, and as such should not be held to a standard of perfection.
The trial judge then dismissed the plaintiff’s claim.
The trial judge went on to assess damages at $50,000.00 and interestingly would have assessed contributory negligence at 50%.
March 16, 2010
Court rejects argument deductible does not apply to awards of exactly $100,000
Van Winckle v. Siodlowski, [2009] O.J. No. 4807 (S.C.J.).
In this motor vehicle accident case, the jury awarded the plaintiff exactly $100,000 in non-pecuniary general damages. The plaintiff made the creative argument that the deductible should not apply where the award is exactly $100,000. Section 267.5(8) provides the deductible does not apply where the amount of non-pecuniary general damages "would exceed $100,000".
The Court held that "exceed" means greater than, not greater than or equal to. The deductible applied.
The decision makes sense. If the legislative had meant "greater than or equal to" $100,000, it would have said so.
In this motor vehicle accident case, the jury awarded the plaintiff exactly $100,000 in non-pecuniary general damages. The plaintiff made the creative argument that the deductible should not apply where the award is exactly $100,000. Section 267.5(8) provides the deductible does not apply where the amount of non-pecuniary general damages "would exceed $100,000".
The Court held that "exceed" means greater than, not greater than or equal to. The deductible applied.
The decision makes sense. If the legislative had meant "greater than or equal to" $100,000, it would have said so.
March 9, 2010
SCC: good review on law of negligence
The Supreme Court of Canada has recently released unanimous reasons for judgment written by Cromwell J., Fullowka and Pinkerton’s of Canada Limited, 2010 SCC 5.
I bring this case to your attention as a helpful overview on the law of negligence in Canada.
A strike at a mine near Yellowknife in 1992 degenerated into violence when the mine decided to continue operating the mine during the strike with replacement workers. Several security guards were attacked and some striking miners set off several explosions. One striking miner planted an explosive device in the mine and a car carrying nine miners triggered this set trip wire killing them all in the explosion. The miner survivors sued the mine, the security company hired to protect the mine during the strike and the Northwest Territorial Government. They also sued the local and national union for failing to control the striking miners and for insighting the violence.
The Supreme Court of Canada very helpfully reviews the law on duty of care, standard of care, proximity and other elements of the tort of negligence. The court held that the trial judge had been correct in finding that the murdered miners were owed a duty of care but errored in finding that the requisite standard of care had not been met. Justice Cromwell held that to the extent that the judge had required the security company to ensure that the entrances were properly guarded to avoid all access to the mine, he had imposed an absolute duty on the security company and not a duty of reasonable care.
The Supreme Court of Canada also held that the trial judge had applied the wrong legal test for causation. The correct test is the “but for” test and that this case did not fall into the class of exceptional situations in which the test for causation should be relaxed to the “material contribution” test.
All in all this is a good read for the review of negligence principles including duty and standard of care, foreseeability, proximity and residual policy considerations.
I bring this case to your attention as a helpful overview on the law of negligence in Canada.
A strike at a mine near Yellowknife in 1992 degenerated into violence when the mine decided to continue operating the mine during the strike with replacement workers. Several security guards were attacked and some striking miners set off several explosions. One striking miner planted an explosive device in the mine and a car carrying nine miners triggered this set trip wire killing them all in the explosion. The miner survivors sued the mine, the security company hired to protect the mine during the strike and the Northwest Territorial Government. They also sued the local and national union for failing to control the striking miners and for insighting the violence.
The Supreme Court of Canada very helpfully reviews the law on duty of care, standard of care, proximity and other elements of the tort of negligence. The court held that the trial judge had been correct in finding that the murdered miners were owed a duty of care but errored in finding that the requisite standard of care had not been met. Justice Cromwell held that to the extent that the judge had required the security company to ensure that the entrances were properly guarded to avoid all access to the mine, he had imposed an absolute duty on the security company and not a duty of reasonable care.
The Supreme Court of Canada also held that the trial judge had applied the wrong legal test for causation. The correct test is the “but for” test and that this case did not fall into the class of exceptional situations in which the test for causation should be relaxed to the “material contribution” test.
