Renter’s Insurer is First to Respond, Even if Only a Third Party

A recent decision of the Ontario Superior Court of Justice provides guidance as to whose insurer must respond first to a plaintiff’s claim in motor vehicle accidents involving rented or leased automobiles.

In Elias v. Koochek, 2014 ONSC No. 5003 (S.C.J.), the Court heard a motion involving a rental car accident. The passengers of the car brought a lawsuit naming the uninsured driver of the car (Koochek) and the owner of the car (Aviscar) as defendants. Aviscar then brought a third party claim against the renter of the car (Moshe). The court was asked to determine whether the renter’s insurer was required to respond first to the plaintiff’s claim.

In order to answer this question the court looked to section 277(1.1) of the Insurance Act and the corresponding provisions of the Ontario Automobile Policy. Section 277(1.1) provides for the priority in which available insurance policies are to respond to liability from the ownership or operation of a leased (rented) automobile. It states that the lessee’s (renter’s) policy is to respond first, followed by the driver’s policy and then the owner’s policy. This is an exception to the general rule in motor vehicle accidents that the owner’s policy is to respond first.

The renter argued that his insurance was not “available” because he was not named as a defendant in the main action. The court disagreed, and stated that making the availability of the renter’s policy dependant on whether the renter was named as a defendant or a third party would lead to inconsistent results and subvert the legislative intent behind section 277(1.1). The court said that while a claim does need to be made against the renter in order to trigger the availability of their insurance under 277(1.1), the procedural manner of pleading by which this claim is made is not relevant.

As such, the court found that the renter’s insurer did need to respond first to the plaintiff’s claim.

Changes to the Rules of Civil Procedure

The Rules of Civil Procedure are being amended as of January 1, 2015.  Included in the amendments are changes to r. 48.

Currently, r. 48.14 provides that if an action has not been placed on the trial list within two years after the first defence is filed, the Registrar will issue a status notice providing that the action will be dismissed in 90 days.

The new rule provides that the Registrar shall dismiss the action for delay if:

(a) The action has not been set down or terminated by the later of five years after its commencement or January 1, 2017; or
(b) The action was struck from the trial list and has not been restored to the trial list by the later of  two years of being struck or January 1, 2017.

If a status hearing was scheduled before January 1, 2015, the old rule continues to apply.

These amendments will likely help to avoid many motions that were necessary to either avoid a dismissal or to set aside an administrative dismissal.

City Not Liable for Icy Boulevard

In 2013, we blogged on a decision by Justice Gorman dismissing a claim where the plaintiff fell on a sloped boulevard between the street and the sidewalk, Bondy v. London.  The link to the blog post can be found here.  The plaintiff appealed the decision.

The Court of Appeal dismissed the appeal, at 2014 ONCA 291 (C.A.).  The parties agreed that the boulevard was a "highway" within the meaning of the Municipal Act.  The Court of Appeal held that the highest standard to which the area needed to be maintained was as a highway for vehicles, not as a passageway for pedestrian traffic. 

The plaintiff argued on appeal that because from time to time people cross the road in the middle between intersections, it creates a special circumstance that elevates the standard of maintenance.  The Court of Appeal disagreed, holding that "The fact that people may cross at undesignated places on a road does not create or impose on the Municipality a higher level of maintenance obligation."  There were also no special circumstances that created an obligation on the adjacent property owner to maintain the boulevard.

Municipal Toboganning Case Dismissed

The Municipality of Leamington recently successfully defended a case where the plaintiff alleged she was injured tobogganing.  In De Cou v. Leamington, 2014 ONSC 6044 (S.C.J.), the plaintiff was injured while sledding down a hill in a park run by Leamington.  Although the Town was aware that people used the hill, there had been no complaints about it.  The plaintiff was 29 years old and had been sledding on the hill since she was 5.  The Town did not maintain the park in the winter.

Justice Carey held that there was no breach of the duty of care.  The plaintiff willingly assumed the risk.  Justice Carey held that "Going down a snow covered hill in February  on a light piece of material (be it plastic, cardboard, Styrofoam or wood) is a typical Canadian winter experience.  Falling off a sled is also part of that experience."  There was no causal link between the Town's failure to supervise or inspect the hill and the plaintiff's injuries.  The case was dismissed.

Court of Appeal Upholds $1.1 Million Jury Award

The Court of Appeal has upheld a $1.1 million damages award in a product liability case heard by a jury.

In Stilwell v. World Kitchen, 2014 ONCA 770 (C.A.), the plaintiff injured his hand when a glass pot broke while he was cleaning it.  The jury found the defendant 75% at fault and the plaintiff 25%.  Particulars of negligence included not identifying when the customer should contact the manufacturer and the warning on the box being inadequate. The jury assessed damages at $1,132,850 including $25,000 in aggravated damages.

The Court of Appeal upheld the award except for the aggravated damages.  It held that the standard of review of a jury verdict is "exceptionally high" and a jury's verdict should only be set aside where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict.  Additionally, a jury's verdict is entitled to a fair and liberal interpretation in light of the evidence and the circumstances.  In the circumstances, there was an evidentiary basis for the jury's conclusion.

The aggravated damages award was set aside as the judge failed to advise the jury that, in order to award such damages, they had to be satisfied that any increased injury to the plaintiff had to be a result of particularly reprehensible conduct by the defendant.

This case is a good example of the high threshold a party faces in attempting to overturn a jury verdict.

No Rebuttable Presumption in Section 4 of the Occupier's Liability Act

Section 4 of the Occupier's Liability Act creates a lower standard of care where premises are "recreational trails reasonably marked as such".  A person who enters such premises is deemed to have willingly assumed all risks.  The Divisional Court has confirmed that the purpose of s. 4 is to reduce the duty of care owed by certain occupiers and attempts to thwart the legislation will not be permitted.

In Cotnam v. National Capital Commission, 2014 ONSC 3614 (Div. Ct.), the plaintiff was injured while biking on a recreational pathway.  The Commission brought a motion for summary judgment.  The motions judge dismissed the motion on the basis that there was a rebuttable presumption the plaintiff could advance at trial to dislodge the lower standard of care contained in s. 4. 

The Divisional Court disagreed.  The purpose of s. 4 is to reduce the duty of care owed by occupiers of recreational lands.  If the motion judge's decision was allowed to stand, it would undermine the purpose of s. 4.  Acting in reckless disregard of the presence of a person means "doing or omitting to do something which he or she should recognize as likely to cause damage or injury to the person present on his or her premises and not caring whether such damage or injury result".  There was no evidence the Commission acted in that manner, and in fact, there was evidence the Commission took some steps for the safety of users of the trial.

The Divisional Court allowed the appeal and dismissed the action.

The Importance of Clarity in Making Rule 49 Offers

The law with respect to r. 49 offers is increasingly complicated.  It is important for offers to be clear in order to benefit from the provisions of r. 49.  At the same time, even if an offer does not qualify as a r. 49 offer, it can be taken into consideration when a court is deciding costs.

In Elbakhiet v. Palmer, 2014 ONCA 544 (C.A.), the plaintiffs sought damages of almost $2 million dollars.  After a jury trial, they were awarded $144,013.07.  The plaintiffs made one offer of $600,000 plus costs.  The defendants made two offers, the second of which was $145,000 plus pre-judgment interest in accordance with the Courts of Justice Act plus costs.

