When a builder negligently repairs a school’s gymnasium roof, which causes rain to spill into the gym and damage the wooden floor below, does the builder’s All Risk Builder’s policy cover the damage to the floor?
Pre-Eng v. Intactinvolved a coverage battle between the builder’s All Risk Builder’s policy with Northbridge and CGL policy with Intact. The Builder’s Risk policy provided the following coverage:
3. Insured Property
This Form insures the following items for the amount of insurance specified on the Coverage Schedule of Part I and II;
A. At the “project site”, provided that the value of the described property, whether owned by you or by others, is included in the amount of insurance:
(a) property in course of construction, installation, renovation, reconstruction or repair other than property described in 3.A(b),all to enter into and form part of the completed project including expendable materials and supplies, not otherwise excluded, necessary to complete the project;
The parties agreed that the Project Site included the entire school, disagreed over whether the gym floor was “property in course of construction, installation, renovation, reconstruction or repair…”
Meanwhile, the builder also held a CGL policy, which was intended to exclude coverage for what was covered under the Builder’s Risk policy. The exclusion clause reads as follows:
“Property damage” to:
5. That particular part of real property on which the Named Insured or any contractor or subcontractor working directly or indirectly on the Named Insured's behalf are performing operations, if the property damage arises out of those operations; or
6. That particular part of any property that must be restored, repaired or replaced because the Named Insured's work was incorrectly performed on it.
Northbridge argued that the Builder’s Risk policy explicitly covered “property under construction” and the gym floors were not under construction. They were damaged as a result of construction, but they were not under construction and were therefore not covered by the Builder’s Risk policy.
Intact argued, among other things, that there was ambiguity in the Builder’s Risk policy because, in this case, the builder was hired to do a variety of tasks at the school, which could inevitably lead to property damage to other areas in the school.
Both insurers sought summary judgment in a coverage action that the builder brought against them.
Conflicting Case Law
The motions judge noted that there was a conflict in Canadian case law involving the scope of Builder’s Risk insurance. On the one hand, a 2007 case from Alberta (Medicine Hat College) held that the Builder’s Risk policy covered damage caused to a building’s penthouse after the builder had negligently moved a gas pipeline and an explosion ensued. The contractor had not been hired to do any work on the penthouse of the building but that happened to be the site of the damage caused by his negligence. The Alberta Queen's Bench judge concluded that the penthouse mechanical room was included in the phrase “property in the course of construction” and was covered under the Builder's Risk policy.
On the other hand, a 2015 case from Ontario (Osler Health) held that the Builder’s Risk policy did not cover flooding damage to several parts of the hospital, caused by a plumber’s negligent installation of pipes during a kitchen renovation at the hospital. Justice Firestone concluded that the Builder's Risk insurance held by the contractor only covered damages to the kitchen itself, not to the other areas of the hospital which had been flooded.
More recently, the Supreme Court of Newfoundland and Labrador reviewed the same issue in a case called Dominion v. Viking Fire (Team Mechanical Construction). In that case, a renovator negligently installed a water treatment system in a large health sciences complex, which lead to leakage and extensive damages to many areas of the complex. The renovator had obtained a Builder’s Risk insurance policy which was substantially the same as the policies used in Medicine Hat Collegeand Osler Health. The motion judge expressly disagreed with the ruling in Osler Healthand instead followed the reasoning in Medicine Hat College (Builder’s Risk policy covered losses to other property).
However, on March 6, 2019, the Court of Appeal of Newfoundland and Labrador released its decision in Dominion v. Viking Fire, overturning the motion judge’s decision and adopting Justice Firestone’s reasoning in Osler Health.
So what does the Builder’s Risk policy cover?
The motions judge followed Justice Firestone’s decision and held that the Builder’s Risk policy with Northbridge did not cover the damage to the gym floors:
If Intact’s argument were correct, it would lead to the conclusion that the Builder’s Risk insurance was intended to cover the entire Project Site. That interpretation cannot be reconciled with the Northbridge policy which specifically limits coverage to property in the course of construction which is located at the Project Site. If the intention of the parties was to extend coverage to the entire site, there would have been no need to include section 3 in the agreement which defines the “insured property” as property located at the Project Site.
The judge concluded that the words “property in course of construction, installation, renovation, reconstruction or repair” are sufficiently clear to exclude the gym floor from coverage under the Builder’s Risk policy. The gym floor was not being installed, renovated, or reconstructed and there was no evidence to suggest that it was.