All in all this is a good read for the review of negligence principles including duty and standard of care, foreseeability, proximity and residual policy considerations.
March 6, 2010
New SABS Regulations Available
The new Statutory Accident Benefits regulations are now posted on e-laws. They are effective September 1, 2010.
You can find them on the e-laws website at:
http://www.search.e-laws.gov.on.ca/en/isysquery/36aa91e5-e4cf-4b25-81b8-3823a94a0369/3/frame/?search=browseSource&context
Or go to www.e-laws.gov.on.ca then go to "Source law", choose "Regulations as filed", select 2010 and look under "I" for Insurance Act.
You can find them on the e-laws website at:
http://www.search.e-laws.gov.on.ca/en/isysquery/36aa91e5-e4cf-4b25-81b8-3823a94a0369/3/frame/?search=browseSource&context
Or go to www.e-laws.gov.on.ca then go to "Source law", choose "Regulations as filed", select 2010 and look under "I" for Insurance Act.
February 27, 2010
Ignorance of the Law can be a Reasonable Excuse
The Court of Appeal for Ontario has held that the failure to give statutory notice within 10 days to the municipality, arising out of a slip and fall on an icy municipal sidewalk, is not a bar to an action where the injured person waited four months to give notice because (i) he had a serious injury, (ii) he didn't know about the law requiring him to give notice and (iii) he was depressed. He did not give notice to the City until he was contacted by a lawyer four months after the slip and fall.
At para. 37 the Court held that the plaintiff "acknowledged that he simply did not know that he was required to give notice to the City within ten days, and that he ultimately did so when he was contacted by a lawyer. Given his mental state and the reasons for it, it is hardly surprising that until then, he did not turn his mind to it."
Further, at para. 38, he had "suffered a serious injury requiring a prolonged period of rehabilitation, during which he was deeply worried about his job, his ability to provide for his family, and whether he would ever be able to return to the only career he had known. He was understandably depressed. In these circumstances, not knowing he was required give notice to the respondent, it was reasonable that he did not do so until the end of June."
The Court of Appeal also considered whether the City was grossly negligent and concluded it was so. The City knew that the sidewalks were icy for 34 hours before the slip and fall yet did not salt the sidewalk where the plaintiff fell. The City's own patrol records showed it had knowledge.
The decision is Crinson v. Toronto (City), 2010 ONCA 44, the Court of Appeal for Ontario, per Goudge and LaForme JJ.A., with Juriansz J.A. concurring, overturning the decision of Justice Blenus Wright of the Superior Court of Justice, dated February 20, 2009, with reasons reported at (2009), 57 M.P.L.R. (4th) 221.
At para. 37 the Court held that the plaintiff "acknowledged that he simply did not know that he was required to give notice to the City within ten days, and that he ultimately did so when he was contacted by a lawyer. Given his mental state and the reasons for it, it is hardly surprising that until then, he did not turn his mind to it."
Further, at para. 38, he had "suffered a serious injury requiring a prolonged period of rehabilitation, during which he was deeply worried about his job, his ability to provide for his family, and whether he would ever be able to return to the only career he had known. He was understandably depressed. In these circumstances, not knowing he was required give notice to the respondent, it was reasonable that he did not do so until the end of June."
The Court of Appeal also considered whether the City was grossly negligent and concluded it was so. The City knew that the sidewalks were icy for 34 hours before the slip and fall yet did not salt the sidewalk where the plaintiff fell. The City's own patrol records showed it had knowledge.
The decision is Crinson v. Toronto (City), 2010 ONCA 44, the Court of Appeal for Ontario, per Goudge and LaForme JJ.A., with Juriansz J.A. concurring, overturning the decision of Justice Blenus Wright of the Superior Court of Justice, dated February 20, 2009, with reasons reported at (2009), 57 M.P.L.R. (4th) 221.
February 17, 2010
Unprotected Defendants Entitled to Deduct Collateral Benefits under s. 267.8
Burhoe v. Mohammed (2010), 97 O.R. (3d) (391) (S.C.J.)
