Happy Holidays

Happy holidays from the Ontario Insurance Law Blog.  We'll return in January with new posts.  All the best in 2014!

The Definition of "Dependency" Under the SABS

Does an adult child attempting to become self-supporting qualify as a "dependent" under the SABS? The answer may be "yes", depending on the person's circumstances at the time of the accident.

In State Farm v. Bunyan, 2013 ONSC 6670 (S.C.J.), Mr. Bunyan was a pedestrian who was catastrophically injured in a motor vehicle accident.  He moved out of his mother's house after high school, lived with a girlfriend and had a child.  He moved twice to Alberta to find work, but came back to his live with his mother each time.  At the time of the accident he had $0.24 in his bank account and was covering his daily expenses with money from his mother.  He had problems with alcohol.  Corbett J. was satisfied that Mr. Bunyan would have continued relying on his mother's support until she refused help or he obtained help with his alcohol issues.

Corbett J. held that "dependency" must be assessed looking at four factors:

1.  Amount of dependency;
2.  Duration of dependency;
3.  Financial or other needs of the alleged dependent; and
4.  The ability of the alleged dependent to be self-supporting.

Corbett J. held that Mr. Bunyan was principally dependent on his mother: although he was seeking to become self-supporting, more than half of his day-to-day expenses were covered by his mother, he had not found permanent accommodation, had not obtained transportation, had not established that he could keep steady employment, was not paying child support, had no savings, and had problems with alcohol.  He therefore qualified as an "insured person" under his mother's policy.

The Standard of Care in Parking Lots

The Divisional Court recently considered an appeal involving the standard of care in a parking lot.  The primary conclusion is that the Highway Traffic Act does not generally apply to parking lots.

In Bossio v. Ramsahoye, 2013 ONSC 6878 (Div. Ct.), the parties were in a motor vehicle accident in a GO Train station parking lot.  The plaintiff was driving northbound in the centre lane of the parking lot, and the defendant was westbound in one of several exit lanes.  The trial judge's charge referred to the location of the accident as "a completely neutral intersection". The jury dismissed the action and the plaintiff appealed.

The plaintiff alleged that the trial judge erred by failing to instruct the jury that the common law duties of drivers approaching an uncontrolled intersection set out in the Highway Traffic Act would apply.  The defendant submitted that:

47. The absence of any reference to the Highway Traffic Act at first instance was not inadvertent. The Highway Traffic Act generally has no application to private parking lots. While the Act and the rules of road therein have been found to apply to certain peculiar parking lot situations (i.e. where the parking lot has a dual function as a thoroughfare, or where the Act provision at issue does not use the word “highway” or any word that incorporates the word “highway in its definition), this was not the case at hand and there was never any dispute as between the parties on this point.

48. The authority cited by the Plaintiff does not support her assertion that there are duties at common law equivalent to those found in the Highway Traffic Act, applicable where the Act is silent. At most, the “rules of the road” are distillations of what amounts to reasonable care and offer guidance to situations not covered by the Act.

49. Had the Highway Traffic Act applied, this would have been to the benefit of the Defendant, not the Plaintiff. Under the rules of the road, and specifically subsection 135(3) of the Act, when two vehicles enter an uncontrolled intersection of highways at approximately the same time, the driver on the right (the Defendant in this case) has the right of way.

The Divisional Court agreed with the defendant's submissions and dismissed the appeal.  

 

Attendant Care Benefits under SABS-2010

Can an insurer pro-rate attendant care benefits payable based on the hours of work lost by the attendant care provider?

Tyrone Henry was left a paraplegic after a motor vehicle accident in September 2010. His mother took an unpaid leave of absence from work to provide the full-time care he required. Gore Mutual Insurance took the position that the attendant care payments were limited to the number of hours that Tyrone Henry’s mother had been working as a proportion of the total attendant care hours assessed as reasonable.

Tyrone Henry brought an Application before the Ontario Superior Court (Henry v. Gore Mutual Insurance Company, 2012 ONSC 3687) taking the position that he was entitled to the total attendant care hours. The judge agreed. At issue was the interpretation of the Statutory Accident Benefits Schedule effective September 1, 2010 (“SABS-2010”). Justice Ray commented that the intent of SABS-2010 was “to prevent a member of an insured’s family who was not ordinarily an income earner or working outside the home, from profiting from an attendant care benefit, when they would likely be at home anyway and would have looked after the injured person without compensation”. This was not the case with Tyrone Henry’s mother who was employed full-time. Justice Ray held that Gore Mutual was obliged to pay to Tyrone Henry all reasonable and necessary attendant care expenses he was obliged to pay his mother, not limited to the economic loss she sustained from leaving her 40 hour per week job.

Gore Mutual appealed to the Ontario Court of Appeal (Henry v. Gore Mutual Insurance Company 2013 ONCA 480). The appeal was dismissed. The Court held that Justice Ray was correct in concluding economic loss was a threshold for entitlement to, but not a measure of, reasonable and necessary attendant care benefits to be paid by an insurer. Once Tyrone Henry’s mother sustained an economic loss, attendant care benefits were payable with respect to all the care she provided to him.

As a result of this case, regardless of the attendant care provider's amount of lost income, as long as they experience a loss of income, they will receive the entire benefit.  This will result in some attendant care providers earning more than they would have if they had not left their employment and others earning less. 

Damages for Intentional Tort Survive Bankruptcy

The Court of Appeal recently released a decision that looks at the interplay of tort law and bankruptcy.

In Dickerson v. 1610396 Ont. Inc. (c.o.b. Casey's Pub & Grill), 2013 ONCA 4955 (C.A.), a jury awarded the plaintiff damages against the defendant in excess of $1 million arising out of an assault.  The defendant punched the plaintiff once in the head, causing the plaintiff to lose consciousness, fall to the ground and sustain brain damage.  As a result of the judgment, the defendant declared bankruptcy.  The plaintiff brought a motion for an order that the award of damages survived bankruptcy, based on s. 178(1)(a.1) of the Bankruptcy and Insolvency Act, which provides:

178(1) An order of discharge does not release the bankrupt from 

 (a.1) any award of damages by a court in civil proceedings in respect of 

(i) bodily harm intentionally inflicted, or sexual assault or 

(ii) wrongful death resulting therefrom.

The motions judge held that although the jury found the defendant "deliberately punched the plaintiff in the head", the verdict did not provide a framework to assess whether it was an "intentional infliction of bodily harm". She dismissed the motion and the plaintiff appealed.

The Court of Appeal allowed the appeal, holding that s. 178(1)(a.1) will apply where there is direct proof of intentional infliction of bodily harm or where it can be reasonably inferred.  As long as there is intent, the section will apply; there is no requirement to show the circumstances were sufficiently offensive to social mores to justify withholding the protection of bankruptcy.

Municipality Not Liable in Recreational Trail Case

Recently the Ontario Courts found a municipality not liable, under section 4(1) of the Occupier’s Liability Act, for the plaintiff’s fall off the edge of a ravine. In coming to this finding the court took an expansive view of when this section applied and indicated what is required to meet the lower standard of care under this section.