It appears that any conflict in Canadian case law over the scope of coverage under the Builder’s Risk policy is close to being wrapped up (if it isn't already). To date, two Ontario Superior Court Judges and the NLCA have limited its scope to cover only property that is being in the course of “construction, installation, renovation, reconstruction or repair”. Any other property losses not covered by the Builder’s Risk policy would likely be covered under the builder’s CGL policy, subject to any other terms or exclusions.
It will be interesting to see whether Intact appeals to give the Ontario Court of Appeal a chance to review this issue. Stay tuned…
While at the Bramalea City Centre Mall with her mom and siblings, the plaintiff (a minor) fell backwards on an upward moving escalator. Unfortunately, her left hand got stuck in the step-to-skirt gap of the escalator resulting in a severing of her left index finger.
The plaintiff and her mother commenced a lawsuit against the owners of the mall, the Schindler Elevator Corporation and the Technical Standards and Safety Authority (the “TSSA”). Schindler was hired to inspect and maintain the escalators at the mall. In their regulatory capacity, the TSSA also periodically inspected the escalators. The escalators were subject to the inspection and maintenance requirements adopted by the TSSA.
The TSSA brought a partial motion for summary judgment which was ultimately dismissed.
The plaintiffs produced an expert report which concluded that the subject step/skirt gap exceeded the upper standard and that the step/skirt performance index (“SPPI”) also exceeded the standard. The report opined that Schindler failed to take corrective measures to reduce the SPPI when it was discovered just a few months prior to the plaintiff’s injury. The report also opined that if the TSSA carried out inspections at the one-year frequency recommended by industry standards, they more likely than not would have discovered the SPPI issue, which in turn should have resulted in an issuance of a compliance order and a shutdown of the escalator.
While the TSSA were able to produce detailed logs of their inspections and reports/orders, it likely did not assist that TSSA provided conflicting evidence on how often the escalator was periodically inspected. Furthermore, TSSA’s own evidence supported that the escalator had recurring issues with the anti-friction skirt, which the plaintiff’s expert opined increased the risk for step/skirt entrapment.
The Court held that a trier of fact would benefit from hearing evidence of all witnesses in order to determine the issues and assess the strength of the evidence, as well as provide a fair and just determination on the merits. The Court determined that TSSA’s actions / responsibilities were not clearly severable from the balance of the case against the remaining defendants, which would remain even if the motion was granted.
This decision highlights that actions with multiple defendants who may be jointly and severally liable under the Occupiers' Liability Act are unlikely to be successful candidates for a partial summary judgment motion.
See Gallo v. Bramalea City Centre Equities Inc., 2019 ONSC 1443
Shalini defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, as well as accident benefits litigation and arbitration and priority and loss transfer disputes.
This sordid tale begins with an employee going rogue with a company credit card. The Defendant Fung began purchasing iPhones and iPads from the Defendant Minetto in November 2011. The first transaction was seemingly innocent. The two met in the parking lot at Yorkdale Mall. Fung purchased one iPad from Minetto and paid in cash.
Over the course of the next 2.5 years, Minetto sold Fung over 4,900 iPhones and 5,300 iPads in increments of 10 to 20 pieces at a time. Initially, Fung and Minetto met in parking lots to exchange cash for the Apple Products. Eventually, they set up a virtual office where Minetto had Apple Inc. ship the Apple Products directly to Fung.
As it turns out, Minetto was using her employer Wescom’s corporate credit card to purchase the Apple Products and then selling the Apple Products for her own personal gain. Minetto’s actions went undiscovered for so long because she was the employee responsible for paying the corporate credit card invoices. In the end, Minetto defrauded her employer out of $6.8 million over 5 years. Some of her expenditures were for other unrelated personal items. Over $6.2 million was spent on Apple Products which Minetto later sold. Wescom ultimately discovered the fraud and terminated Minetto immediately.
Wescom obtained a Judgment on consent against Minetto for the full $6.8 million, plus interest. In a separate decision, Wescom was granted leave to sell Minetto’s home after a Judge found that Minetto committed multiple material breaches of their settlement agreement.
Superior Court Decision
An action was brought by Wescom based on Fung’s alleged unjust enrichment at the expense of Wescom. On consent, the Trial proceeded on the issues of: (1) Whether Fung knew or was wilfully blind to the fact that he was purchasing stolen goods or goods fraudulently obtained by Minetto; and, if yes (2) Did this apply to all transactions or just transactions after a certain date?
Fung admitted that he did not initially ask Minetto where or how she obtained the Apple Products. Later, he asked her if they were stolen and Minetto told him they were “legit”. Fung could detect no sign that the Apple Products were stolen. He was not concerned about the cash transactions or lack of documentation for the purchase or resale of the Apple Products.