One of the issues at the Court of Appeal was whether the defendants obtained a judgment as favourable or less favourable than their offer.  The defendants’ position was that the offer was intended to mean PJI of 5% on the entire offer (which would mean the offer exceeded the judgment).  The trial judge held that it was not clear that there was a uniform practice that 5% would be applied to the entire offer, and different rates of interest could apply to different heads of damages.  She held the defendants had not beat their offer and ordered the defendants to pay costs of almost $580,000.

The Court of Appeal held that there is no evidence of a general understanding that 5% would apply to the entire offer.  At the same time, the trial judge failed to give proper consideration to r. 49.13 which permits the court to exercise discretion and take into account any offers made.  Since the offer to settle was virtually the same as the judgment, the trial judge should have taken r. 49.13 into account.  She erred in failing to do so.

The Court of Appeal held that “it was not fair and reasonable to award the [plaintiffs] costs of almost $580,000 for a claim the jury valued at just under $145,000”.  It allowed the appeal and reduced the costs payable to the plaintiffs to $100,000. 

The Importance of Certainty When Pursuing the Deduction of Collateral Benefits

The jury in Gilbert v. South et al., 2014 ONSC 3485 (CanLII), awarded the plaintiff general damages, future care costs and damages for past and future income loss and loss of housekeeping.

The plaintiff had been injured in a motor vehicle accident in 2010. The plaintiff’s injuries were non-catastrophic. He was entitled to certain statutory accident benefits including up to $100,000 for medical and rehabilitation, subject to a 10-year time period.

The plaintiff had received some medical benefits totalling $14,822.50 and housekeeping benefits totaling $14,822.50. The plaintiff had neither applied for nor received income replacement benefits or attendant care benefits and the time period to receive same had expired. The time period had also expired for the plaintiff to receive future housekeeping benefits. The defendant did not seek relief in relation to the benefits that may have been available to the plaintiff but were not pursued.

Prior to judgment being formally entered, the defendant brought a motion seeking various forms of relief relating to “certain future statutory accident benefits and other collateral benefits” received or to be received by the plaintiff.

The defendant relied on s.267.8 of the Insurance Act which in certain prescribed circumstances imposes trust, payment and assignment obligations on plaintiffs who in motor vehicle accident cases obtain certain types of litigated recovery for losses which also may be addressed by certain collateral benefits (para 8).

Justice Leach set out the general principals relating to the application of this section, including the following (pars 9):

·         the object of these provisions is to prevent “double recovery” by the plaintiff. The provisions assume that the plaintiff has obtained, through litigation, damages covering the same loss otherwise covered by the collateral benefits;

 

·         concern of double-recovery is balanced by concern that a plaintiff should receive full compensation and not recover less than that to which he is entitled. Statutory provisions of this nature are strictly interpreted and applied;

 

·         deductions from a plaintiff’s damage award to prevent double-recovery will be made only if it is absolutely clear that the plaintiff’s entitlement to such collateral benefits is certain, and the plaintiff received compensation for the same benefits in the tort judgment. Evidence of “likelihood” and “probability” is not enough to warrant a deduction. A “very strict onus of proof” applies in relation to such matters, and it must be “patently clear” that the preconditions for an appropriate deduction have been established.

Justice Leach held that there were too many uncertainties as to entitlement and overlap to grant the relief requested and the defendant’s motion was denied. There was no evidence as to the total amount or the nature of statutory accident benefits the plaintiff would definitely receive.

A further obstacle to the relief requested by the defendant was that the jury awarded the plaintiff $57,250.00 for “future care costs” but the jury did not indicate, and was not asked to indicate, the extent to which any of this amount was allocated to the time period during which the plaintiff may be entitled to medical and rehabilitation benefits. Of importance, Justice Leach notes that this uncertainty may have been avoided by the posing of more specific questions to the jury.

This decision stresses the importance of quantifying future entitlement to collateral benefits in advance of trial and the importance of taking care to ask the necessary questions of the jury in order to identify any overlap between the tort award and collateral benefits.

The Test to Determine Whether an Insured "Permitted" the Unauthorized use of a Motor Vehicle

A recent decision looked at the test to determine whether an insured permitted someone else to drive his vehicle when she was not authorized to do so.

In O’Connell v.Personal Insurance Co., (2014 ONSC 1469 (S.C.J.), the insured let his girlfriend borrow his motor vehicle. The insured’s girlfriend was involved in an accident. It turned out that the insured’s girlfriend only had a G1 license and therefore she was not authorized to drive alone or on a 400 series highway, where the accident occurred. The insured stated that he had assumed his girlfriend had a full license. At trial, the insured’s girlfriend testified that she had not told the plaintiff that she did not had have a full license because she was embarrassed. The insurer denied a defence and indemnity on the bases that the insured had breached statutory condition 4(1) of the Ontario Regulation 777/93 and section 1.4.5 of the OAP, by allowing someone else to drive his vehicle when they are not authorized to do so.

The court held that the insured had not “permitted” his girlfriend to drive when she was not authorized to do so. In reaching this conclusion, the court held that the test to determine whether an insured permitted the use of their vehicle by an unauthorized driver is whether the insured took all reasonable and prudent precautions to see that the statutory condition was not contravened. The court held that the insured knew his girlfriend had a driver`s license and it looked the same has his full G license, he had heard her anecdotes involving driving in the past and she had never told him that she only had a G1 license. Given this, the court held that the insured acted as reasonably and prudently as an average individual in similar circumstances, the statutory condition was not breached and the insurer was bound to defend and indemnify the insured.

"Buyer's Remorse" Does Not Entitle Plaintiff to Rescind Settlement

In almost every settlement, there is an element of compromise.  In some cases, there is "settlor's remorse" and one of the parties tries to rescind the agreement.  Fortunately, the courts generally hold litigants to their bargains.

An example is Morant v. Sun Life Assurance Company of Canada, 2014 ONSC 2876 (S.C.J.).  The parties attended a mediation where they reached a settlement.  Approximately two weeks letter, the plaintiff's counsel wrote advising his client wished to resile from the settlement and would bring a motion to set it aside.  Plaintiff's counsel filed an affidavit deposing that at the time of the settlement, the plaintiff was in emotional and physical pain, extremely fatigued and felt unduly stressed and pressured.  The plaintiff herself did not file an affidavit.

Justice Daly dismissed the motion to set aside the settlement.  Justice Daley held that as a general rule parties are held to their agreements, although there are certain situations where courts may exercise discretion not to enforce a settlement: 

[34]           As a general rule parties are to be held to their bargains and to settlements which they negotiate and conclude. The court may exercise its discretion not to enforce the terms of a settlement where there is evidence that:

(a)               the resulting agreement and settlement was unconscionable, fraudulent or based on a party’s misapprehension of a material fact which was known to the opposite party;

(b)               the solicitor representing the party was not retained or did not have authority to settle the action and this limitation was known to the opposite party; and

(c)               the party lacked the legal or mental capacity to enter into the settlement agreement at the material time.

In the circumstances, there was no evidence that counsel did not have authority, that the plaintiff lacked capacity or that the settlement was unconscionable.  At most, the plaintiff's evidence was that she had a change of heart or "buyer's remorse", which does not constitute proper grounds for setting aside a settlement.