The plaintiff was in a motor vehicle accident on December 21, 2001 when his vehicle was struck by a vehicle being operated by a parking valet at a hotel. The accident fell within the Bill 59 regime. As a result of his employment, the plaintiff received long term disability benefits, and might continue to do so after the trial. This was a motion for the determination of questions of law related to the interpretation of s. 267.8 of the Insurance Act.
The court held that both unprotected and protected defendants are entitled to deductions for long term disability benefits under section 267.8(1) of the Insurance Act. Since the section does not differentiate between protected and unprotected defendants, Justice Wein held that the unprotected defendants were entitled to deduct the collateral benefits, and were also entitled to the benefit of the trust and assignment provisions in sections 267.8(9), (10) and (12) with respect to future benefits.
This decision is useful in helping to clairfy for unprotected defendants what benefits they are entitled to deduct.
The plaintiff was in a motor vehicle accident on December 21, 2001 when his vehicle was struck by a vehicle being operated by a parking valet at a hotel. The accident fell within the Bill 59 regime. As a result of his employment, the plaintiff received long term disability benefits, and might continue to do so after the trial. This was a motion for the determination of questions of law related to the interpretation of s. 267.8 of the Insurance Act.
The court held that both unprotected and protected defendants are entitled to deductions for long term disability benefits under section 267.8(1) of the Insurance Act. Since the section does not differentiate between protected and unprotected defendants, Justice Wein held that the unprotected defendants were entitled to deduct the collateral benefits, and were also entitled to the benefit of the trust and assignment provisions in sections 267.8(9), (10) and (12) with respect to future benefits.
This decision is useful in helping to clairfy for unprotected defendants what benefits they are entitled to deduct.
February 10, 2010
Municipality not liable for failing to erect signs
Greenhalgh v. Douro-Dummer (Township), 2009 CanLII 71014 (S.C.J.)
The facts of this case are unusual but Justice Lauwers’ analysis of various issues makes it worthwhile reading. The plaintiff and a friend went driving on back roads in the winter. They turned down a country road, apparently thinking that it went through to another concession road. The road actually was a dead end road and the plaintiffs entered into a private drive, where the car ultimately got lodged on a rock. The women exited their vehicle and spent several hours through the night in freezing temperatures, where they both suffered frostbite that lead to amputations. The plaintiffs sued the Township alleging that it breached a duty by failing to erect Dead End/No Exit and checkerboard signs.
Justice Lauwers’ dismissed the plaintiffs’ claim. He did not accept the plaintiffs’ submission that the Manual of Uniform Traffic Control Devices (“MUTCD”) reflected the applicable standard of care. He did accept that signage is an element of a Municipality’s duty to repair. Justice Lauwers was not prepared to find that the MUTCD standards should apply in the circumstances. He held:
I am not prepared to find that the MUTCD standard should apply as a matter of law in this specific circumstances of Rusaw Lane; given its low traffic load and the absence of hazardous conditions on or near the road; a judicial decision effectively imposing the MUTCD standard as the enforceable standard of care would amount to a form of judicial legislation with wider fiscal and other ramifications, since very few Ontario roads could escape if Rusaw Lane could not. (paragraph 68)
Although this is a rather lengthy decision, it is a worth while read as a primer on various issues, including similar fact evidence, novus actus interveniens, and the burden of proof. In addition, this decision should assist Municipalities in their defence of “failure to repair” cases.
The facts of this case are unusual but Justice Lauwers’ analysis of various issues makes it worthwhile reading. The plaintiff and a friend went driving on back roads in the winter. They turned down a country road, apparently thinking that it went through to another concession road. The road actually was a dead end road and the plaintiffs entered into a private drive, where the car ultimately got lodged on a rock. The women exited their vehicle and spent several hours through the night in freezing temperatures, where they both suffered frostbite that lead to amputations. The plaintiffs sued the Township alleging that it breached a duty by failing to erect Dead End/No Exit and checkerboard signs.