What Fung knew or ought to have known was analyzed over three distinct stages:
Stage 1: November 2011 to early 2012 – Yorkdale Mall parking lot transactions
During the initial timeframe, Fung purchased 30 iPhones and 400 iPads from Minetto. The Judge held that there was no basis to find that Fung knew, or that the circumstances were sufficiently strong to arouse his suspicions, that the Apple Products had been stolen or obtained through fraud.
Stage 2: Early 2012 to April 2013 – Ikea parking lot transactions
The Judge found it important that Fung again questioned Minetto during Stage 2 whether the Apple Products were legitimate. He had already asked. If he believed her, and there had been no reason to suspect otherwise, why ask again? He found that Fung made a conscious choice not to seek verification or further information about the source of the Apple Products. Fung chose to remain deliberately ignorant. The Judge held that Fung was wilfully blind to the fact that the Apple Products were stolen or fraudulently obtained during Stage 2.
Stage 3: April 2013 to July 2014 – where Minetto shipped products directly to Fung’s virtual office
By this time, the business relationship had evolved. Products were being shipped directly from Apple to Fung’s virtual office. Fung ordered products from Minetto by email. Minetto would send him a shipping notification provided by Apple. Fung could track the shipment. Shipping was being paid by Wescom. The Judge held that this level of sophistication removed the probability that Fung was wilfully blind to the nature of how Minetto was procuring products. He held that Fung had actual knowledge of the source and nature of the Apple Products he was purchasing from Minetto.
Judgment was granted in the amount of $5 million against Fung. Fung’s crossclaim against Minetto for contribution and indemnity was granted in the same amount. Fung appealed.
Court of Appeal
Fung submitted that the Trial Judge erred by applying an objective standard to the wilful blindness analysis (rather than a subjective standard). The Court of Appeal agreed with Fung’s submission that the Trial Judge erred in law in his articulation of the concept of wilful blindness when he engaged in an objective analysis. The Trial Judge was not asked to consider whether Fung as a ‘reasonable person’ would have been alerted to a potential breach of trust.
A finding of wilful blindness, which is the same standard in criminal and civil proceedings, involves a subjective focus on the workings of a defendant’s mind.
Notwithstanding the mischaracterization, the Court held that the Trial Judge was correct in his application of the wilful blindness analysis when he found that Fung was wilfully blind. It was clear the Trial Judge made findings of fact establishing that Fung was wilfully blind from a subjective standard. Fung knew that the Apple Products were probably stolen or obtained by fraud, but made a deliberate choice not to investigate.
Fung’s appeal was dismissed by the Court.
This case highlights that, in the civil context, wilful blindness in is to be assessed on a balance of probabilities. The test is a subjective one. The Court held that Fung’s conduct met the definition of wilful blindness articulated in R. v. Sansregret (SCC), which “arises when a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.” Once suspicions about certain facts are aroused, a duty to inquire is raised. A party cannot simply bury his head in the sand or look the other way. Failure to make those inquiries can turn what may seem like ‘harmless’ parking lot transactions into a successful claim for unjust enrichment.
The recent decision of Traders General Insurance Company v. Elizabeth Gibson asked the question, “Am I my [mother]’s keeper?” in the context of coverage for third party bodily injury claims under a homeowner policy. In this case, the answer was “No, you are her tenant.”
The facts of this case were fairly straightforward but highlight the risks of undefined terms within insurance policies. Traders General Insurance (“Traders”), insured Elizabeth Gibson under a homeowner’s policy. Elizabeth’s daughter, Betty, was involved in an accident in the home in March 2014. Betty sued her mother, among others, for her injuries.
The issue was whether the claim brought by Betty, who had lived in the home for 41 years, was excluded from coverage. It appears that during the trial, Traders brought an application for a declaration that the accident was excluded from coverage. Traders argued Betty was residing in the household. Betty’s counsel argued that she fell under the exception to the exclusion because she was really a “residence employee”, or in the alternative, a tenant.
Traders argued that the policy excluded “bodily injury to you or any person residing in your household other than a residence employee.” Residence employee was a defined term that meant: “…a person employed by you to perform duties in connection with the maintenance or use of the premises. This includes persons who perform household or domestic services or duties of a similar nature for you….”.
Betty alleged that she was in fact a residence employee. She alleged she provided domestic services to Elizabeth in exchange for a low monthly rental payment. She argued that she and her mother shared the daily tasks of living in the house such as vacuuming and dusting, preparing meals and eating together. Both Elizabeth and Betty shared household expenses, although Elizabeth contributed more toward those expenses and assumed responsibility for utilities and property taxes.