Automatic Renewal Section of Policy Does Not Obligate Insurer to Renew

Does an "automatic renewal" section in a home owner's policy require the insurer to renew?  A recent decision says "no".

In Merei v. State Farm Fire and Casualty Company, 2014 ONSC 1960 (S.C.J.), the plaintiffs' home was destroyed by fire eight days after their home insurance policy was cancelled.  The insurer's underwriting department made the decision not to renew the policy after the plaintiffs made three claims and had a history of non-payment.  The policy contained the following clause:

Automatic Renewal – if the policy period is shown as 12 months, this policy will be renewed automatically subject to the premiums, rules and forms in effect for each succeeding policy period. If this policy is terminated, we will give you and the Mortgagee/Lienholder written notice in compliance with the policy provisions or as required by law.

The plaintiffs alleged that the "automatic renewal" section of their policy obligated the insurer to renew the policy as they were not in arrears, not in breach of any of the rules in the policy and had submitted all forms.

The Court disagreed, relying on the plain reading of the contract (and common sense).  Justice Carey held that the policy was intended to allow for a renewal of the policy when the policy has not been cancelled.  He stated, "It is contrary to all rules of interpretation and normal insurance practice to conclude the insurer intended that they could only cancel the policy if the policy was not in good standing". 

Owner of Vehicle Not Protected Under the Workplace Safety and Insurance Act

A recent Superior Court decision highlights the interplay of the Workplace Safety and Insurance Act with the Highway Traffic Act.

In Maria-Antony v. Selliah, 2014 ONSC 4264 (S.C.J.), the plaintiff was injured in a motor vehicle accident involving a tractor-trailer owned by FTI.  At the time of the accident both the plaintiff and the defendant driver (Selliah) were employed as transport truck drivers for 1362038 Ontario.  They had been contracted to carry cargo for 1323109 Ontario. 

A right to sue application was brought before the Workplace Safety and Insurance Appeals Tribunal.  The tribunal held that plaintiff's action against Selliah and the numbered companies was barred.  Since FTI was not an employer, the action against it as owner was not barred.

FTI brought a summary judgment motion to have the action against it dismissed, taking the position that the result of the Tribunal decision was to make any liability to the plaintiff several (not joint and several), thereby limiting liability to its own negligence.  There was no evidence of negligence by FTI; the claim was based on its status as owner of the vehicle.

O'Marra J. dismissed the motion.  Section 192 of the Highway Traffic Act which imposes vicarious liability on the owner of a vehicle for the actions of the driver, and so FTI remained liable for the acts of the driver.  Even though the action against Selliah was barred, FTI did not enjoy the statutory protection under the WSIA.

It seems that this decision allows plaintiffs to do indirectly what they cannot do directly: recover damages based on the negligence of a protected worker.

Facebook Usage History Ordered Produced

Social media can be a useful investigative tool for defendants.  In an interesting twist, a Nova Scotia court has ordered the plaintiff's Facebook usage history produced.

In Conrod v. Caverley, 2014 NSSC 35 (S.C.), the plaintiff claimed she sustained injuries in a motor vehicle accident that compromised her ability to work and participate in recreational and social activities.  She complained of problems that limited the time she is able to spend using websites like Facebook.  The Nova Scotia Rules require "relevant" documents be produced.

Although Justice McDougall was not prepared to order production of the plaintiff's private portion of her Facebook account, he was satisfied the usage records were relevant and ordered they be produced:

[55]         I am satisfied that the Facebook usage data requested by the Defendants is relevant to whether Ms. Conrod's injuries have affected her ability to concentrate and the information should be produced.   The privacy interests implicated in this case are far less significant than in Laushway and Bishop where production of a party's entire hard drive was ordered so that evidence could be extracted by a third party.  The usage records sought by the Defendants can be easily obtained by Ms. Conrod and the contents will not reveal any potentially sensitive personal information about her internet activity such as websites she visits or private conversations she participates in on the internet.

Last week, we blogged about a summary judgment decision dismissing an occupier's liability claim.  This week, our focus is on a slip and fall action that was dismissed at trial.  Once again, the Court confirms that occupiers are not held to standards of protection and what is reasonable depends on the circumstances.

In Souliere v. Casino Niagara, 2014 ONSC 1915 (S.C.J.), the plaintiff slipped and fell in a buffet restaurant.  A staff member saw another patron drop a brown liquid substance, then seconds later the plaintiff fell in that approximate area.

There was no one employee responsible for cleaning floors or inspection, but rather all employees were trained to be on the lookout.  There was no policy of regular cleaning although floors were cleaned at night after the restaurant closed.

Justice Henderson held that the Casino met its duty of care.  The liability analysis in occupier's liability cases is fact driven and varies from case to case.  It revolves around issues of whether the occupier had reasonable policies and procedures in place for the inspection and maintenance of the premises, and whether those policies and procedures were actually followed.  Although there was no evidence the policy was being followed, the evidence was the floor was clean so the policy was working reasonably well.

Slip and Fall Action Dismissed on Summary Judgment Motion

In Occupier's Liability cases, it is important to remember that occupiers are not insurers.

In Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 (S.C.J.), the plaintiff alleged she fell on debris on the stairs in a subway station.  At her examination for discovery she testified she slipped on floor tiles.  She could not describe what she fell on and there were no witnesses.  A janitor was assigned to the station and followed a detailed schedule of regular maintenance and cleaning.

Justice Perell held that a plaintiff must pinpoint some act or omission on the part of the occupier that caused the plaintiff's injury.  The Occupier's Liability Act does not impose strict liability and the presence of a hazard does not lead inevitably to the conclusion that the occupier has breached its duty.  The occupier does not have to remove every possible danger; the standard of care is one of reasonableness, not perfection. 

Justice Perell allowed the TTC's summary judgment motion and dismissed the claim.  The plaintiff could not prove a hazard existed, and the evidence was that TTC took steps to make its premises as safe as in all the circumstances was reasonable.  He used a common sense approach:

[29]           It is important for a court to use common sense when applying the statute: (Canada) Attorney General v. Ranger, supra, at para. 34. Falls at bus terminals, airports, seaports, train stations, subway stations, occur without someone being responsible or with the responsibility resting with someone other than the occupier of the property. Falls occur on stairs found everywhere without anybody being responsible for what is just an accident. It is not reasonable or even practicable to impose an obligation on the TTC to be in a position to continuously and immediately cleanup after its patrons who litter the TTC premises including its staircases.  

The Test for Catastrophic Impairment

A recent decision by the Divisional Court in Ontario provides a plaintiff-friendly interpretation of the test for catastrophic impairment under the SABS.

In Security National Insurance Co. v Hodges, 2014 ONSC 3627 (Div. Ct.), GCS scored administered within 30 minutes of the accident were 11.  He underwent surgery the day after the accident and scores fell to 3 while he was intubated, but rose to 10 once the trachea was removed. Roughly three days following the accident – and while still under the influence of medication – several GCS tests were administered and resulted in scores of 9.  MRI and CT scans done at the time suggested that, while Mr. Hodges had suffered a brain injury from the accident, the extent of the injury was quite limited. GCS tests administered over the following days showed continuing improvement and the final GCS test indicated no impairment in consciousness.