In Pierce v. Hamilton(City), 2013 ONSC 6485 (S.C.J.), the plaintiff entered the park on a marked recreational trail near the edge of the Niagara Escarpment, he then left the trail and proceeded on an unmarked dirt path and fell off the edge of the ravine sustaining physical injuries. The City of Hamilton acknowledged that they were the occupier of the premises, but asserted they had met the standard of care.  The trail itself qualified as a recreational trail and was clearly marked as such, but the issue was whether the dirt path also qualified.  The Court held that the standard of care was the same as if the plaintiff was on a marked trail, stating:

“If that owner is given the benefit of the lower standard of care in return for allowing the public to enjoy the recreational trail on the land, it makes no sense to saddle the owner with the higher standard of care the moment a hiker or cyclist or skier moves off of the recreational trail. Further, it makes no sense for two different standards of care to alternately apply as a trail user hops on and off of the recreational trail.”

Given this, the plaintiff was deemed to have willingly assumed all risks associated with the premises and the lesser standard set out in section 4(1) of the Occupier’s Liability Act applied.

The Court accepted the evidence of the representative of the City that they had not received any previous complaints of people falling into the ravine and thus had no information that would suggest there was an unusual danger on any dirt path in the park area.   Justice Henderson rejected the plaintiff’s argument that the City failed to meet the standard of care for failing to conduct inspections of the park, for failing to have warning signs and for failing to construct a protective fence.  Justice Henderson held that it would be impossible for the City to conduct regular inspections of the 3,000 acres of natural areas. Regarding the signage and fencing, the Court held:

“As to signage, clearly a specific warning sign was not warranted if the City was not aware of any specific danger... I find that the failure of the City to erect a more general warning sign, such as "Caution. Uneven Ground in the Woods" does not constitute a breach of its duty. Such a warning sign would in fact be a sign stating the obvious; that is, that the terrain in the woods is uneven and unpredictable... I also reject the plaintiffs' submissions that the City ought to have built a barricade or a fence near the drop-off into the ravine. The danger of a sharp drop in elevation in a wooded area that was near the edge of an escarpment should be obvious to anyone who entered the woods.”

This case builds on the Ontario Court of Appeal decision in the Schneider v. St. Clair Region Conservation Authority case regarding when section 4(1) applies and highlights the lower standard of care under this section.

Leave Required for Refusals Motion After Set Down – Part II

We previously posted on the decision of Jetport v. Jones Brown, 2013 ONSC 2470 (S.C.J.), which held that leave is required for a refusals motion that is commenced after the action has been set down.  The Jetport decision has been followed in Hamilton v. Ontario(Minister of Transport), 2013 ONSC 4536 (S.C.J.).

In Hamilton, a representative of the defendant was examined for discovery on March 30, 2012.  In response to a status notice, the plaintiffs delivered a trial record and set the matter down for trial on January 22, 2013.  The plaintiff then brought a motion seeking answers to refusals on March 7, 2013.  The motion was dismissed by Master Haberman on the basis that the plaintiff had not sought leave for as required by rule 48.04 and the plaintiff appealed.

On appeal Firestone J. held that although there was disagreement in the case law on the issue of whether leave is required, Master Haberman was not in error when she chose the line of authority that appeared most persuasive.  The line of authority followed by Master Haberman and approved of on appeal was that of Jetport v. Jones Brown.     

Because leave was not sought, the Master was correct in not considering the issue of refusals. 

It may have been that the Master’s decision was meant to be a procedural slap on the wrist to the plaintiff.  The decision notes that the requirement for leave was neither sought nor addressed by the plaintiff in their original motion material.  The Master’s decision did not preclude the plaintiff from bringing a motion for leave to have their refusals motion heard.  Counsel should be cautious about setting a matter down if they wish to pursue refusals.  They should also seek leave of the court, and address this in motion materials when in doubt.  

Limitation Periods in Insurance Contracts

Can a one year limitation period in an insurance contract override the two year limitation period?

 The Ontario Court of Appeal says it can. In Boyce v.The Co-Operators General Insurance Company, 2013 ONCA 298, the Boyces owned and operated a boutique insured by the Co-Operators. A foul odour was discovered on October 30, 2010 and the Co-Operators took an off coverage position on the basis the smell was caused by a skunk.

The Boyces claimed that the business had been vandalized, a peril covered by the policy, and they filed a proof of loss claim in December 2010 and commenced an action in February 2012, more than one year, but less than two years after the incident. The Co-Operators moved for summary judgment, claiming that the action was time barred by a one year limitation period set out in the insurance contract.

The motion judge held that the one year limitation period in the contract did not override the statutory two year limitation period set out in s. 4 of the Limitations Act, 2002. The Co-Operators appealed.

A term in a contract purporting to vary an otherwise applicable limitation period under the Limitations Act has to comply with s. 22 of the Limitations Act. That section allows parties to vary or exclude, by agreement, the otherwise applicable statutory limitation period. The Co-Operators relied on s. 22(5) which applies only to business agreements.

The Court of Appeal stated at paragraph 20:

A court faced with a contractual term that purports to shorten a statutory limitation period must consider whether that provision in ‘clear language’ describes a limitation period, identifies the scope of the application of that limitation period, and excludes the operation of other limitation periods. A term in a contract which meets those requirements will be sufficient for s. 22 purposes, assuming, of course, it meets any of the other requirements specifically identified in s. 22.

In order for s. 22(5) to apply the contract must be a “business agreement” defined by the Limitations Act as “an agreement made by parties none of whom is a consumer”. The Court of Appeal found that the Boyces contracted with the Co-Operatos for insurance covering various risks related to the operations of their business and the contract was not for personal, family or household purposes. As such the contract was a “business agreement”. The appeal was allowed. 

Surveillance particulars must be served even if not relying on it at trial

A recent decision has held that a defendant who obtains surveillance must serve particulars of it, even if not relying on it at trial.

In Arsenault-Armstrong v. Burke, 2013 ONSC 4353 (S.C.J.), the plaintiff sought an undertaking that the defendant provide particulars of future surveillance, including date, time, name of investigator and so forth.  The defendant refused to provide particulars if she was not relying on the surveillance at trial.

Justice Hambly held that the defendant must provide particulars of surveillance even if she does not intend to rely on it at trial.  At paragraph 11, Justice Hambly stated:

[11]           The consequences of the defence not producing the full particulars of surveillance evidence in its possession, even if in the period leading up to the trial the defence is of the view that it will not rely on it at trial are well illustrated in Beland.  The surveillance evidence will assist the plaintiff in evaluating the strength of her case and arriving at her settlement position prior to trial.  Even if the defendant will not be able to use the surveillance evidence for impeachment purposes, as a result of its non-disclosure, the defence will gain knowledge of the plaintiff from the surveillance evidence which it will be able to use to its benefit.  A requirement that the defence produce it even if it does not presently intend to use at trial is consistent with what the Court of Appeal said in Ceci v. Bank (1992), 7 O.R. (3d) 381 quoted above by Justice Howden.  In Beland, after a 17 day trial a jury dismissed the plaintiff’s case.  The trial judge fixed costs against the plaintiff, exclusive of HST at $115,318. This is a devastating result for a plaintiff. Perhaps it could have all been avoided if the disputed surveillance evidence had been produced by the defendant.