Ultimately, Brown J., did not accept this argument. This was largely because the relationship between Betty and Elizabeth did not have any of the hallmarks of a traditional employer/employee relationship. There was no written contract concerning work that Betty was to do. There was never a work schedule. Betty was not paid for the work she did. She was not issued a T4. Elizabeth never submitted any documentation relating to Betty with respect to Employment Insurance, Canada Pension Plan benefits, or Workplace Safety and Insurance Board premiums. Betty could do as much or as little as she wished at any time. She had discretion to perform the household tasks she wanted to. She did not report to Elizabeth regarding the work she did. Elizabeth did not supervise her.
However, Brown J. did accept the alternative argument that Betty was a “tenant”. The term “tenant” was not defined in the policy or in the Insurance Act. Brown J., found that there was no exclusion in the policy regarding bodily injured occasioned by a tenant. The judge found that it would be within the reasonable expectation of the policyholder that the policy provided coverage respecting the use and occupancy of the property. Relying on the Oxford Dictionary and Black’s Law DictionaryBrown J., concluded that one satisfies the requirements for a tenant where:
The tenant occupies the property in question; and
The tenant is permitted to do so by the landlord in exchange for some form of consideration. It need not be in writing or be for a fixed period of time.
Based on Betty’s payment of rent, and the fact she described the relationship as tenant and landlord in the statement of claim, Brown J., found that the Traders’ policy was required to respond to the claim. The policy holder was entitled to a defence, and indemnity, if required.
This case is a good example of the law of unintended consequences. It should highlight that courts continue to interpret coverage broadly and exclusions narrowly. Where terms remain undefined within a policy, insurers expose themselves to the risk of covering claims they may not have accounted for or received premiums. It reinforces that just because a family member lives in the same home, they may pursue coverage under a policy. Depending on the facts, living situations involving adult children who contribute to the rent or household expenses may not necessarily be excluded from coverage.
In a very surprising turn of events, the long awaited judicial review of MVAC v. Barnes, P16-00087 FSCOwas dismissed as mootwhen it was revealed that the outcome of the judicial review would have no effect on either of the parties appearing before the Divisional Court.
The underlying case considered whether the amendments to the definition of “incurred” in the Statutory Accident Benefit Schedule, which came into effect February 1, 2014, after the accident, only applies to accidents after the date the amendment came into force , or whether it also applies to all services provided after that date, regardless of the date of the accident.
Barnes v MVACF and MVACF v Barnes
The claimant, Ms. Barnes, was involved in a January 3, 2012 accident. Attendant care services were provided by her mother (a non-professional service provider) who took an unpaid leave from her employment. Services continued to be provided after February 1, 2014. The applicable Form 1 amount is unclear, though the claimant was seeking monthly benefits at the statutory maximum for catastrophic impairments of $6,000.00.
Prior to the February 2014 amendment, the general understanding informed by the prevailing jurisprudence was that economic loss served as a criteria for benefit entitlement; it did not affect the quantum of benefits. The quantum of attendant benefits in particular was determined by the applicable Form 1 amount. Once economic loss was established, assuming all other conditions for entitlement, were met, then the quantum was payable in accordance with the Form 1, subject to applicable limits. As Delegate Rogers states “the full prescribed cost of the services was recoverable, up to the maximum payable”. He cites Henry v. Gore as support that economic loss was a “threshold requirement” not intended to limit quantum.
At first instance Arbitrator Sone found that the applicant’s rights vested when she was involved in the accident and that the February 2014 amendments to the SABS did not apply to her.
On appeal, Director’s Delegate Rogers concluded that it was:
... illogical to apply the concept of vested contractual rights to a relationship in which the parties have no direct input in the terms of their relationship, and the terms may be amended from time to time without their input.
Delegate Rogers began his analysis with an examination of subsection 268(1) of the Insurance Act, noting that though the language is “general”, it is also clear, establishing principles that:
displace the concept of a motor vehicle liability policy as a private agreement between an insurer an its insured;
make the SABS a part of every policy; and
make all amendments to the SABS part of every policy, including all terms, conditions, provisions, exclusions and limitations.
Subsection 268(1) states:
Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule.
Delegate Rogers’ characterization of the right at issue is also critical to this decision. He found that the claimant had no right to attendant care after February 1, 2014; this right was “contingent upon her ongoing need, the provision of services, and her incurring an expense.” Applying the February 2014 amendment to accidents pre-dating it therefore does not have retrospective effect, but rather is “legislation of immediate application.
The Delegate criticized earlier decisions for not considering the effect of section 268(1) of the Insurance Act
It what appears to have been a day of revelations by the parties, described as Surprise #1 and Surprise #2 in the judgment, the panel of three judges of the Divisional Court learned that neither party would actually be affected by the outcome of a decision, if they choose to make a decision.