The insurer denied the plaintiff's application for catastrophic impairment.  The arbitrator found that the plaintiff met the test for catastrophic impairment and this finding was affirmed under appeal to FSCO.  The insurer appealed to the Divisional Court. 

In upholding the FSCO decision, the Divisional Court stated that what constitutes a reasonable period of time to conduct the GCS test should be determined on a case-by-case basis. It found that, in this case, the test was conducted within a reasonable period of time, given that the injured individual was still experiencing fluctuating levels of consciousness at the time of the test. The court rejected the argument that the GCS score had to have “prognostic value,” saying that this would turn the legal test for catastrophic impairment into a medical test. The court also rejected the argument that the statute required that the brain injury be the sole cause of the score of 9 or less, saying: “It is sufficient that the person claiming catastrophic impairment had any brain injury causing any impairment….”

It will be interesting to see if Hodges results in a greater number of applications for a CAT designation.  Of course, the claimant still needs to show entitlement to benefits even if successful.

Court Grants Summary Judgment Against Party Bringing Motion

Courts seem to be embracing the "culture shift" advocated by the Supreme Court in Hryniak.

In King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215 (C.A.), the plaintiff sued for solicitor's negligence in connection with a commercial real estate transaction.  The defendants brought a summary judgment motion to dismiss the claim on the basis of an expired limitation period.  The motions judge dismissed the motion, but went a step further, granting summary judgment for the plaintiffs on the basis that the defendants had acted negligently.

The defendants appealed and the Court of Appeal dismissed the appeal.  It held that the evidence was clear that there was a duty to warn and the solicitor failed to do so.  The Court of Appeal held that "the principles of proportionality and sensible management of the court process support the judge's ruling". 

King Lofts shows a danger to bringing a summary judgment motion under the new Hryniak test.  Is this an unintended consequence of the new regime or in line with a goal of reducing the number of cases that need a full blown trial?

Plaintiff Ordered to Attend Second IME

A recent decision highlights the importance of wording correspondence when disputes arise over IMEs.

In Caesar v. Griaznov, 2014 ONSC 4329 (S.C.J.), the plaintiff alleged both physical and psychological injuries.  Defence counsel arranged IMEs with a psychiatrist and a physiatrist.  Plaintiff's counsel advised the plaintiff would attend only one IME of the defendant's choosing.  A clerk in defence counsel's office sent a letter stating the defendant "chose" the psychiatrist.  She later followed up in an email that read as though the clerk assumed the physiatry IME would proceed as well.

Master Muir ordered the plaintiff to attend the second examination.  Since the plaintiff was claiming two distinct types of injury (physical and psychological), fairness dictated the plaintiff be compelled to attend.  There would be no overlap between the two examinations.  There was little unfairness to the plaintiff since there was no trial date pending and a mediation date was several months away.  In contrast, there was the risk of significant unfairness to the defendant who would be required to defend a central element of the plaintiff's claim without the benefit of a current expert assessment.

Master Muir denied the successful defendant costs given the clerk's letter which suggested the defendant had "chosen" only one examination.  The decision on costs seems odd given that Master Muir was satisfied the defendant always intended to preserve her right to a second examination.  Counsel should be alert to the wording used in correspondence relating to disputed IMEs.

Plaintiff Failed to Meet Threshold

The Court of Appeal recently affirmed a trial judge's decision to dismiss an action based on the failure to meet threshold. 

In Jennings v. Latendresse, 2014 ONCA 517 (C.A.), the plaintiff was in a motor vehicle accident in 2005.  The defendant admitted liability.  While the jury was deliberating the judge heard a threshold motion, and ultimately dismissed the action after the jury rendered a verdict.  The jury held that the plaintiff had recovered from her injuries and did not award any amount for general damages or past loss of income, although they valued a loss of competitive advantage at $58,000.

The plaintiff submitted that her diagnosis of chronic pain, by definition, must indicate the injuries were permanent.  The Court of Appeal disagreed.  There was evidence that the plaintiff was improving and continued to improve, her functional abilities showed no impairment, she had returned to her pre-accident employment, her medical examination showed full range of motion, expert evidence stated recurring pain was not caused by the original injury, and pre-accident physical and psychological stressors contributed to the chronic pain but had nothing to do with the injury.  The evidence supported the trial judge's decision the plaintiff did not meet threshold.

One of the arguments made by the plaintiff on appeal was that the jury verdict was inconsistent when it found the plaintiff had recovered from her injuries but awarded an amount for loss of competitive advantage.  The Court of Appeal held that there was nothing inconsistent in finding a loss of competitive advantage but that it was not caused by the accident.

Jennings shows the importance of marshalling the evidence at trial as well as conducting a causation analysis, especially in chronic pain cases.

Limitation to Add Defendants Expired

Issues relating to discoverability can be decided on a motion to amend a claim.

In Garic v. Mack Trucks Canada 2014 ONSC 3103 (S.C.J.), the plaintiff was injured in 2006 while operating a dump truck owned by her husband.  One of the axles gave way, causing her to lose control and roll into a ditch.  Her husband was initially named as an FLA claimant.

In 2012, the plaintiff brought a motion seeking to add her (now former) husband and his company as defendants for failing to maintain the vehicle.  She argued the claim was not discoverable until the named defendants gave evidence on discovery that the owner had not followed proper maintenance procedures. 

The Court dismissed the motion to add defendants, holding that:

[19]           The difficulty with the plaintiff's position is that the case law has established that to discover a claim the plaintiff must only have sufficient facts upon which to support an allegation that there is a cause of action, and it is not necessary for the plaintiff to have discovered complete evidentiary support to make the claim winnable (see Wilkinson v Braithwaite [2011] O.J. No. 1714 (S.C.J.) at para. 32).

The Statement of Claim alleged the named defendants were responsible for "service, inspection and maintenance" of the truck, which was expressly denied in the Statement of Defence.  The plaintiff knew her husband was responsible for maintenance of the truck since the business commenced.  Justice Broad held that the essential facts were either actually known to the plaintiff or at least obtainable with due diligence more than two years since the motion was brought.

The Limitation Period to Commence a Claim under OPCF-44R

The decision in Schmitz(Litigation guardian of) v. Lombard General Insurance Co. of Canada, 2014 ONCA 88 (C.A.) is an important decision on when the limitation period begins to run in a claim under form OPCF-44R, for underinsured motorist coverage.

This matter concerned a motor vehicle accident that occurred on July 19, 2006. The plaintiff had a policy of insurance which included a provision for underinsured motorist coverage. The plaintiff commenced a claim against the defendant driver in June 2007 and a claim against his insurer for underinsured motorist coverage in June 2010. The plaintiff’s insurer brought a motion to dismiss the plaintiff’s claim on the basis that it was commenced after the expiry of the 1 year limitation period set out in section 17 of the OPCF-44R. The plaintiff took the position that section 17 did not apply and the 2 year limitation period set out in section 4 the Limitations Act overrode section 17 of the OPCF-44R. The motions judge accepted the plaintiff’s argument and dismissed the insurer’s motion. The plaintiff’s insurer appealed this decision.

 On appeal, the plaintiff’s insurer conceded that the 2 year limitation period in the Limitations Act applied and overrode the 1 year limitation period in the OPCF-44R. Instead, the insurer asserted that the limitation period began to run when the plaintiff knew or ought to have known that their claim exceeded the Defendant’s policy limits, embodied under section 15 of the OPCF-44R. The insurer argued that this section was not overridden by the discoverability provision under section 5 of the Limitations Act.