The difficulty with this decision for the defence is that the value of surveillance as an impeachment tool may be lost if the plaintiff has knowledge of the particulars.  In addition, if the defence does not intend to rely on it at trial, how can it assist in settlement?  Lastly, the decision does not give guidance on how far in advance of trial the particulars must be disclosed.

Is the Insurer Always Justified in Denying Coverage On the Basis of a Breach of a Statutory Clause?

Every automobile insurance policy issued in Ontario contains statutory clause 4.1:

 

                The insured shall not drive or operate or permit any other person to drive or operate the automobile unless the insured or other person is authorized by law to drive or operate it.

 

Section 32 of Highway Traffic Act requires an operator of a motor vehicle to hold a valid driver’s licence. In Kozel v.Personal Insurance Co. [2013] ONSC 2670 (S.C.J), the applicant was a 77 woman year old woman who was involved in a motor vehicle accident in Florida. Her insurer denied coverage on the basis that she was in breach of the policy at the time of the accident because her driver’s license had expired. The applicant brought this application for a declaration that the insurer owed a duty to indemnify and defend her in a third party action against her.

 

Approximately five months prior to the accident, the applicant received documentation from the Ministry concerning the renewal of her driver’s licence and vehicle plate sticker. Two weeks prior to the renewal date, the applicant gave the package of documentation to her dealership where she took delivery of a new vehicle. She was unaware that this package contained her licence renewal. Until the accident occurred, she was unaware that her licence had not been renewed. She reported the accident in a timely manner and renewed her license immediately upon discovering it was expired.

 

Justice Wood cited the 2011 Court of Appeal decision Tut v. R.B.C. General Insurance Company [2011] ONCA 644 where it was held that if an offence for breaching the regulation was one of strict liability rather than absolute liability, it was open to the insured to argue that he took all reasonable care in the circumstances to see that he was not in breach of the regulation. Were he able to argue this defence successfully it would follow that he remained authorized to drive within the meaning of statutory condition 4(1).

 

Justice Wood held that since an offence of driving with an expired licence is one of strict liability, an argument that the applicant exercised due diligence was available. Justice Wood found that the applicant took active steps to ensure that she met her duty, although mistakenly, she provided a believable explanation for her lack of perfect diligence and her actions were those of a reasonable person acting upon a genuinely mistaken belief.  As such, the court found that the applicant was entitled to a defence under the policy.

 

This case shows that breaches of the insurance policy are not always clear cut and can involve the consideration by the court of many subjective factors.    

Can a Plaintiff Avoid Discovery Due to Medical Reasons?

Can a plaintiff avoid attending discovery or an independent medical examination due to anxiety or an inability to respond to questions appropriately?

In Lalousis v. Roberts, 2013 ONSC 5897 (S.C.J), the plaintiff sought $4 million in two actions relating to two motor vehicle accidents.  She alleged that she could not participate in oral discovery or an IME  due to medical reasons, including that she was not able to respond to questions, had poor communication and attention, and discovery would increase her anxiety and depression.  She sought to avoid the discovery process or have her husband act as a substitute.

Master Muir dismissed the motion.  A party has a prima facie right to a full and complete discovery of an adverse party, which includes oral examination and may include a medical examination.  The threshold to limit a party's right to discovery is a high one and should be ordered only in the rarest of cases.  In the circumstances, an examination for discovery might be unproductive as she may not provide responsive answer, and it could cause anxiety for the plaintiff; however, there was no evidence that it would cause her permanent damage.

In order to permit the defence to fully respond to the claim against it, it makes sense that the threshold for taking away those rights is very high.

Restoring an Action to the Trial List

The Court of Appeal has provided guidance with respect to the test for restoring an action to the trial list.

In Nissar v. Toronto Transit Commission, 2013 ONCA 361 (C.A.), the plaintiff alleged she was injured while a passenger on a bus in 1999. Examinations for discovery took place in 2002, but transcripts were not ordered and the tapes were destroyed in 2010.  Although the matter was set down for trial in 2004, it was struck off the trial list in 2005.  The plaintiff changed counsel three times.  The motion to restore the action to the trial list was not brought until 2011, and not heard until 2012.  The motion judge dismissed the motion, holding there was no explanation as to why it had taken seven years to bring the motion to restore the action to the trial list, and there was prejudice to the defendant as pre-accident OHIP records were not available and the defendant might not remember details of an accident that occurred 13 years previously.

The Court of Appeal dismissed the appeal. The plaintiff bears the onus of demonstrating there is an acceptable explanation for the delay in the litigation and that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice.  In the circumstances, the plaintiff had failed to meet the test.

The Nissar decision was release concurrently with the Faris case, which was the subject of last week's post. They may signal a new emphasis on moving cases swiftly through the system, rather than allowing them to languish for several years.

Dismissal for Delay at Status Hearings

The Court of Appeal has answered a question that arises fairly frequently in civil litigation: under what circumstances should an action be dismissed by the court following a status hearing?

In Faris v. Eftimovski, 2013 ONCA 360 (C.A.), the action was commenced in 2007 alleging damages from real estate transactions in 2003 and 2005.  At the time of the status hearing in 2012, pleadings had not been finalized, no documentary productions had been exchanged, and no examinations for discovery had occurred.  Two of the defendants had died.  The status hearing judge dismissed the action, holding that there were unexplained delays in the action and there was non-compensable prejudice to the defendants since parties had died.

The Court of Appeal dismissed the appeal.  Justice Tulloch distinguished between r. 24, which permits a defendant to take a deliberate procedural step to have the action dismissed, and r. 48, which allows the court to control the pace of litigation. The onus is on the plaintiff to demonstrate there was an acceptable explanation for the delay and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice.

There has been much discussion recently about lengthy delays in trial lists.  Could the Court of Appeal be signalling an attempt to clear out cases that are slowing down the system?

Timing of Summary Judgment Motions

At what point in a lawsuit is it appropriate to bring a summary judgment motion?

In Stever v. Rainbow International Carpet Dyeing & Cleaning Inc., 2013 ONSC 4054 (S.C.J.), the defendant brought a summary judgment motion prior to discoveries, alleging there was no issue requiring a trial as the limitation period had expired.  Justice Morgan held that summary judgment motions typically proceed after discoveries are complete, or with affidavit evidence and cross-examinations that "go a long way to replicating what will be produced at discoveries."  Justice Morgan adjourned the summary judgment until after discoveries had been completed.

Stever is in line with the Court of Appeal's decision in Combined Air, which held:

58     Moreover, the record built through affidavits and cross-examinations at an early stage may offer a less complete picture of the case than the responding party could present at trial. As we point out below, at para. 68, counsel have an obligation to ensure that they are adopting an appropriate litigation strategy. A party faced with a premature or inappropriate summary judgment motion should have the option of moving to stay or dismiss the motion where the most efficient means of developing a record capable of satisfying the full appreciation test is to proceed through the normal route of discovery. This option is available by way of a motion for directions pursuant to rules 1.04(1), (1.1), (2) and 1.05.