First the Court was advised, that in fact, Ms Barnes’ mother and care provider earned more than the maximum amount available for attendant care under the policy, so regardless of the outcome of this case the applicant would be entitled to the same amount under the old and the new provision of the SABS.
Secondly, it was disclosed that there had been a priority dispute regarding which insurer was liable to pay the applicant’s benefits and it was not the MVACF. While that decision is under appeal, there was no stay in place, so subject to the decision being overturned, the MVACF would not be effected by a decision.
Ultimately, the Court found that resolution of whether the retrospective application of the new regulation results in injustice, or is arbitrary, or if it affects someone so unfairly so as to outweigh its beneficent purpose, are factual inquiries and those facts did not arise in this case.
Meanwhile, in B.D. v. Wawanesa Mutual Insurance Company, 17-005604/AABS the Licence Appeal Tribunal dealt with the application of the February 1, 2014 amendments to the definition of “incurred” under the SABS 2010. It involved a motor vehicle accident that occurred in January 21, 2014. The Adjudicator found that the amendments to the incurred definition that came into effect February 1, 2014 (after the accident) were of “immediate application” and applied to the services adopting the reasoning of Director’s Delegate Rogers in the FSCO appeal decision, MVAC v. Barnes, P16-00087 FSCO.
It seems just a matter of time before this issue will be before the Divisional Court again.
Lisa has an insurance law practice that has focused exclusively on insurance defence for 15 years. Her practice focuses on complex insurance-related litigation, including accident benefits and bodily injury. Read more ...
This decision arises from a motor vehicle accident that occurred on February 8, 2011. The trial took place in January 2019 before Trimble J. After the jury retired to deliberate, the defendants brought a motion for a declaration that the plaintiff’s injuries did not meet the threshold under section 267.5(5) of The Insurance Act. This decision provides a useful summary of the applicable case law and the facts that will likely affect the outcome of a threshold motion.
As Trimble J. stated “Mr. Mann’s case is a little more complex than others.” The plaintiff was involved in a motor vehicle accident on October 15, 2008 in which he injured his neck, shoulders and low back, among other things. His evidence at the trial related to his 2011 accident was that while those injuries were still symptomatic at the time of the 2011 accident, he had generally improved by 50% at that time.
The Effect of the Jury’s Verdict on the “Threshold” Motion
The defendants argued their threshold motion on January 30, 2019 while the jury was deliberating. The jury returned its verdict on February 1, 2019, awarding the plaintiff $15,000 for general (non-pecuniary) damages, $0 each for past and future income loss, past and future health care costs, and for past and future housekeeping expenses.
The question became whether, and to what extent, the trial judge may consider the jury’s verdict on a threshold motion?
While some some judges have held that threshold motions should be decided before the return of the verdict, so that there is no perception that the judge was influenced by the findings of the jury (Chrappa v Ohm,  O.J. No. 1663 (S.C.J.), others have held that the trial judge may consider the verdict on the threshold but is not bound by it (Bishop-Gittens v Lim, 2016 ONSC 2887 (S.C.J.).
Trimble J. determined that the jury’s verdict does not determine threshold and it is not binding (Jugmohan v Royale, 2015 ONSC 1497 (S.C.J.) (CanLll) especially where the finding depends on credibility (Kasap v MacCallum, 2001 Can Lll 7964 (ONCA). His Honour went on to state: “The trial judge may not abandon to the jury his or her statutorily imposed duty to make findings of fact necessary to decide the threshold.”
The Role of Credibility (Where there are no Objective Signs of Injury)
As in any personal injury action, proof of the plaintiff’s claimed injuries and impairments come from the plaintiff’s own subjective evidence. In this case, Trimble J. found that the plaintiff’s credibility was a key issue and “the success of the threshold motion (if not the entire action) may hang upon it.”
In his reasons, Trimble J. stated that plaintiffs generally lose threshold motions where the plaintiff is an unreliable historian, gives contradictory evidence, is not candid with his doctors, gives inaccurate or incomplete information to doctors, does not follow doctors’ recommendations, where surveillance clearly contradicts the plaintiff’s report of pain, injury and disability, and/or the plaintiff’s performance as a witness shows him to be argumentative and uncooperative (Rajic v Atking, 2011 ONSC 1024 (Can Lll) and Smith v Declute, 2012 ONSC 3308 (CanLll).
Trimble J. allowed the defendants’ motion and held that the plaintiff had not met his burden to establish, on a balance of probabilities, that he suffered a permanent, serious impairment of an important bodily function. Accordingly, he was barred from recovering damages for health care costs and non-pecuniary general damages.