 
The Ontario Court of Appeal rejected the insurer’s argument. The court concluded that once it was accepted that the 2 year limitation period set out in the Limitations Act applied so did the discoverability provisions in section 17 of the Act. Turning to discoverability, the court held that this loss was only discovered by the plaintiff after a formal request for indemnification was made to the insurer and the insurer failed to indemnify the plaintiff. Given this finding, the court held that the 2 year limitation period did not begin to run until the day after the demand for indemnification was made to the plaintiff’s insurer under the underinsured motorist provision of the policy.

New Practice Directions

As of July 1, 2014 there are new Practice Directions that come into effect across Ontario.  There is a new province-wide direction and well as new ones for each judicial region.  

Here is the link to the provincial direction:

http://www.ontariocourts.ca/scj/practice/practice-directions/provincial/

 
Here is the link to the regional directions:

http://www.ontariocourts.ca/scj/practice/practice-directions/

 

It is important to be aware of these Practice Directions because some of them change the requirements under the Rules; for example, whereas the Rules do not require factums for each motion, the Practice Direction says factums are required for all long motions. 

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Laches Applies to Loss Transfer Actions

Insurers dealing with loss transfers should be aware of the decision in Zurich Insurance Company v. TD General Insurance Company, 2014 ONSC 3191 (S.C.J), where the Court dismissed the claim.

The claim arose out of a motor vehicle accident that occurred July 14, 1999.  In 2010, approximately 11 years after the accident, TD sent Zurich a Notice of Loss Transfer alleging Zurich's insured was 100% at fault.  Shortly after, TD made two requests for indemnification.  In 2011, TD brought an application requiring Zurich to participate in an arbitration.  Zurich brought a motion to decide a preliminary issue as to whether the application was barred by the equitable doctrine of laches and the Limitations Act.  The arbitrator dismissed the motion and Zurich appealed.

Justice Lederman held that TD's claim was not barred by the Limitation Act, relying on decision in Markel Insurance v. ING Insurance Company of Canada, 2012 ONCA 218 (CanLII), where the Court of Appeal held that the limitation period runs from the day the first party insurer requests loss transfer from the second party insurer.

However, Justice Lederman held that laches applied in the circumstances.  Applying laches in the circumstances was consistent with the fusion of law and equity to achieve just results.  He held that acquiescence is a stand-alone basis for laches, and there need not be prejudice for the doctrine to apply.  The 11-year delay coupled with a directive that the first party insurer notify the second party insurer promptly and the fact the TD is a sophisticated insurer, gave rise to an inference that it had abandoned or waived its rights to the claim. 

The “Curtain” of Asserted Claims of Privilege Lifted to Permit a Full Examination of all Available Evidence

In Tomasone v. Capo, Sgro LLP, 2014 ONSC 2922 (CanLII) the defendant had provided two legal opinions to the plaintiffs which the plaintiffs claimed failed to meet the requisite standard of care. The plaintiffs sued the defendant in negligence. The defendant brought a motion for summary judgment asserting that the plaintiffs’ claim was statute barred by the Limitations Act, 2002.

In defence to the summary judgment motion, the plaintiffs put forward affidavit evidence suggesting they discovered their claims against the defendant after retaining counsel. Their counsel also swore affidavits but during cross-examinations they refused to answer any questions about when or how they discovered those claims.

In advance of the summary judgment motion, the defendant moved for answers to refusals with respect to discoverability, particularly dealing with information and documentation the plaintiffs claimed privilege over.

Master Short considered whether the plaintiffs could rely on privilege in these circumstances and concluded at paragraph 48 as follows:

The plaintiff ought not to be allowed to rely on discoverability arguments to seek to avoid a limitations defence, without making full disclosure with respect to all relevant facts relating to what knowledge was acquired and when.

Master Short also considered the defendant’s argument that even if privilege applied, the plaintiffs waived privilege. Master Short agreed, taking into account the following factors inter alia:

1) the plaintiffs undertook to prove their action was not statue-barred and they put their state of mind and their lawyer’s mind in issue to argue that the action was not statute-barred;

2) the plaintiffs relied upon the affidavit evidence of their lawyer; and

3) the plaintiffs subpoenaed former counsel to give evidence.

Master Short went on to review the guidance provided by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 regarding the importance of full disclosure in light of the court’s power on the hearing of summary judgment motions to assess the quality and sufficiency of the evidence and the requirement that the parties "put their best foot forward".

The plaintiffs were ordered to answer the questions they refused related to the timing of receipt and review of relevant documents and the timing of investigations into possible claims against the defendant.

Action Dismissed for Failing to Provide Municipal Notice

A recent decision dismissed a plaintiff's claim against a municipality for failing to give notice within 10 days, as required by the Municipal Act.

In Seif v. City of Toronto, 2014 ONSC 2983 (S.C.J.), the plaintiff tripped and fell on a sidewalk.  She did not provide notice to the City for four months.  She stated she was unaware of the Municipal Act notice requirement. She was on painkillers for 3 days, was mobile within a week of the accident and was able to focus on a job search in the weeks after the accident.  The Court found that the delay in giving notice was as a result of her indecision as to whether to bring an action.

Justice Morgan dismissed the action.  Even though the notice requirement is "very unfair", it is a specific statutory requirement that can only be changed by the legislative.  The exception to the notice requirement is to accommodate plaintiffs whose delay is as a result of their injuries.  The plaintiff had no reasonable excuse for the failure to comply with the notice requirement.  Whether or not the City was prejudice was not relevant.

This is a useful decision for those dealing with a notice issue.

Lawyer Swearing Affidavit for Motion does not Waive Solicitor-Client Privilege

Solicitor-client privilege is an important right, as seen in a recent appeal of a Master's decision.

In Elgner v. Freedman Estate, 2014 ONSC 1989 (S.C.J.), the defendant brought a motion for particulars.  A lawyer from the firm representing the defendant swore an affidavit in support of the motion.  Plaintiff's counsel cross-examined on the affidavit and a number of refusals were given.  On a motion for the refusals, the issue was whether the tendering of litigation counsel's affidavit in support of a motion amounts to "a total waiver of privilege over a lawyer's file."  The Master held it did not and Justice Morgan upheld the decision on appeal.

The refusals were extremely broad, including things such as accounts, letter of advice, dockets, and the initial retainer.  The plaintiff argued that since defence counsel swore they had no information (and therefore needed particulars), the only way to test their assertion was to ask to see everything.  Plaintiff's counsel also argued they needed to see everything in order to test the assertion the affidavit was made for "no improper purpose".  Justice Morgan disagreed, holding that the onus is on the party asserting the affirmative, not the party stating a negative.  If a statement that an affidavit is sworn "for no improper purpose" requires cross-examination, it would "burden all affiants with limitless cross-examination".  The plaintiff's motion was a fishing expedition aimed at undermining their ability to conduct the litigation.  The appeal was dismissed.

Court of Appeal Rejects Discoverability Argument

A recent example shows that the new summary judgment rule may be used in cases where plaintiffs claim they did not discover they had a claim within the limitation period.