Justice Lauwers’ dismissed the plaintiffs’ claim. He did not accept the plaintiffs’ submission that the Manual of Uniform Traffic Control Devices (“MUTCD”) reflected the applicable standard of care. He did accept that signage is an element of a Municipality’s duty to repair. Justice Lauwers was not prepared to find that the MUTCD standards should apply in the circumstances. He held:
I am not prepared to find that the MUTCD standard should apply as a matter of law in this specific circumstances of Rusaw Lane; given its low traffic load and the absence of hazardous conditions on or near the road; a judicial decision effectively imposing the MUTCD standard as the enforceable standard of care would amount to a form of judicial legislation with wider fiscal and other ramifications, since very few Ontario roads could escape if Rusaw Lane could not. (paragraph 68)
Although this is a rather lengthy decision, it is a worth while read as a primer on various issues, including similar fact evidence, novus actus interveniens, and the burden of proof. In addition, this decision should assist Municipalities in their defence of “failure to repair” cases.
February 4, 2010
Calculation of Housekeeping Losses
McIntyre v. Docherty [2009], 97 O.R. (3d) 189 (C.A.)
The Court of Appeal recently commented on the proper method of calculating housekeeping losses.
The plaintiff was injured in a motor vehicle accident. Before the accident, she did the bulk of the housework and was described as a “neat freak”. Following the accident, she could perform most of her housekeeping responsibilities but with reduced efficiency because of pain. For the balance of those responsibilities, she relied on family members. The jury awarded the plaintiff damages in the amount of $5,000.00 for past housekeeping inefficiency, $10,400.00 for past loss housekeeping capacity and $44,535.00 for future loss housekeeping capacity.
The Court of Appeal held that the trial judge erred in encouraging the jury to separate inefficiency damages from the balance of the non-pecuniary award for pain and suffering and loss of the amenities of life. Justice Lang held that it is generally inappropriate to create a separate heading for one particular component of a global award for non-pecuniary damages. It is unnecessary to divide non-pecuniary losses into subcategories.
In the end, although the judge erred in his charge to the jury, the global award was not unreasonable, and as a result the appeal was dismissed.
The Court of Appeal recently commented on the proper method of calculating housekeeping losses.
The plaintiff was injured in a motor vehicle accident. Before the accident, she did the bulk of the housework and was described as a “neat freak”. Following the accident, she could perform most of her housekeeping responsibilities but with reduced efficiency because of pain. For the balance of those responsibilities, she relied on family members. The jury awarded the plaintiff damages in the amount of $5,000.00 for past housekeeping inefficiency, $10,400.00 for past loss housekeeping capacity and $44,535.00 for future loss housekeeping capacity.
The Court of Appeal held that the trial judge erred in encouraging the jury to separate inefficiency damages from the balance of the non-pecuniary award for pain and suffering and loss of the amenities of life. Justice Lang held that it is generally inappropriate to create a separate heading for one particular component of a global award for non-pecuniary damages. It is unnecessary to divide non-pecuniary losses into subcategories.
In the end, although the judge erred in his charge to the jury, the global award was not unreasonable, and as a result the appeal was dismissed.
February 2, 2010
New Summary Judgment Rule Results in Dismissal of Claim
Langille v. Toronto (City), 2010 ONSC 443 (CanLII), is a new Rule 20 motion in which the Court weighed evidence, evaluated credibility and drew reasonable inferences. The Court concluded that the City had suffered prejudice and that the plaintiff was without reasonable excuse. The Court then dismissed the plaintiff’s claim.
This may prove to be a precedent helpful to municipalities.
Section 44 (10) of the Municipal Act, 2001 requires, in regard to claims for highway and sidewalk maintenance, that claimants must provide written notice of their claim to the municipality “within 10 days after the occurrence of the injury”.
Subsection (12) goes on to state that “Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”
These statutory notices are often sent to municipalities late.
The issues of “reasonable excuse” and “prejudice” in subsection 12 require evidence that must be weighed and is tied up with the credibility of witnesses.
Municipalities have often been unable to bring summary judgment motions for the failure to give notice because of the inability of a court to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on Rule 20 motions.
Now under new Rule 20 this is possible.
The plaintiff slipped and fell on ice on a sidewalk in the City of Toronto on March 1, 2004. He met with a paralegal on March 8, 2004, and the paralegal drafted a notice letter. The City maintained they never received it. The paralegal could only say that it was office protocol that the letter would have been faxed or sent by regular mail but had no evidence of doing so.