With the exception of Dr. Berbrayer, all doctors accepted that the plaintiff had no objective signs of injury on examination. Because no other doctor supported Dr. Berbrayer’s view and all doctors diagnosed the plaintiff based on his subjective complaints, his credibility was critical to the threshold motion. Interestingly, but for one instance, Trimble J. found the plaintiff to be honest and trustworthy. The one exception related to the plaintiff’s post 2011 income. The plaintiff claimed that, following the accident, to survive financially he had borrowed from credit cards and lines of credit, took out loans, and relied on money his children were giving him. According to Trimble J. “the picture was of a man scrambling, financially, to maintain his household.”
This “picture” was not accurate as, on cross-examination, the plaintiff admitted that in March 2013 he had settled his accident benefits claims (for both his 2008 and 2011 accidents) for $125,000, in 2018 he had sold some rental property netting over $400,000 from that sale, and the home he and his wife were living in had a value of about $800,000 with a remaining mortgage of only $112,000. The plaintiff had been making his mortgage payments from 2008 to 2019 on both the rental property and his home. The fact that he received $125,000 in March 2013 and $400,000 only six months before the start of the trial was important to Trimble J. who found that “this could hardly have slipped his mind.”
The plaintiff was also found to be an unreliable historian. What he told one doctor about his state of health and function was often at odds with what he told another doctor. The contractions were described as “significant.” For example, he reported numerous pain complaints including headaches, severe neck pain, shoulder pain, arm pain, hand pain, leg pain, arm numbness, leg numbness, mid-back pain, and fatigue. Yet, he gave a much reduced injury list to other doctors and his reports to various doctors were not consistent. He told one doctor he lost consciousness in his accident, yet makes no mention of this to other doctors. He reported a shift in pain from his right to his left arm, to one doctor, but to no one else. He told some doctors that he no longer did any activities around the house which contradicted his evidence at trial.
Further, following his 2011 accident, the plaintiff applied for CPP disability benefits. In his application, he provided statements in support of his claim where he reported that he stopped working following his prior accident, in 2008, and made no mention of the 2011 accident that was the subject matter of the trial. He also reported limited function and abilities which related to the 2008 accident, and not the 2011 accident, contrary to his evidence at trial and to most of his doctors.
The defendants had commissioned surveillance video footage showing the plaintiff walking for 49 minutes with no signs of difficulty or the need to stop to rest. A second video showed the plaintiff grocery shopping, alone, lifting 3 L bags of milk from the refrigerator into his buggy, pushing the buggy out to his car, unloading the bags into the trunk and back seat of his car, and carrying some of the bags into his home. Later the plaintiff was seen entering his garage, retrieving a gasoline powered lawn mower, using the pull cord to start it, and mowing his front lawn for about 20 minutes. He pushed, pulled and turned the lawnmower without any difficulty. A few moments later he was seen dragging the hose around the back yard and hosing down lawn furniture. At no time did he show any signs of discomfort.
Trimble J. held that the plaintiff’s unreliability as a historian undermined the opinions of the doctors who testified on his behalf (Drs. Berbrayer and Getahun). Further, both doctors conceded that they accepted the history and complaints the plaintiff gave them and that much of their opinion depended on the plaintiff’s credibility. And, importantly, the plaintiff’s doctors were not given copies of the surveillance.
The plaintiff’s position is that his chronic pain since his 2011 accident has created a serious permanent impairment of an important bodily function.
Trimble J. stated that, due to the plaintiff being an unreliable historian, he would not have found that the 2011 accident caused any injuries or aggravated any pre-existing conditions, and at a minimum, he suffered an aggravation of his neck, shoulder and lower back symptoms, originally caused by the 2008 accident. His Honour did hold that the plaintiff suffered an impairment of a bodily function as a result in the 2011 accident.
According to Trimble J., the word “permanent” does not mean “forever.” The impairment must last into the indefinite future as opposed to a predicted time period, with a definite end (Brak v Walsh, 2008 ONCA 221 (CanLll). In this case, it was held that the plaintiff failed to meet his onus of establishing that the aggravation of his 2008 injuries in the 2011 accident was permanent. This decision was based on the fact that His Honour did not find the plaintiff’s doctors, Drs. Berbrayer and Getahun reliable and preferred the evidence of the defendant’s doctors, Drs. Czok, Chang and Finkelstein. Their views were accepted: at best, the plaintiff suffered a temporary aggravation of his 2008 accident related neck, shoulder, and back injuries in the 2011 accident and the aggravation would have lasted not more than 8 to 12, or 14 to 20 weeks after the 2011 accident.