In many cases, especially where there is an issue of discoverability, summary judgment is likely not appropriate until discoveries are complete.

Discount Rate

The new discount rates have been posted on the Attorney General's website.  They can be found at:

http://www.attorneygeneral.jus.gov.on.ca/english/courts/civil/pecuniary_damages.asp

For 2014, the discount rate is 0.3% for the first 15 years and 2.5% thereafter.

Bifurcation

Rule 6.1.01 became effective on January 1, 2010.  It provides as follows:

With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages. 

In Soulliere v. Robitaille Estate, 2013 ONSC 5073 (S.C.J.), the issue was whether a court may bifurcate a trial when one party does not consent.  The Court of Appeal held in Kovach (Litigation Guardian of) v. Linn 2010 ONCA 126 (C.A.) that a judge does not have the jurisdiction to bifurcate a jury trial when one party does not consent.  In Soulliere, however, the trial would be heard by judge alone.

Justice Smith held that r. 6.1.01 does not remove the Court's inherent jurisdiction to bifurcate a trial.  In keeping with the Court of Appeal's decision in Elcano Acceptance v. Richmond, Richmond, Stabler and Mills (1989), 55 O.R. (2d) 56 (C.A.), a Court may order bifurcation in the clearest of cases.  In the circumstances, Justice Smith declined to order bifurcation.  The case was not so exceptional as to warrant departure from the normal practice of hearing liability and damages together, and there was potential prejudice to the plaintiff if forced to wait.

Production of SIU Documents

When seeking production of documents from a non-party, it is important to remember that it is not sufficient to only show relevance; it must also be unfair to proceed to trial without the documents.

In Boucher (Litigation Guardian of) v. Charles, 2013 ONSC 3120 (S.C.J.), the plaintiffs brought a r. 30.10 motion to obtain documents from a non-party, the Special Investigations Unit (SIU).  The action arose out of an accident between a cyclist and a police motor vehicle.  The SIU conducted an investigation and concluded there were no grounds to lay criminal charges against the officer.

In a r. 30.10 motion for production of documents from a non-party, the moving party must satisfy a two-part test: 1) the document must be relevant to a material issue in the action and, 2) it would be unfair to proceed to trial without having discovery of the document.  The test sets a high bar and is permissive rather than mandatory (i.e. if it is met, the Court may order production).

The SIU conceded relevance of all of its documents except for statements from two civilian witnesses who did not witness the event.  Master McAfee held that the documents were relevant, but the plaintiffs were not able to meet the second part of the test.  The witnesses had not consented to release of their statements, and the statements of witnesses given to police officers had been produced in the police file.  Master McAfee also considered the public interest.  The efficacy of the SIU's investigative process and its ability to discharge its mandate depends on maintaining the confidence of witnesses. 

Master McAfee ordered production of a statement by a deceased witness as he would not be available to testify at trial or to provide consent to release the statement.  The plaintiffs were not able to show that they would be prejudiced by proceeding to trial without the remaining documents.

The Onus at Status Hearings

The decision of Master Hawkins in 1745361 Ontario Ltd. v. St. Paul's Investments, 2013 ONSC 4642 (S.C.J.) reminds us that the onus at a status hearing is on the plaintiff.

In this case, there was a delay of between 13 and 25 months, depending on whether or not the plaintiff had served an affidavit of documents (the parties disputed whether it had been served).  The plaintiff also failed to comply with the Master's Order that it deliver material for a status hearing.

Master Hawkins emphasized that Rule 48.14(13) places the onus on the plaintiff to persuade the court that the action should not be dismissed for delay.  The plaintiff must demonstrate that he, she or it has an acceptable explanation for the delay, and that if the action is allowed to proceed, the defendant will suffer no non-compensable prejudice.

The plaintiff's affidavit used at the status hearing provided no explanation for the delay and was silent on the issue of prejudice to the defendant.  On the contrary, the defendant delivered an affidavit setting out that two critical witnesses had disappeared.  Accordingly, the plaintiff had failed to discharge its onus under r. 48.14(13) and the action was dismissed.

Although the onus is on the plaintiff, one has to assume that the affidavit filed by the defendant setting out the prejudice it suffered as a result of the delay was helpful to the Court.

Excess Insurance

Excess insurers may be interested in the recently reported decision of ACE INA Insurance v. Associated Electric & Gas Insurance Services Ltd., [2012] O.J. No. 6500 (S.C.J.).

ACE insured Toronto Hydro, which was sued over an explosion that occurred in the underground parking of a high-rise apartment building.  AEGIS was the excess insurer.  Although there was no explicit duty to defend under the AEGIS policy, ACE brought an application that AEGIS had a duty to pay defence costs pursuant to the doctrine of equitable contribution.

The AEGIS policy was an "indemnity policy" rather than a "liability policy".  Under its policy, AEGIS limited its indemnity obligation where there is other insurance, and limited its duty to indemnify to defence costs incurred by the insured, not those incurred by a third-party such as ACE.  Defence counsel had been appointed by ACE rather than the insured.  AEGIS's obligation was only to indemnify defence costs at the end of the litigation, where the costs were not covered by other insurance.    

Justice C.J. Brown rejected the argument that AEGIS had an equitable duty to contribute to defence costs despite the clear wording of the policy.  There is no equitable obligation to defend where an excess policy precludes a duty to defend.  In addition, a relevant factor was that any defence costs paid by AEGIS would reduce the policy limits available to the insured so there was potential prejudice to Toronto Hydro. 

Expert Evidence at Trial

The Divisional Court has released an important decision with respect to expert evidence.  In Westerhof v. Gee (Estate), 2013 ONSC 2093 (Div. Ct.), a jury awarded the plaintiff $22,000 in general damages and $13,000 for loss of income.  The trial judge, however, dismissed the claim on the basis that it did not meet threshold.  The plaintiff appealed, arguing that the trial judge erred by restricting the plaintiff's expert witnesses.  A number of treating practitioners were not permitted to give evidence about diagnosis or prognosis, two accident benefits assessors were not permitted to give opinion evidence, a neurologist was not permitted to give evidence regarding psychiatric or psychological issues, and opinions contained in MRI reports were redacted.

The appeal was dismissed.  The Court discussed a number of cases dealing with r. 53.03 and r. 4.1.01, which provide a framework for the duties of experts.  The key distinction is whether the evidence is factual or opinion evidence; if it is opinion evidence, compliance with r. 53.03 is required.  As a result, it was correct for the trial judge to exclude the evidence.  A treating physician could offer evidence with respect to observations of the plaintiff or the treatment provided, but once such a witness seeks to offer opinions on the cause of the injury, its pathology or prognosis, the evidence enters into the realm of opinion evidence requiring compliance with r. 53.03.