In Yelda v. Vu, [2014] ONSC 2168 (C.A.), the plaintiff was injured in a motor vehicle accident in 2002.  She did not commence an action until 2011.  She alleged that she did not discover her injuries met the threshold for a claim until she had an x-ray of her back in 2009.  A motions judge disagreed, and granted summary judgment dismissing the action.  The plaintiff appealed.

The Court of Appeal dismissed the appeal.  The plaintiff's own evidence was that she had "really bad" back pain "half the time" each month following the accident.  She was never really pain free at any time, and at all times she attributed the pain to the accident.  Apart from occasional visits to hospital emergency departments, the plaintiff took no active steps to investigate the back pain from 2002 to 2009.  The motions judge held that it was implausible that a reasonable person would consistently take over the counter medication, have "really bad" pain, be unable to function a couple of days each month, and would find pain so bad as to need to attend the emergency department, yet fail to do anything to investigate the cause.  The Court of Appeal held there was no error in the motion judge's finding.

Plaintiffs Denied Costs of Jury Trial

A London judge recently denied costs to plaintiffs following a jury trial which saw them recover less than 10% of their claim.

In Mayer v. 1474479 Ontario Ltd., 2014 ONSC 2622 (S.C.J.), the defendant admitted liability for a 2008 motor vehicle accident.  The action proceeded to a jury trial on damages.  The Statement of Claim sought damages of $1.1 million, and mid-trial the prayer for relief was amended to $2 million.  The jury awarded the primary plaintiff $137,000 (reduced to $116,000 after the deductible and collateral benefits), her daughter $3,300 (reduced to $0 after the deductible) and her husband $0, for a total recover of $119,300.  The plaintiffs sought costs of $422,000.

Justice Leach went through the factors in r. 57.01.  Some of the factors considered were:

1.  The plaintiffs fell "drastically short" of the amounts claimed;
2.  The time and resources devoted by the plaintiffs were disproportionate to what the case was worth, as determined by the jury; 
3.  There were disbursements for experts who either did not add much to the proceeding or overlapped with other experts;
4.  The case was scheduled for 2 weeks and ran to 4 weeks, for which the plaintiffs were largely responsible; and
5.  Various disbursements were not permissible in any event, such as a "day in the life" video which was not used, the cost of a trial that was adjourned by the plaintiffs, and the cost of a voluntary mediation.

The defendants made several offers; however, they were not r. 49 offers as they failed to separate interest from damages, did not make it clear whether the offer was global for all plaintiffs or severable, and were not clear as to whether the plaintiffs could retain future collateral benefits.  But for the deficiencies in the offers, the defendants would have been entitled to partial indemnity costs in the amount of $181,000.  Even though they were not r. 49 offers, the defendants' offers were taken into account in exercising the Court's discretion.  Justice Leach held that each party should bear their own costs.

Mayer should be reviewed by counsel as guidance in making offers, as well as in deciding what resources should be put into a particular file.

Evidence Required to Dismiss a Non-Earner Benefits Claim

In Willoughby v.Dominion of Canada General Insurance Co, 2014 ONSC 1136 (S.C.J.), the plaintiff sustained injuries in a motor vehicle accident on July 8, 2004. The plaintiff settled her claim for income replacement benefits with her insurer and proceeded to bring a claim for non-earner benefits.

The insurer brought a motion for summary judgment on the basis that the plaintiff did not satisfy the test for non-earner benefits. To support the motion, the insurer submitted an affidavit relying on the oral evidence given by the plaintiff at her examinations for discovery that showed she had continued to engage in her pre-accident activities. The plaintiff opposed the motion and submitted an Affidavit sworn by the plaintiff, a report of a neurologist and a report from an occupational therapist, all highlighting the differences in her pre and post-accident life. The insurer did not cross-examine on the affidavit nor did they submit an affidavit in response. Given this the court held that the evidence provided by the plaintiff would be considered undisputed.

In their reasoning, the court relied on the Ontario Court of Appeal’s decision in Heath v. Economical [2009] O.R. (3d) 785 for the general principle that in cases where pain is a primary factor preventing the claimant from engaging in substantially all of her pre-accident activities the question is not whether the insured is physically able to do these activities, but whether the degree of pain experienced is such that the claimant is practically prevented from engaging in those activities. The court applied a qualitative perspective requiring the activities to be viewed as a whole and held that the evidence led by the insurer was insufficient. Therefore the motion was dismissed.

Willoughby indicates the high standard courts will apply in summary judgment motions to dismiss applications for non-earner benefits. Defendants who bring such motions should not merely rely on the plaintiff’s evidence provided at examinations for discovery to satisfy the court’s qualitative approach.  

Substantial Indemnity Costs for Unsubstantiated Bad Faith Claim

In Sagan v. Dominion of Canada General Insurance Company, 2014 CanLII 16478 (SC.J.), the defendant insurer successfully moved to dismiss the plaintiff's claim for non-earner benefits and mental distress.  The claim continued "a litany of unsupported allegations of bad faith, misconduct and incompetence against the defendant".  There was no evidence to support the allegations and they were maintained right up until the hearing of the motion.

Justice Lofchik awarded substantial indemnity costs for the motion itself, and partial indemnity costs for the remainder of the action.  He held that substantial indemnity costs may be appropriate where a party makes empty bad faith allegations.  The purpose is to diminish frivolous and speculative litigation, to cause litigants to focus on the real issues and to foster sober reflection above that of an emotional response.

Although brief, Sagan is a useful decision, especially where plaintiffs commonly throw in allegations of bad faith where an insurer denies a claim.

Courts Have Inherent Jurisdiction to Order Assessments by Non-Health Practitioners

For several years, there have been two streams of cases regarding whether courts can order independent medical assessments by non-health practitioners under s. 105 of the Courts of Justice Act and r. 33.  The Divisional Court considered the issue in Ziebenhaus v. Bahlieda, 2014 ONSC 138 (S.C.J.).

The Court held that court have inherent jurisdiction to order physical or mental examinations by non-health practitioners.  The inherent jurisdiction is to be exercised to further trial fairness and justice.  There is no automatic rule that "levels the playing field" by providing the defendant is entitled to each type of report that is obtained by the plaintiff.  The focus is on the need for a particular examination in order to meet the plaintiff's case.

Ziebenhaus provides guidance on an area that has called out for clarification for some time. Defendants who bring motions to compel IMEs should make sure they address how the proposed assessment will further trial fairness and justice.  It may be that it will become easier to obtain IMEs with future care cost assessors, occupational therapists and so forth than in the past.

Action Against Municipality Dismissed for Failure to Give Notice

The new test for summary judgment as set out in the Supreme Court in Hryniak has been applied to dismiss a claim against a Municipality for failing to give notice as required by s. 44(10) of the Municipal Act.

In Hennes v. City of Brampton, 2014 ONSC 1116 (S.C.J.), the plaintiff slipped and fell on an icy sidewalk.   He did not give notice until 18 months after the fall, contrary to s. 44(10) which provides for a 10 day notice period.  The plaintiff admitted he knew the City owned and maintained the sidewalk and that ice caused his fall.  He claimed he had a reasonable excuse for failing to give notice as he did not know how serious his injuries were until months after the fall. 