The motion judge was satisfied that the letter had not been sent and that the required notice was not provided.
The motion judge then went on to consider whether the Municipality had suffered prejudice and concluded that where notice has not been provided within ten days, the Municipality is presumed to have been prejudiced.
The City was given initial notice of the incident 12 weeks after it occurred but was not given the precise location where the plaintiff fell until nearly two years after the incident. The motion judge concluded, based on affidavit evidence from the City that they would have investigated immediately had they had the opportunity and that the City had suffered prejudice through lost opportunity to fully investigate the claim.
The motion judge also went on and concluded that the plaintiff had no reasonable excuse for failure to comply with the notice provision and, if the plaintiff has remedies, they lie “elsewhere”.
An interesting decision.
This may prove to be a precedent helpful to municipalities.
Section 44 (10) of the Municipal Act, 2001 requires, in regard to claims for highway and sidewalk maintenance, that claimants must provide written notice of their claim to the municipality “within 10 days after the occurrence of the injury”.
Subsection (12) goes on to state that “Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.”
These statutory notices are often sent to municipalities late.
The issues of “reasonable excuse” and “prejudice” in subsection 12 require evidence that must be weighed and is tied up with the credibility of witnesses.
Municipalities have often been unable to bring summary judgment motions for the failure to give notice because of the inability of a court to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence on Rule 20 motions.
Now under new Rule 20 this is possible.
The plaintiff slipped and fell on ice on a sidewalk in the City of Toronto on March 1, 2004. He met with a paralegal on March 8, 2004, and the paralegal drafted a notice letter. The City maintained they never received it. The paralegal could only say that it was office protocol that the letter would have been faxed or sent by regular mail but had no evidence of doing so.
The motion judge was satisfied that the letter had not been sent and that the required notice was not provided.
The motion judge then went on to consider whether the Municipality had suffered prejudice and concluded that where notice has not been provided within ten days, the Municipality is presumed to have been prejudiced.
The City was given initial notice of the incident 12 weeks after it occurred but was not given the precise location where the plaintiff fell until nearly two years after the incident. The motion judge concluded, based on affidavit evidence from the City that they would have investigated immediately had they had the opportunity and that the City had suffered prejudice through lost opportunity to fully investigate the claim.
The motion judge also went on and concluded that the plaintiff had no reasonable excuse for failure to comply with the notice provision and, if the plaintiff has remedies, they lie “elsewhere”.
An interesting decision.
January 27, 2010
Painful Symptoms Alone Insufficient to Claim Non-earner Benefits
Mangallon v. T.T.C. Insurance Company Ltd., FSCO A07-001813, December 18, 2009
A FSCO decision recently confirmed the stringent test for entitlement to non-earner benefits.
Ms. Mangallon was injured on October 27, 2005 when the rear doors of a T.T.C. bus suddenly closed on her as she attempted to board. She applied for a non-earner benefit, which T.T.C. refused to pay. T.T.C. argued that the incident was a minor one and did not result in an impairment that affected the claimant’s ability to function to a degree that would qualify her for a non-earner benefit. T.T.C. took the position that Ms. Mangallon’s post-accident headaches, dizziness, whole body pain and depression pre-dated the accident and were due to long standing and serious heart disease, diabetes and depression, which were not related to the accident.
The arbitrator agreed with T.T.C. Arbitrator Sapin held that the test for entitlement to a non-earner benefit is stringent. An impairment sustained in the accident must be one that continuously prevents the insured from engaging in substantially all of the activities in which she engaged before the accident. Arbitrator Sapin quoted from the Ontario Court of Appeal decision in Heath v. Economical stating that where pain is the primary factor, “the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.” Arbitrator Sapin further held that accident related pain, suffering or disability that interferes with daily living or makes it difficult may not be sufficient to qualify a person for a non-earner benefit. This is the case even though such pain might entitle the person to damages for pain and suffering in a tort action. Arbitrator Sapin was not convinced that Ms. Mangallon met the test for non-earner benefits.