Westerhof provides much-needed guidance regarding expert witnesses.  It will be interesting to see whether the number of treating practitioners testifying decreases as a result of the ruling.  The plaintiff's treating practitioners will now be held to a higher standard, and there may be an opening to argue that a practitioner is an advocate rather than impartial witness.

Failure to Submit Disability Certificate Disentitles Claimant to Accident Benefits

A recent arbitration decision confirmed the importance of a disability certificate in accident benefits cases.

In Anthonipillai v. Security National, FSCO A11-001168 (July 12, 2013), the applicant was injured in an accident on April 21, 2008.  Although the insurer requested she submit a completed disability certificate several times, she failed to do so until 3.5 years after the accident, after an arbitration pre-hearing.  Even when she did submit a disability certificate, it only addressed caregiver benefits and not housekeeping.  The applicant argued that by continuing to adjust the claim and pay benefits, the insurer waived the requirement for a disability certificate.

The Arbitrator held that the applicant was disentitled to housekeeping and home maintenance benefits as she never submitted a disability certificate.  The insurer did not waive the requirement for a disability certificate as it had an obligation to adjust the claim, even if the plaintiff had not complied with her obligation.  In addition, the treatment and assessments the insurer adjusted were applied for through OCF 18 and 22 forms, which contain the signature of a health professional confirming the information is accurate, the treatment reasonable and necessary and acknowledging that it is an offence to make a false statement.  The insurer was entitled to insist on the same assurances through a disability certificate relating to caregiving and housekeeping expenses.  In addition, the insurer was entitled to obtain s. 42 assessments, without being deemed to have waived compliance by the insured.

Second Defence Medical Ordered

In Galea v. Firsker, [2013] ONSC 1666 (S.C.J.), there is an interesting twist to the usual motion to compel the plaintiff to attend a second defence medical examination.

The plaintiff alleged soft tissue injuries.  The defendant's first defence medical with a neurologist was obtained prior to the plaintiff serving any reports.  After being served with reports by an orthopedic surgeon and a physiatrist, the defence sought to have the plaintiff examined by a physiatrist. 

McDermot J. ordered the plaintiff to attend the defence medical.  Even though there was an element of "buyer's remorse" in the defendant's request for a second assessment, denying the request would work an injustice, as the defendant would have no way to respond to the plaintiff's medical evidence.  The fact that there was no affidavit from the neurologist, there was no change in circumstances and there was a possibility the trial may have to be adjourned, the primary concern was trial fairness.

The decision in Galea seems to follow the recent case law where the emphasis is on trial fairness above other factors.

No Leave Required for Summary Judgment Motion After Set Down

Does a party that sets an action down require leave to bring a summary judgment motion?

According to Justice Quinn in Fruitland Juices Inc. v. Custom Farm Service Inc. 2012 ONSC 4902 (S.C.J.), no leave is required.

In Fruitland, the defendant brought a summary judgment motion after it set the action down for trial.  The plaintiff objected pursuant to r. 48.04(1).  Justice Quinn granted leave.  He held:

[28]   The requirement for a substantial and unexpected change in circumstances is not a helpful or logical test where the motion for which leave is requested seeks summary judgment. The primary purpose of such a motion is to spare the parties and the legal system the expense and intrusion of an unnecessary trial or, at least, unnecessary issues within the trial. A party is not obliged to bring a summary judgment motion at the earliest opportunity; neither must there be a precipitating event such as a change in circumstances. So long as the motion, if successful, will be less costly and time-consuming than the trial, and will not unduly delay the start of the trial, I do not see why the moving party must explain his or her choice of timing. In other motions (such as to add parties, raise new issues or amend pleadings), the explanation for a delay in so moving is relevant, as is the issue of prejudice to the opposing party. However, none of that is relevant or required in a motion for summary judgment, at least in the circumstances of this case. A summary judgment motion brought at any time is a potential blessing for the administration of justice.

Spoliation

For a recent summary of the doctrine of spoliation, see the decision in Stillwell v. World Kitchen, [2013] ONSC 3354 (S.C.J.).

The plaintiff brought an action against the manufacturer of a dutch oven that broke into four pieces as he was washing it, causing a severe laceration to his wrist.  The plaintiff told his wife to dispose of the product shortly after the incident.  He testified that he gave no thought to a lawsuit at the time; he simply did not want to see the pot when he returned home from surgery.

At trial, one of the issues was whether the jury should be charged on spoliation.  Justice Leach held he would not charge the jury on spoliation.  Spoliation gives rise to a rebuttable presumption of fact that the missing evidence, had it been preserved, would have been unfavourable to the party that destroyed it; however, an adverse inference does not arise merely because the evidence has been destroyed.  There must be intentional destruction in circumstances where it can reasonably be inferred that evidence was destroyed to affect the litigation.  There was no evidence that the plaintiff intentionally destroyed the dutch oven, so the doctrine of spoliation would not be put to the jury.

Settlement Privilege

The Supreme Court of Canada recently commented on Pierringer Agreements.  The issue was whether the non-settling defendants had the right to know the amount of the settlement between the plaintiff and settling defendants.

In Sable Offshore Energy Inc. v. Ameron International Corp. [2013] SCC 37, the plaintiff sued a number of defendants.  It entered into a Pierringer Agreement with several defendants and the non-settling defendants requested disclosure of the settlement amounts.  The non-settling defendants received all non-financial terms of the Agreement, had access to all relevant documents and other evidence in the settling defendants' hands and were assured that they would not be held liable for more than their share of damages.  In addition, the plaintiff agreed to provide the settlement amounts to the trial judge at the end of trial, so that if the non-settling defendants established a right to set-off, their liability for damages could be adjusted downwards. 

The Court held that the settlement amounts did not have to be disclosed to the non-settling defendants.  The amounts were protected by settlement privilege, which is a class privilege, meaning there is a prima facie presumption of inadmissibility.  The public interest in promoting settlement was greater than any prejudice to the non-settling defendants.  The Court rejected the argument that the non-settling defendants required knowledge of the settlement amounts to know and present their case, or to explore their own settlement possibilities.

It is clear that the Court highly values settlement and this decision aims to encourage settlement and the use of Pierringer Agreements in multi-party litigation.

Limitation Periods in Claims for Contribution and Indemnity

The Court of Appeal recently commented on limitation periods in claims for contribution and indemnify, clarifying that s. 18 of the Limitations Act imposes a two year limitation regardless if the claim is based in contract or tort.

In Canaccord Capital Corp. v. Roscoe, [2013] ONCA 378 (C.A.), the defendant was an investment advisor employed by the plaintiff, an investment dealer.  The employment agreement provided that the defendant would indemnify the company for any claim arising out of his acts or omissions in the course of his employment.  In 2008, two clients sued Canaccord and Roscoe for losses they sustained in an investment for which Roscoe was their advisor.  Canaccord filed a joint defence and did not crossclaim against Roscoe for indemnity.  The claim was settled in 2009 without Roscoe's involvement.  Canaccord issued a claim for indemnity in 2011, more than three years after the initial claim.  Roscoe brought a summary judgment motion on the basis that the limitation period had expired.  The motions judge held that that s. 18 of the Limitations Act does not apply to indemnity claims arising out of contract.  She held that the claim was not one for contribution and indemnity, but rather one of a breach of the employment contract.  She held the limitation began to run from the settlement date.