The Court did not accept that the plaintiff had a reasonable excuse; he did not seek advice about his rights or obligations for over a year after a claim was apparent.  In addition, the plaintiff bore the onus to show the Municipality was not prejudiced by the failure to give notice, and he failed to do so.  The plaintiff did not take timely photographs, and had not disclosed the contact information or a summary of a potential witness.  The action was dismissed. 

Hennes is a good example of how the new summary judgment rule can be used to dispose of a claim at an early stage. 

Duty to Defend - Extrinsic Evidence Not Permitted

In Liardi v. Riotrin Properties (Kingston) Inc., 2013 ONSC 7544 (S.C.J), the defendant, Future Shop, brought a motion for a declaration that Zurich had a duty to defend the underlying action.  The issues on the motion were whether the plaintiff's pleadings raised covered and non-covered claims, and whether extrinsic evidence could be admitted in enlarge or explain the pleadings.

In the main action, the plaintiff alleged he bought a television at Future Shop and was instructed to move his car to the back of the store to load it.  An employee was having difficulty lifting the television so the plaintiff got out of his car to assist.  He alleged he slipped on ice and fell as he was walking to the rear.  The allegations against Future Shop included that it failed to have adequate persons to load the television, knew a dangerous condition existed and failed to ameliorate it, failed to ensure the premises were properly salted/sanded, and failed to properly monitor the area.

The landlord, Riotrin, was responsible for common areas under the lease.  Future Shop was named as an additional insured on the landlord's policy with Zurich.

Zurich sought to introduce extrinsic evidence as to the way Future Shop operated its businesses, including policies with respect to loading merchandise into customers' cars.  Justice Tausendfreund refused to admit the evidence as it touched on matters at issue against Future Shop which might prejudice Future Shop or bring it into conflict with the insurer.

Justice Tausendfreund held there was a duty to defend.  The plaintiff fell on snow and ice in the parking lot and the reason he did so was not relevant.  The claim did not relate to the way Future Shop did business but rather to the condition of the parking lot.  

When deciding duty to defend motions, courts will look at the essence of a claim.  It may be difficult to show that certain parts do not require a defence unless there are clear claims that could stand on their own.

Action Against Municipality for Failing to Repair Potholes Dismissed

Justice Leach has conducted a thorough review of the standard of care for a municipality as it relates to potholes in the decision of McLeod v. General Motors of Canada, 2014 ONSC 134 (S.C.J.).  In McLeod, the action against a rural municipality was dismissed.

Ms. McLeod was injured on September 18, 2004 on a rural gravel road in Dutton-Dunwich.  She lived on the road and had been coming home from a nearby social gathering on the night of the accident.  The plaintiff alleged she was surprised by the headlights of an oncoming vehicle, and lost control of her vehicle due to potholes on the road.  The plaintiff called lay witnesses who felt the potholes never improved and were always present.  A number of witnesses alleged they complained to the municipality and wanted the road to be paved.

Justice Leach held that the road was not in a state of disrepair.  Gravel roads are inherently dynamic.  The presence of loose stone near the edges of the road would not be unusual, dangerous or unreasonable in the circumstances.  There were eight potholes with diameters of 6"-12", none of which was deeper than 2".  The condition of the road was reasonable in the circumstances, having regard to the rural nature of the township, the number of similar roads within the municipality's jurisdiction, the municipality's limited resources, the road's low traffic volume, and the obvious nature of the road's surface, alignment and elevations.

Even if he had held the road was in a state of disrepair, Justice Leach would have held the municipality was entitled to rely on the statutory defences set out in s. 44(3) of the Municipal Act.  Firstly, the municipality had no knowledge of a defect.  Although complaints were allegedly made, they were informal (such as in coffee shops) and vague or general.  Secondly, the municipality took reasonable steps to prevent the default from arising as it had a regular system of grading.  Thirdly, the municipality met the Minimum Maintenance Standards for inspection and pothole repair.

Although it is a lengthy decision, McLeod is a worthwhile read for those defending municipal claims. 

 

Requests to Admit Can Be Reviewed on an Interlocutory Basis

Can the validity of responses to a Request to Admit be reviewed on an interlocutory basis?  Yes, according to a recent motion decision.

In Glover v. Gorski, 2013 ONSC 6578 (S.C.J.), the minor plaintiff was struck by a Waste Management truck while crossing a highway.  The defendants served a Request to Admit prior to disclosure and discoveries.  The plaintiffs made a global refusal, "to admit the truth of the facts...on the basis that the truth or falsity of the facts alleged is not entirely clear, calls for a conclusion to be determined by the trier of fact or the statement(s) alleged is vague".  The defendants brought a motion to compel the plaintiff to provide answers.  One issue was whether a motions judge could make an Order or whether the matter must be left to a trial judge.

Justice Gauthier held that a Request to Admit can be reviewed on an interlocutory basis.  She held that the plaintiffs' blanket refusal and reasons offered for the refusal were not responsive, and ordered they deliver a Response within 20 days.

A Request to Admit is most often served prior to trial to narrow down issues, but Glover shows that it can also be useful at earlier stages of the litigation to narrow issues.

“The Cruel World of Claims-made-and-reported Policies of Insurance”

Those are the words of Justice Quinn of the Ontario Superior Court of Justice in Certain Underwritersat Lloyd’s of London v. All Spec Home Inspections et al., 2013 ONSC 7149.

In this case the respondent was a self-employed home inspector who had a professional liability insurance policy through the Applicant which was renewed annually.

The respondent carried out an inspection in July 2010 at the Swallow residence and produced a report and photographs. On August 16, 2010 Paul Mambella was performing work in the attic of the Swallow residence when he came into contact with an exposed, energized and bare copper wire. He was electrocuted and died. A Ministry of Labour investigation ensued immediately in which the respondent was involved.

In August 2010 the respondent’s insurance policy came up for renewal. The Application contained the following questions which he answered “no” to:

22.             In the last five (5) years, has a claim ever been made against the applicant?

If YES, please provide the following details...

23.             Is the applicant aware of any situation or circumstance which may in the future result in a claim…

Below these questions the following exclusion appeared:

Without limitation of any other remedy available to the insurer, it is hereby agreed that if there be knowledge of any such fact, circumstance or situation, any claim or action subsequently emanating therefrom is excluded from coverage under the proposed insurance.

The Ministry of Labour conducted an inquest in late August 2011. On September 10, 2011 the respondent submitted a renewal Application and again answered “no” to the above questions.

In November 2011 the widow and children of Mambella commenced an action. After consulting a lawyer the respondent notified the applicant. The applicant brought this coverage Application.

The Policy is a claims-made-and-reported insurance policy.  The applicant argued that it relied on the representations made by the respondent in the application in renewing the policy. It further argued that the policy excluded coverage in the circumstances and the exclusion is clear and unambigious and thus results in there being no coverage available to the respondent.

 Citing the Ontario Court of Appeal in Fellowes, McNeil v. Kansa General International Insurance Company Ltd. et al., 2000 CanLII 22279, Justice Quinn held that the test whether a situation or circumstance should be reported to an insurer, as being one which may in the future result in a claim, is an objective test. The Ministry of Labour investigation and inquest “called out for notice” by the respondent to the applicant.

 
The court went onto consider how the existence of an exclusion affects the availability of relief from forfeiture under section 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The applicant’s argument was accepted that relief from forfeiture is unavailable where a claim falls outside of the coverage due to the operation of an exclusion.   