To determine the importance of the bodily function in issue one must ask “Is it one that plays a major role in the health, general well-being, and way of life of the plaintiff?” This is a subjective analysis and what must be considered is whether the injured person, as a whole, and the effect which the bodily function involved has upon the person/s way of life (Vandenberg v Montgomery,  O.J. No. 2789 (S.C.J.) and Ahmed v Callenger,  O.J. No. 4188 (S.C.J.).
Trimble J. did find that the functions that were impaired (the plaintiff’s ability to do work around the house or to go to the Temple often) were important to his life and wellbeing as it existed at the time of the 2011 accident and, therefore, were important.
To determine whether the impairment is “serious” the court is required to consider the seriousness of the impairment to the person, as opposed to the injury in isolation (Mayer v 14744879 Ont. Inc., 2013 ONSC 6806 (CanLll) and Mohammed v Lafleur-Michelacci,  O.J. No. 2476 (S.C.J.). Further, the impairments must go beyond the tolerable. Interference may be frustrating and even unpleasant, but if it does not go beyond tolerable it is not serious (Frankfurter v Gibbins, (2004) CanLll 45880 (ON SCDC) and Branco v Allianz Ins. Co. of Can.,  O.J. No. 3056 (S.C.J.).
In this case, the court did not find that the plaintiff had met the burden or proving, on a balance of probabilities, that his impairment was serious as defined in the legislation and case law, as compared to his condition immediately before the 2011 accident. The notes of the plaintiff’s family doctor showed little change in his condition before and after this accident.
The Take Away
This decision is a reminder when a plaintiff has not suffered any objective injuries, his or her credibility is key. Surveillance, in such situations, should definitely be arranged and, if helpful, used at trial. The defence should consider bringing a threshold motion in cases where there are inconsistencies between the plaintiff’s discovery evidence, what the plaintiff reports to various doctors, and the plaintiff’s evidence at trial, as this case suggests there will be a relatively strong chance of success in such situations.
A recent decision of the Divisional Court has confirmed that the ‘but for’ test was the correct causation test to be applied in accident benefit cases.
In Sabadash v. State Farm et al, prior to the subject accident in March 2011, Mr. Sabadash had a pre-accident history of anxiety, depression and insulin dependent diabetes. When he was terminated from his employment seven months after the subject accident, he applied for income replacement benefits from his accident benefits insurer.
The insurer took the position that based on the assessments of their medical experts, the claimant’s impairments were not caused by the subject accident. Mr. Sabadash initiated a FSCO dispute arguing that he was unable to work due to collision-related impairments.
At the initial hearing the Arbitrator held that “I cannot accept State Farm’s submission that the ‘but for’ test endorsed by the Courts in accident negligence cases is to be applied to a determination of causation in statutory accident benefits context.” Instead, the Arbitrator applied the’ material contribution’ test.
On Appeal, the Director’s Delegate found that the Arbitrator had applied the incorrect test of causation. The Director’s Delegate concluded that the appropriate test was the ‘but for’ test.
The matter was then appealed to the Divisional Court. On appeal, while the parties agreed that the ‘but for’ test was the correct test to be apply in the accident benefits cases, the parties asked the Court to provide an articulation of the causation analysis to be applied.
The Divisional Court referred back to the both the Clements v Clements and Monks v. ING insurance Company decisions summarizing the proper analysis and approach to applying the ‘but for’ test:
Causation is a factual determination made on a balance of probabilities;
The test for establishing causation is the “but for” test;
The Supreme Court in Clements held that, “As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.”
“There is no indication in the SABS of a legislative intent that an insurer’s liability for the accident benefits in issue in this case should be subject to discount for apportionment of causation due to an insured’s pre-existing injuries … The SABS simply states, in clear and unambiguous language, that an insurer ‘shall pay an insured person who sustains an impairment as a result of an accident, medical, rehabilitation and attendant care benefits.’”
In exceptional circumstances, where (i) the plaintiff establishes that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each of whom could be responsible for the loss; but (ii) the plaintiff is unable through no fault of her own, to show that one tortfeasor is the “but for” cause of her injuries because each tortfeasor can point to the other as the possible “but for” cause of the injury, a plaintiff may establish liability against one defendant if that defendant’s conduct materially contributed to the plaintiff’s risk of injury;
This is because public policy dictates that a defendant should not be permitted to escape liability by pointing the finger at another wrongdoer, thereby defeating a finding of causation on a balance of probabilities against anyone; and,
A material contribution to the risk of impairment is one that falls outside the de minimis range.
Ultimately, the Court ordered that the matter be referred back for a new hearing before a new Arbitrator for a proper analysis of the ‘but for’ test in regards to the claimant’s injuries.