Roscoe appealed and the Court of Appeal allowed the appeal.  Section 18 refers to "wrongdoers", not just "tortfeasors" and so is broad enough to include claims arising out of contract.  The limitation began to run when Canaccord was served with the claim, and accordingly, the action was out of time.

Threshold Motion Successful

The defendants in a recent jury trial succeeded on a threshold motion.  In Ryckman v. Pottinger, 2013 ONSC 2857 (S.C.J.), the plaintiff had been in two motor vehicle accidents 11 months apart.  The plaintiff entered into a Pierringer Agreement with the first defendant and proceeded to trial against the second defendant.   The jury assessed global damages at $175,000 and the defendant at trial was responsible for 10% of the figure.  General damages would have been $3,500.

In granting the threshold motion, Justice Parayeski noted that an accident by accident analysis is required; just because a plaintiff met threshold in one case does not mean she will in another. Justice Parayeski inferred from the jury awards that they did not accept the submissions of the plaintiff as to her damages. It appeared the jury did not find the plaintiff credible. There was an observable difference between the plaintiff's appearance at court versus on surveillance. Ultimately, the damages awarded were so small as to lead to the conclusion that the plaintiff did not meet the threshold.  The second accident caused no more than a minor exacerbation of the injuries she sustained in the first accident.

Leave Required for Refusals Motion After Set Down

Does a party need leave to continue a refusals motion after it has set the action down?

In Jetport v. Jones Brown, 2013 ONSC 2740 (S.C.J.), the parties brought motions seeking answers to questions refused on examination for discovery.  Although the motions were commenced in May 2012, they were not completed and were adjourned to November 2012.  They were still not completed and further dates in April 2013 then October 2013 were scheduled.  In February 2013, trial was scheduled for May 2015.  

One of the issues on the motion was whether the plaintiff required leave to bring the motion pursuant to r. 48.04(1) since it had set the action down for trial.  The plaintiff argued that it did not require leave based on rule 48.04(2), which provides that r. 48.04(1) does not relieve a party from any obligation imposed by r. 31.07 (failure to answer on discovery).

Master Graham held that the plaintiff required leave.  There is no obligation on a party to answer questions refused on discovery and therefore a motion to compel answers does not fall within s. 48.04(2) so a party that has set the matter down must seek leave to initiate or continue a motion to compel answers to refusals. 

It appears there are two differing lines of case law on this issue.  Counsel should be cautious about setting an action down if there are outstanding refusals they wish to pursue.

Further Defence Medical Ordered After New Evidence Produced

In Low v. Clarke, [2013] OJ. No. 1703 (S.C.J.), the defendant brought a motion seeking to compel the plaintiff to attend a further defence medical with a neurologist.

The plaintiff was examined by a neurologist, Dr. Upton.  Following the examination, the plaintiff served over 400 photographs of the plaintiff post accident.  According to Justice Glithero, the photographs appeared to show the plaintiff in various physical activities that were inconsistent with what she had previously reported to doctors.  The defendant filed a letter by Dr. Upton stating that a further examination would be important and useful to his opinion at trial.

Justice Glithero cited with approval a number of factors from Bonello v. Taylor, 2010 ONSC 5723:

1.  The request may be legitimate where there is evidence the plaintiff's condition has changed or deteriorated.  Justice Glithero added to this factor: where new evidence is disclosed and is material to the opinion and to any proper assessment of the extent and nature of injuries sustained.
2.  Trial fairness should be the guiding principle.
3.  Ordering further examinations may be just where they are necessary to enable the defendant to fairly investigate and call reasonable responding evidence at trial.

Justice Glithero allowed the motion and ordered a further examination.  Although these types of motion are largely fact specific, it is important to remember the guiding principle of fairness when deciding what evidence to present to the court.

Are Judges Allowed to Plagarize?

The Supreme Court recently commented on how much copying judges are permitted to do in the course of their reasons.

In Cojocaru v. British Columbia Women's Hospital and Health, [2013] SCC 30, the trial judge incorporated large portions of the plaintiff's submissions into his reasons for judgment.  In fact, of 368 paragraphs in the judgment, only 47 were predominately the judge's own words.  The Court held that "while it is desirable that judges express their conclusions in their own words, incorporating substantial amounts of materials from submissions or other legal sources into reasons for judgment does not without more permit the decision to be set aside".  The judgment will only be set aside if a reasonable person would conclude that the judge did not put his or her mind to the issues and decide them independently and impartially.  The Court held that the decision should not be set aside.  The key factors appear to be that the judge did not accept all of the plaintiff's submissions, discussed a number of issues and stated his conclusion in his own words.

Litigation Privilege Protects Adjuster's File

When does litigation privilege arise in tort claims?

Panetta v. Retrocom, 2013 ONSC 2386 (S.C.J.)

In this slip and fall action, there was a question of whether litigation privilege applied to an investigation done by an adjuster prior to defence counsel being appointed.  The plaintiff fell in a Wal-mart parking lot and an incident report was prepared.  A few weeks later, an adjuster retained by Wal-mart's insurers wrote to the landlord of the premises advising it of the incident.  The plaintiff sought production of the adjuster's notes, file and reports, on the basis that litigation privilege had not yet arisen at the time they were created/obtained.

Justice Quinn held that the notes were privileged:

[61]   I think that, in third-party or tort claims (as opposed to claims by an insured against his or her own insurer), there is no preliminary investigative phase where privilege does not attach to notes, reports and files of adjusters. In third-party insurance claims, the sole reason for any investigation by or on behalf of an insurer is because of the prospect of litigation. It is naive to think otherwise; and the fact that the investigation may be used to arrive at a pre-lawsuit settlement does not detract from the point that I make. The prospect of litigation inherently includes the prospect of settlement.

When the adjusters were retained to conduct their investigation on behalf of Wal-mart's insurer, the sole purpose of any documents they created was in anticipation of litigation.  The decision provides a helpful summary of the case law regarding litigation privilege (and as an added bonus, a nice example of Justice Quinn's sense of humour). 

Limitation Periods in Duty to Defend or Indemnify Cases

When does the limitation period begin to run in duty to defend or duty to indemnify cases?

In Georgian Downs Ltd. v. State Farm Fire and Casualty Co., 2013 ONSC 2110 (S.C.J.), the applicant sought an Order compelling State Farm to pay its defence costs.  Georgian was a defendant in a slip and fall action, and State Farm insured Georgian's winter maintenance contractor.  Georgian was added as an additional insured to the contractor's policy.  The underlying claim was ultimately settled on the basis of the contractor's admission of liability.

One of the issues was when the limitation period began to run.  Although counsel exchanged correspondence back and forth about defence costs, there was no clear and unequivocal denial of Georgian's request for defence costs.