By confirming the stringent test for entitlement for non-earner benefits, this decision may serve to limit the number of claims for non-earner benefits, especially in cases where the claimant has substantial pre-accident history and causation of his or her post-accident symptoms is doubtful.
A FSCO decision recently confirmed the stringent test for entitlement to non-earner benefits.
Ms. Mangallon was injured on October 27, 2005 when the rear doors of a T.T.C. bus suddenly closed on her as she attempted to board. She applied for a non-earner benefit, which T.T.C. refused to pay. T.T.C. argued that the incident was a minor one and did not result in an impairment that affected the claimant’s ability to function to a degree that would qualify her for a non-earner benefit. T.T.C. took the position that Ms. Mangallon’s post-accident headaches, dizziness, whole body pain and depression pre-dated the accident and were due to long standing and serious heart disease, diabetes and depression, which were not related to the accident.
The arbitrator agreed with T.T.C. Arbitrator Sapin held that the test for entitlement to a non-earner benefit is stringent. An impairment sustained in the accident must be one that continuously prevents the insured from engaging in substantially all of the activities in which she engaged before the accident. Arbitrator Sapin quoted from the Ontario Court of Appeal decision in Heath v. Economical stating that where pain is the primary factor, “the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.” Arbitrator Sapin further held that accident related pain, suffering or disability that interferes with daily living or makes it difficult may not be sufficient to qualify a person for a non-earner benefit. This is the case even though such pain might entitle the person to damages for pain and suffering in a tort action. Arbitrator Sapin was not convinced that Ms. Mangallon met the test for non-earner benefits.
By confirming the stringent test for entitlement for non-earner benefits, this decision may serve to limit the number of claims for non-earner benefits, especially in cases where the claimant has substantial pre-accident history and causation of his or her post-accident symptoms is doubtful.
January 20, 2010
Disputes Between Insurers – When does the notice period begin to run?
ING Insurance Company of Canada v. State Farm Insurance Company, [2009] 97 O.R. (3d) 291 (S.C.J.)
This case involved a dispute between insurers as to who was responsible for paying the claimant’s accident benefits. The claimant did not have insurance of her own, but her father had a policy with ING to which she would be entitled if she was “principally dependant” on her father at the time of the accident. State Farm was the at fault party’s insurer. ING initially paid some minor expenses prior to receipt of a completed OCF-1. After receiving the completed application for benefits, ING concluded that the claimant was not principally dependant and sent a Notice to Applicant of Dispute Between Insurers to the claimant and to State Farm within 90 days of the receipt of the OCF-1. Regulation 283/95 provides that the Notice must be sent within 90 days of a “completed application” for benefits. The issue in this case was the meaning of “completed application”. State Farm argued the notice period began earlier than the OCF-1 given ING’s decision to pay benefits; ING argued the applicable date was when the OCF-1 was received.
The court held that the plain language of the Regulation means that the 90 days begin to run when the OCF-1 is received. ING’s decision to pay benefits was the proper thing to do and the purpose of the Regulation is to encourage good claims handling, not penalize insurers.
The interpretation used by the court in this case provides certainty to the 90 day limitation period for serving notice. If the 90 day notice period begins to run at some point prior to the OCF-1 being received, the limitation becomes a more nebulous item and could encourage insurers to avoid making payments until priority disputes are settled. This could disadvantage claimants, contrary to the intentions of the accident benefits scheme. This decision seems to be a sensible way to provide certainty to insurers.
This case involved a dispute between insurers as to who was responsible for paying the claimant’s accident benefits. The claimant did not have insurance of her own, but her father had a policy with ING to which she would be entitled if she was “principally dependant” on her father at the time of the accident. State Farm was the at fault party’s insurer. ING initially paid some minor expenses prior to receipt of a completed OCF-1. After receiving the completed application for benefits, ING concluded that the claimant was not principally dependant and sent a Notice to Applicant of Dispute Between Insurers to the claimant and to State Farm within 90 days of the receipt of the OCF-1. Regulation 283/95 provides that the Notice must be sent within 90 days of a “completed application” for benefits. The issue in this case was the meaning of “completed application”. State Farm argued the notice period began earlier than the OCF-1 given ING’s decision to pay benefits; ING argued the applicable date was when the OCF-1 was received.