Justice Quinn ruled in favour of the applicant denying coverage.

Plaintiff entitled to coverage despite driving with expired licence

Sometimes even when you win, you lose.

We previously blogged on Kozel v. Personal Insurance Co.  A copy of our previous post is found here.  In that case, the respondent was in an accident while driving with an expired licence.  She claimed she received her licence renewal documents in the mail and gave them to a dealership when she took delivery of a new automobile.  The applications judge held that the insured exercised reasonable diligence and was entitled to a defence.  He also held that she was not entitled to relief from forfeiture because holding a valid licence is a condition precedent of the policy.

The Court of Appeal reversed the judge on the issue of due diligence but held that the respondent was entitled to relief from forfeiture.

The offence of driving without a valid licence is one of strict liability for which a defence of due diligence is available.  An individual can make out the defence if s/he can show a reasonable misapprehension of facts or reasonable care with respect to the offence with which she can charged.  The Court held that Ms. Kozel was not able to show she acted with reasonable care - although she had renewed her licence for 60 years on time, this time she did nothing else to inquire about or even consider her renewal.  There was no due diligence and the appeal was allowed on that issue.

However, the Court held that the plaintiff was entitled to relief from forfeiture.  The analysis looks at three factors: the applicant's conduct, the gravity of the breach and the disparity between the value of the property forfeited and the damage caused by the breach.  The Court held that Ms. Kozek acted in good faith and the breach was relatively minor.  In addition, the disparity was enormous as Kozek stood to lose $1,000,000 in insurance coverage while there was "no prejudice to the insurance company".  The Court held she was entitled to relief from forfeiture.

One has to wonder how much the specific facts of this case impacted the ultimate result: what if it wasn't a little old lady?  What if she had a history of driving with an expired licence?  What if the claim was for only $10,000?  It will be interesting to see how this case is applied to future fact situations.

Counsel Should Not Review Draft Expert Reports

A recent trial decision held that counsel should not review draft expert reports.  In Moore v. Getahun, 2014 ONSC 237 (S.C.J.), the plaintiff brought an action against an emergency room physician for negligently applying a cast after he fractured his wrist.

At trial, there were a number of evidentiary issues with respect to expert evidence, including whether it is appropriate for counsel to review draft expert reports and provide input?

Justice Wilson held that it was not proper for counsel to review an expert’s draft report.  If there are changes to a report, there should be disclosure to the other party:

[520]      The purpose of Rule 53.03 of the Rules of Civil Procedure is to ensure the independence and integrity of the expert witness. The expert’s primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel’s practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert’s final report as a result of counsel’s corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral.

Counsel should review the Moore decision as it potentially has repercussions for the way that counsel interact with experts in the future.  One has to wonder whether the Rule Committee intended r. 53 to be interpreted so broadly.

Claim for Contribution and Indemnity for Negligent Supervision Not Caught by Exclusion Clause

The Court of Appeal recently held that an insurer was obligated to defend a homeowner against a Third Party Claim alleging she failed to supervise her own daughter.


In Bawden v. Wawanesa Mutual Insurance Company, 2013 ONCA 717 (C.A.), eight year old Kelly Bawden was struck and injured by a motor vehicle driven by Joyce Wilson and owned by Randal Wilson in August 2003.

Kelly’s mother, Elizabeth Bawden, sued the Wilsons in her capacity as litigation guardian seeking damages on Kelly’s behalf. The Wilsons brought a third party claim against Elizabeth Bawden and Kelly’s father, David Bawden, claiming contribution and indemnity for failing to properly instruct and supervise their daughter.

The Bawdens held a homeowners’ insurance policy issued by Wawanesa Mutual Insurance Company. Wawanesa declined to defend them on the third party claim. The Bawdens brought an application for coverage. The application judge found in favour of the Bawdens. Wawanesa appealed to the Ontario Court of Appeal.

The critical coverage provision in the policy stated:

                You are insured for claims made or actions brought against you for:

1. personal Liability: bodily injury or property damage ­arising out of your personal activities anywhere in the world. [Emphasis added]

Exclusions: you are not insured for claims made or actions brought against you for…

1. bodily injury to you or to any person residing in your household other than a residence employee. [Emphasis added]

Wawanesa argued that the exclusion clause removed all claims for bodily injury by the insured and those residing in their household. The Court of Appeal disagreed and the appeal was dismissed. 

The Court held that the coverage provision must be interpreted broadly and therefore clearly encompasses the third party claim which arises out of the insureds’ personal activities in negligently failing to supervise their daughter. 

Further, the Court held that the exclusion clause must be read narrowly. It cannot encompass the third party claim which is not a claim on behalf of Kelly for her injury, but a claim by the Wilsons against the Bawdens for contribution and indemnity.

Lastly, the Court considered the policy objectives of the exclusion clause. The exclusion clause removes from coverage those claims that raise a risk of collusion between family members. This risk is not present in this case in which the Wilsons have brought a third party claim against the insureds. 

Limitations periods for claims of negligent supervision allowing sexual assaults to occur

Choc v. Hudbay Minerals Inc., [2013] O.J. No. 3375 (S.C.J.) is a case that may be of interest to institutional defendants of sexual assault claims.

In this action the plaintiffs, who are indigenous Mayan Q’eqchi’ from Guatemala, brought three related actions against the Canadian mining company, Hudbay Minerals and its subsidiaries.  The plaintiffs allege that security personnel working for Hudbay’s subsidiaries committed a number of abuses including a shooting, a killing and gang rapes during the forced removal of the plaintiffs from areas claimed as ancestral homelands.    

This decision is in respect of motions brought by the defendants, Hudbay Minerals, HMI Nickel and CGN with respect to three related actions by the plaintiffs.  One motion sought the dismissal of one of the actions on the basis that it was statute-barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B [“Limitations Act”].  The action sought to be dismissed was brought by 11 women who asserted they were each gang-raped by mining company security personnel during their forced removal on January 17, 2007.  The action was not commenced until March 28, 2011, more than 4 years later.

The defendants argue that the basic limitation period, of two years after the day on which the claim is discovered, pursuant to section 4 of the Limitations Act, is applicable.  The defendants contend that the plaintiffs’ claim is not based on assault or sexual assault but is framed in negligence based on the alleged failure of Hudbay to supervise employees and agents of its subsidiaries.  They argue there is no issue of discoverability and the plaintiffs knew of the alleged claims as of January 17, 2007.   

The plaintiffs argue that section 10 of the Limitations Act which provides an exception to the two year limitation period for claims based on an assault or sexual assault is applicable.  If the claim falls within the scope of section 10, then the limitation period will not have started running because the plaintiffs will be presumed to have been incapable of commencing the proceeding, unless the contrary is proven. 

The motions judge held that section 10 was applicable in the circumstances of the case as the claim is based on alleged sexual assaults.  Although the claim was based in negligence for the defendants’ failure to properly supervise and train their personnel, ultimately, without the sexual assault there would not have been a claim.  The sexual assault was “the main ingredient of the cause of action of negligence”.  As such the claim properly fell within the scope of s. 10 of the Limitations Act.

Counsel should be aware that even if a claim is framed in negligence, the standard two year limitation period may not apply.  Rather, the offence giving rise to the action may put the claim into one of the exceptions.