Justice Mulligan held that "when there is an absence of a clear and unequivocal denial of a duty to defend or a duty to indemnify, a limitation period commences on the day of judgment or settlement."  Using such an interpretation promotes certainly, since it fixes a readily ascertainable date, rather than being dependent on subjective questions of discoverability.

Presumably, if the facts were different and State Farm had clearly denied the request to pay defence costs, the limitation period would have commenced at that time.

Insurer Obligated to Continue Paying Defence Costs

Jevco v. Malaviya,2013 ONSC 675 (S.C.J.).

Malaviya was insured under a Standard Automobile Policy (SAP) with Jevco for the minimum liability limit of $200,000.  He was sued following an accident in 2005. The insurer paid the limits of its policy, then sought a declaration that it had no continuing duty to indemnify or defend Malaviya.  The contentious issue on the application was whether Jevco was obliged to continue paying the insured’s defence costs.

Justice Morgan described the wording of the SAP as “muddled and contradictory”.  It failed to clearly answer whether the insured would pay the insured’s legal costs above and beyond the coverage limit.  On the other hand, s. 245(b) of the Insurance Act provides that the insurer shall bear the defence costs of a claim.  There is no limiting language in s. 245.  As a result, the insurer is obligated to continue paying defence costs of the insured, even when there is no further duty to indemnify. 

The  SAP may have to be modified in order to avoid this situation from arising in the future.

Action Against Municipality Dismissed for Failing to Give Notice

In August of last year, we reported on Argue v. Tay (Township), in which the action was dismissed for the failure to give notice required by s. 44(10) of the Municipal Act.  The plaintiff argued that the municipality had actual or constructive knowledge of the accident because the municipal fire department attended the scene.  The matter was appealed to the Court of Appeal, which has now dismissed the appeal at 2013 ONCA 247 (CanLii).

The Court of Appeal confirmed that the plaintiff had the onus of establishing that she had a reasonable excuse for not providing notice and that the municipality was not prejudiced.  The motions judge held that she failed to meet her onus.  The Court of Appeal found no error in the motion judge's analysis or his application of the relevant principles.

This is an extremely helpful decision in cases where the plaintiff has failed to provide notice to the Municipality.

City Not Liable for Icy Boulevard

The City of London has successfully defended a slip and fall action that occurred following a winter storm.  In Bondy v. London (City), [2013] O.J. No. 1281 (S.C.J.), the plaintiff slipped and fell on the paved portion of the boulevard abutting the city sidewalk, which was used to access her driveway. The night before the plaintiff fell there was a heavy freezing rain storm, which continued throughout the night and into the morning.  Schools were closed and radio announcements recommended citizens stay off roads and sidewalks. The adjacent property owned salted the sidewalk but not the boulevard. The City decided to call in its sidewalk equipment operators at midnight and they were deployed at 4:30 a.m.  In the area of the plaintiff's fall, operators were deployed from 7:30 a.m. to 5:30 p.m., with the route taking 12-14 hours to complete.

The case involved a number of issues, including whether the boulevard qualified as an untravelled portion of the highway, whether adjacent property owner was liable for failing to salt the boulevard, whether the Municipal Act or Occupier's Liability Act applied, and the standard of care for the municipality.  Justice Gorman held that the boulevard was not part of the untravelled portion of the highway.  In addition, the City could not deflect liability onto the adjacent property owner in the circumstances, as they did not exercise control over the area.

Ultimately, Justice Gorman held that the City had met its standard of care.  It had complied with the Minimum Maintenance Standards for icy roadways. The plaintiff was entitled to expect a highway to be in a good condition, but "when the weather is so treacherous as to require the broadcast of public warnings, one travels at one's peril". Although the action was dismissed, the decision that the boulevard was not part of the untravelled portion of the highway poses a problem: are municipalities now expected to salt these areas?

The Agony of the Collision

A recent motion decision dealt with the standard of care in emergency situations.

In Dubois v. Ford Credit Canada Leasing, 2012 ONSC 7311 (S.C.J.), the plaintiff was a passenger in a vehicle being driven by Gunn.  An oncoming vehicle crossed into Gunn's lane and he swerved left to avoid the accident.  Unfortunately, the other driver also swerved and they collided.

Gunn brought a motion for summary judgment on the basis that his actions occurred in an emergency situation and he was not negligent on the basis of the "agony of the collision" principle.  Justice Spence reviewed three formulations of the test for negligence in an emergency:

1.  Which focuses on whether the driver was driving with the skill and care expected of a reasonable driver at the time and place in issue;
2.  Which provides that the driver has a duty to extricate himself and his passengers from the situation with safety if possible, but his conduct is not to be judged by the standards involving deliberation and the opportunity for careful and conscious decision.  He is not negligent for failing to adopt the best course of action in the light of hindsight;
3.  Which provides that if driver A loses control and seeks to apportion blame on B, A must show that B became aware or should have become aware and had an opportunity to avoid the accident.

Justice Spence concluded:

[39]  The conclusion to be drawn from the above analysis is that the test to be applied is properly set out in the first formulation on the understanding that, as emphasized in the second formulation, a driver in the “agony of a collision” generated by an emergency, may properly be considered to have acted reasonably even though his conduct might not be considered reasonable if it had occurred in circumstances that offered a reasonable time for decision.

Justice Spence dismissed the motion for summary judgment, as there were competing expert opinions and the potential for unfairness to the plaintiff, who was an innocent passenger. Although the decision is an interesting summary of the "agony of the collision" principles, it also imports a fairness component, which introduces a new factor in the analysis.

Causation and Insurance Broker Negligence

The Ontario Court of Appeal recently commented on one of the leading cases pertaining to insurance broker negligence, Fletcher v. Manitoba Public Insurance Company, [1990] 3 S.C.R. 191.  

In Zefferino v. Meloche Monnex Insurance Company, 2013 ONCA 127 (C.A.), the plaintiff sued his insurance company alleging that the insurer should have offered him optional income replacement benefits, and claiming a loss of IRBs which should have been available to him. The plaintiff argued that the ratio in Fletcher did not require a plaintiff to prove that the acts or omissions of the insurer caused the loss, but rather only that the insurer had a duty to inform the insured, that it breached its duty of care and that there was a gap in coverage. 

The Court of Appeal held that a plaintiff is not relieved of the normal burden of proof in an insurance broker context and must show causation.  There was no evidence to prove that Zefferino would have purchased optional insurance coverage other than a bald and self-serving assertion, and therefore his action failed.   

Videotaping Examinations for Discovery

In what circumstances will a court permit examinations for discovery to be videotaped?

J.M. v. Clouthier, 2013 ONSC 155 (S.C.J.)

This action arose out of allegations of historical sexual assault.  The defendant was in his 70s and had diabetes and high blood pressure, although he submitted evidence that he had no current health issues.  The plaintiff wished to videotape the defendant's examination for use at trial in case the defendant was not available to testify by the time of trial.  The defendant argued that the dynamic of the examination for discovery would change, forcing him to incur more cost in preparation time, and the editing and splicing of video to be shown at trial could be prejudicial to him.
The motion was brought under r. 34.19, which permits pre-trial examinations by videotape "by order of the court", rather than r. 36, which permits evidence to be taken de bene esse.  A witness examined under r. 36 may be examined, cross-examined and re-examined in the same manner as a witness at trial. 
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.