The court held that the plain language of the Regulation means that the 90 days begin to run when the OCF-1 is received. ING’s decision to pay benefits was the proper thing to do and the purpose of the Regulation is to encourage good claims handling, not penalize insurers.
The interpretation used by the court in this case provides certainty to the 90 day limitation period for serving notice. If the 90 day notice period begins to run at some point prior to the OCF-1 being received, the limitation becomes a more nebulous item and could encourage insurers to avoid making payments until priority disputes are settled. This could disadvantage claimants, contrary to the intentions of the accident benefits scheme. This decision seems to be a sensible way to provide certainty to insurers.
January 13, 2010
Summary Judgment Not Available in Small Claims Court
Caprio v. Caprio, [2009] 97 O.R. (3d) 312 (S.C.J.)
This Small Claims action involved a dispute between family members over whether a grandmother who gave money to her grandson before she died was giving the money as a loan or a gift. The grandson brought a summary judgment motion and sought to have the action dismissed based on affidavit evidence. Deputy Justice Bale refused to grant summary judgment, holding that summary judgment is not available in Small Claims Court. Bale D. J. refused to follow prior decisions where summary judgment had been permitted using section 1.03(2) of the Small Claims Court Rules, which allows a court to refer to the Rules of Civil Procedure where matters are not provided for in the Small Claims rules. The court held that reference to the Rules of Civil Procedure is for minor matters and cannot be used to create a new and substantial procedure in Small Claims, such as summary judgment.
There are cases going both ways dealing with the issue of whether summary judgment is available in Small Claims Court. Given the new increased monetary jurisdiction of Small Claims Court of $25,000.00, this decision has particular importance. There could now be cases that are within the Small Claims Court jurisdiction that were formally within the Simplified Procedure. Cases that would have been in Simplified Rules would have been susceptible to a summary judgment motion; however, if summary judgment is not available in Small Claims Court, the case must now proceed through to trial. There is no mechanism for an earlier resolution of the claim. It may be that the Civil Rules committee should consider whether to clear up this issue by explicitly providing for the existence of summary judgment or prohibiting its use in Small Claims.
This Small Claims action involved a dispute between family members over whether a grandmother who gave money to her grandson before she died was giving the money as a loan or a gift. The grandson brought a summary judgment motion and sought to have the action dismissed based on affidavit evidence. Deputy Justice Bale refused to grant summary judgment, holding that summary judgment is not available in Small Claims Court. Bale D. J. refused to follow prior decisions where summary judgment had been permitted using section 1.03(2) of the Small Claims Court Rules, which allows a court to refer to the Rules of Civil Procedure where matters are not provided for in the Small Claims rules. The court held that reference to the Rules of Civil Procedure is for minor matters and cannot be used to create a new and substantial procedure in Small Claims, such as summary judgment.
There are cases going both ways dealing with the issue of whether summary judgment is available in Small Claims Court. Given the new increased monetary jurisdiction of Small Claims Court of $25,000.00, this decision has particular importance. There could now be cases that are within the Small Claims Court jurisdiction that were formally within the Simplified Procedure. Cases that would have been in Simplified Rules would have been susceptible to a summary judgment motion; however, if summary judgment is not available in Small Claims Court, the case must now proceed through to trial. There is no mechanism for an earlier resolution of the claim. It may be that the Civil Rules committee should consider whether to clear up this issue by explicitly providing for the existence of summary judgment or prohibiting its use in Small Claims.
January 11, 2010
Caps on General Damages Upheld
Two recent decisions have upheld the cap on general damages in Alberta and Nova Scotia. In Hartling v. Nova Scotia, the Nova Scotia Court of Appeal upheld Nova Scotia’s $2,500.00 cap on “minor injuries”. In Morrow v. Zhang, the Supreme Court of Canada dismissed a leave application from the Alberta Court of Appeal’s decision which upheld Alberta’s Minor Injury Regulation which imposes a $4,000.00 cap on non-pecuniary damages for minor injuries. The Alberta legislation defines minor injuries as sprains, strains and WAD I or II injuries. In both cases, the cap was challenged as violating the Canadian Charter of Rights and Freedoms, alleging discrimination under s. 15 on the basis of physical disability, mental disability and gender. The Courts held that the caps were not discriminatory.