Justice Hennessy allowed the motion.  Technical issues could be dealt with by the trial judge. The Court was not convinced there would be substantially more time or cost involved in videotaping the examination, and the video could be useful in terms of showing documents, photographs or charts.  There was a higher than normal probability that the defendant would not be available at trial given his age and health status.  The video was permitted under r. 34 rather than r. 36. 

Amendments to the Minimum Maintenance Standards - Part 6

This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.

Part 6:  Sidewalks

The MMS were amended in February 2010 to require annual inspections of sidewalks for surface discontinuities and required treatment of surface discontinuities that exceeded two centimetres.  The standard has been amended to expressly provide that a surface discontinuity is deemed to be in a state of repair if it is less than or equal to two centimetres.  The standard also provides that sidewalks are deemed to be in a state of repair between annual inspections, provided that the municipality does not acquire actual knowledge of a surface discontinuity in excess of two centimetres.  It will be interesting to see the extent to which the constructive knowledge provision is applied in sidewalk cases.

Amendments to the Minimum Maintenance Standards - Part 5

This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.

Part 5:  New Ice Formation and Icy Roadways Standard

The MMS previously required municipalities to treat icy roadways within a prescribed time after becoming aware that the road was icy.  This remains the standard for roads that have become icy but is now part of a larger, more comprehensive standard for ice prevention and treatment. 

The standard for prevention of ice formation requires municipalities to monitor the weather and patrol as described above.  If, as a result of these activities, a municipality determines that there is a substantial probability of ice forming on a roadway, it must treat the road to prevent ice formation within a specified time, starting from the time it determines is appropriate to deploy resources for that purpose.  Treating a road means applying material, including but not limited to salt, sand or a combination. 

The ice prevention standard provides that roads are deemed to be in a state of repair until the time that the municipality becomes aware that the roadway is icy or the applicable time for ice prevention expires, whichever is earlier.  This should be read in conjunction with the constructive knowledge provision.  The icy roadways standard has also been amended to provide that roads are deemed to be in a state of repair until the applicable time for treatment expires.

As with the snow accumulation standard, the ice prevention standard is a response to the narrow interpretation of the icy roadways standard in Giuliani.  The discretion afforded to municipalities to determine when to deploy resources to prevent ice formation may be subject to challenge in future claims.  Nonetheless, compliance with the standard will assist in defending claims where it is alleged that a municipality failed to anticipate icy road conditions.

Amendments to the Minimum Maintenance Standards - Part 4

This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.

Part 4:  New Snow Accumulation Standard

The MMS previously required municipalities to clear snow within a prescribed number of hours after becoming aware of the fact that specified snow accumulation depths were reached.  This part of the standard is essentially unchanged, though it now requires municipalities to “address” snow accumulation and “reduce the snow depth” rather than “clear” the snow.   

However, there have been several additions to the standard.  The most significant addition is a provision which states that if the depth of snow accumulation on a roadway is less than or equal to the specified depth for that class of roadway, “the roadway is deemed to be in a state of repair with respect to snow accumulation”.  This provision is clearly intended to address the restrictive interpretation of the snow accumulation standard in Giuliani and should provide municipalities with a strong defence in cases where the standard is met.  The standard also sets out how the depth of snow accumulation on a roadway may be determined and how it may be addressed. 

The requirement that municipalities address snow accumulation after becoming aware of it must be read in conjunction with the constructive knowledge provision in section 1 of the MMS, which provides that a municipality is deemed to be aware of a fact if circumstances are such that the municipality ought reasonably to be aware of the fact.

Amendments to the Minimum Maintenance Standards - Part 3

This week we continue our review of the amendments to the Minimum Maintenance Standards, which came into effect on January 25, 2013.

Part 3:  New Patrolling Requirements

The MMS previously required routine road patrols and, during the winter maintenance season, required additional patrols of representative highways, as necessary, to check for snow and ice.  There has been no change to the routine patrolling requirement but the MMS now provide that if the weather monitoring discussed above indicates that there is a substantial probability of snow accumulation, ice formation or icy roadways, then municipalities must patrol representative highways, at intervals deemed necessary by the municipality, to check for snow and ice.  There is no change to the provision describing what patrolling consists of and by whom it can be done. 

Amendments to the Minimum Maintenance Standards - Part 2

This week we continue our review of the amendments to the Minimum Maintenance Standards which came into effect on January 25, 2013.

Part 2: New Requirement to Monitor Weather

The MMS did not previously require weather monitoring, although municipalities generally did so as part of winter maintenance operations.  The MMS now require municipalities to monitor the weather, both current and forecast for the next 24 hours.  From October 1 to April 30, weather must be monitored three or more times per day, at intervals determined by the municipality.  From May 1 to September 30, weather must be monitored once per day.  This amendment is clearly a response to Giuliani, in which the municipality was faulted for failing to monitor the weather and deploy resources in time to avoid the formation of ice on the road. 

The MMS definition of weather as “air temperature, wind and precipitation” tells municipalities what to monitor but the MMS do not state how this is to be done.  In addition, the MMS allow municipalities to determine the intervals at which the weather is monitored.  While these factors will allow monitoring systems to reflect local conditions, including budgetary constraints, we can expect to see claims challenging municipal decisions about the intervals at which weather is monitored and the methods used to do so.

Amendments to the Minimum Maintenance Standards - Part 1

The Minimum Maintenance Standards under the Municipal Act, 2001 were amended by Ontario Regulation 47/13, which came into effect on January 25, 2013.  Many of the amendments are a response to the Court of Appeal decision in Giuliani v. Halton (Regional Municipality), [2011] O.J. No. 5845 (C.A.) in which the court’s interpretation of the snow clearing and icy roadways standards limited their use as a defence to civil actions.  The amendments also provide more specific guidance to municipalities whose systems of winter road maintenance are based on the Minimum Maintenance Standards.  

In our next series of posts, we will be reviewing the changes to the MMS.

 

Part 1: New Definitions Added to Section 1

 

Section 1 of the MMS now contains the following definitions:

• “Ice” is defined as “all kinds of ice, however formed”.  Ice was not previously defined.
• “Snow accumulation” is defined as the natural accumulation of newly-fallen snow, wind-blown snow and/or slush that covers more than half a lane width of a roadway.  This definition was previously contained in the snow accumulation standard in section 4 of the MMS, which has been replaced as discussed below.
• “Substantial probability” is defined as “a significant likelihood considerably in excess of 51 per cent”.  This definition relates to patrols and maintenance activities that are done in anticipation of snow accumulation or ice formation, discussed below.  This definition may be the subject of debate in future civil cases, as it does not specify how much more than 51 per cent is “considerably in excess”.
• “Weather” is defined as “air temperature, wind and precipitation”.  Weather was not previously defined.