Although these decisions will likely be applauded by those defending claims, they raise interesting questions. Since the caps only apply to non-pecuniary general damages, will courts increase other heads of damages in order to compensate? For example, in Morrow, the trial judge would have assessed the plaintiff’s general damages at $20,000.00 and $15,000.00. The cap would reduce those to $4,000.00, but in another circumstance, would a court increase the amount of pecuniary damages to compensate? One also has to wonder whether physicians treating patients injured in automobile accidents who are aware of the cap on minor injuries might tend to describe them in different ways so as to avoid being caught by the definition. Both the Alberta and Nova Scotia courts discussed the history of the caps and the fact that they were attempts by the legislatures to control escalating automobile insurance costs. The courts seem to be sending a message that they will give effect to the legislature’s intentions with these decisions.
Although these decisions will likely be applauded by those defending claims, they raise interesting questions. Since the caps only apply to non-pecuniary general damages, will courts increase other heads of damages in order to compensate? For example, in Morrow, the trial judge would have assessed the plaintiff’s general damages at $20,000.00 and $15,000.00. The cap would reduce those to $4,000.00, but in another circumstance, would a court increase the amount of pecuniary damages to compensate? One also has to wonder whether physicians treating patients injured in automobile accidents who are aware of the cap on minor injuries might tend to describe them in different ways so as to avoid being caught by the definition. Both the Alberta and Nova Scotia courts discussed the history of the caps and the fact that they were attempts by the legislatures to control escalating automobile insurance costs. The courts seem to be sending a message that they will give effect to the legislature’s intentions with these decisions.
January 6, 2010
Transition Issues with the new Rules
Thanks to a reader of our blog, Ted Key, for bringing this case to our attention: Onex Corporation et al. v. American Home Assurance et al., 2009 CanLII 72052 (Ont. S.C.J.).
This is the first decision we are aware of that addresses the inevitable transition issues that will arise from the new Rules of Civil Procedure that came into effect on January 1, 2010.
The plaintiffs, in an excess insurance case, filed a motion for summary judgment. The defendants then filed for directions to clarify and confirm that the current rules will apply when the summary judgment motion is argued.
The question decided is this: If a motion for summary judgment under rule 20 is filed in 2009 but heard in 2010, after the rule changes take effect, should the matter be heard under the old rule or the new rule?
The judge concluded that the motion should be heard under the new rule.
I'll leave you to read the decision for the details but it includes a helpful analysis of the current rule and lack of transition provisions.
Paragraph 8 of the Endorsement indicates: "In my view, if the legislature had intended that the old rule 20 would continue to apply to summary judgment motions filed before 2010 or that a general “transitional provision” was required, it could have said so. It chose not to do this. It follows, therefore, that the new summary judgment procedure is intended to take immediate effect as of January 1, 2010 and apply to all rule 20 matters before the court, whenever the motion was filed."
This is the first decision we are aware of that addresses the inevitable transition issues that will arise from the new Rules of Civil Procedure that came into effect on January 1, 2010.
The plaintiffs, in an excess insurance case, filed a motion for summary judgment. The defendants then filed for directions to clarify and confirm that the current rules will apply when the summary judgment motion is argued.
The question decided is this: If a motion for summary judgment under rule 20 is filed in 2009 but heard in 2010, after the rule changes take effect, should the matter be heard under the old rule or the new rule?
The judge concluded that the motion should be heard under the new rule.
I'll leave you to read the decision for the details but it includes a helpful analysis of the current rule and lack of transition provisions.
Paragraph 8 of the Endorsement indicates: "In my view, if the legislature had intended that the old rule 20 would continue to apply to summary judgment motions filed before 2010 or that a general “transitional provision” was required, it could have said so. It chose not to do this. It follows, therefore, that the new summary judgment procedure is intended to take immediate effect as of January 1, 2010 and apply to all rule 20 matters before the court, whenever the motion was filed."
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