This was a much needed clarification on the proper approach to undertake where causation is an issue in accident benefits cases.
Suzanne has represented clients at arbirations and mediations as well as prepared written submissions for accident benefit disputes In addition she has represented clients at CPP tribunal hearings regarding CPP disability benefit applications and appeals. Read more ...
Authored for and Published in CICMA March 2019 Newsletter.
Your child has been invited to her best friend’s birthday party at Charlie’s Pizza Palace.
You drop her off at the party. Before you can leave to enjoy the next two hours of freedom, the clerk at Charlie’s hands you a piece of paper and says, “sign here”. Of course, it’s a Release of Liability Waiver, whereby in exchange for allowing your exuberant child to play with her friends in the arcade, or enjoy one of Charlie’s famous pizza rolls, you agree to absolve Charlie’s (and his employees, family members, friends, enemies, and anyone in Canada named Charlie) from liability if your child gets hurt.
Do you sign?
If no, will your child ever speak to you again after you and she are escorted off the property?
If yes, and she gets hurt, can she sue Charlie’s?
Waivers and Liability Release Clauses
Let’s take a step back and discuss these Waiversappearing every time you try to do an activity with an operator/occupier, from skydiving, to laser tag, to arts & crafts.
The general rule on Waivers in Canada is that they are valid and effective if the language of the exclusion refers to the circumstances of the accident and, in the case of negligence, the language excludes liability for risks or injuries caused by negligence. Furthermore, the operator must take reasonable steps to bring the exclusion or Waiver to the attention of the participant so that its effect is understood. Where the evidence confirms that an adult knowingly signs a form that completely absolves the operator or his or her agents, the exclusion will be effective.
In theOntario Superior Court of Justice case of Isildar v. Rideau Diving Supply, a 28-year old had a tragic accident while participating in a scuba diving activity. He drowned. His family sued the operator, who relied on a Waiver and Liability Release. Roccamo J. reviewed the jurisprudence on waivers/liability releases and summarized it as follows:
Based on case law as it has developed, a three staged analysis is required to determine whether a signed release of liability is valid. The analysis requires a consideration of the following:
Is the release valid in the sense that the plaintiff knew what he was signing? Alternatively, if the circumstances are such that a reasonable person would know that a party signing a document did not intend to agree to the liability release it contains, did the party presenting the document take reasonable steps to bring it to the attention of the signator?
What is the scope of the release and is it worded broadly enough to cover the conduct of the defendant?
Whether the waiver should not be enforced because it is unconscionable?
She held, on the facts of that case, that the release in question was valid and, accordingly, the action was dismissed.
Waivers and Children
We know that Waivers can be enforced against adults, because Waivers are contracts and adults are allowed to enter into contracts. This principle was recited in Isildar, as follows:
It is a general principle of contract law that where a party signs a document which he knows affects his legal rights, the party is bound by the document in the absence of fraud or misrepresentation, even though the party may not have read or understood the document.
But what happens if a child signs a Waiver?
My Grade 8 daughter recently brought home a permission slip from school so she could go skating with her class at a local arena. Unsurprisingly, included with the forms from school was a two-page Waiver form from the arena. The form asked us to agree to absolve the arena (and pretty much everyone who lives within 100 kilometres of it) from any and all liability if my daughter was hurt on their premises. The way the document was worded, we would be absolving them from anything and everything that could possibly happen that day, including falling on ice, getting knocked down by a Skate Patrol person, getting stabbed by skates, drowning, and falling through the black hole at Centre Ice.
My options were to sign the form and send her to school that day wearing my hockey equipment, or saying “nope, sorry”. Fearing significant backlash from my 13-year-old (who was already getting her skates ready for sharpening), I said “You sign it.” She did. And she went skating and, thankfully, returned unharmed.
Why did I tell her to sign it? Because a contract signed by 13-year-old is most likely unenforceable in these circumstances. If heaven forbid something would have happened to her, I would have challenged the arena to try and enforce the alleged contract.
This isn’t to say that we would have won.
After the skating trip, I did some research and was surprised to learn that Canadian case law on minors and Waivers doesn’t really exist. Except in British Columbia, where the Legislature put it right into their Infants Act that a contract made by a minor at the time the contract was made is unenforceable against her, except in specified circumstances that in most cases wouldn’t apply to Waivers.
There is no authority anywhere else in Canada that states that a Waiver signed by a child is unenforceable against her. But I would be surprised if a judge enforced a Waiver against a child, given the hurdle of satisfying a court that the contract was not detrimental to the child’s interest.
The other option of course is to sign a Waiver on your child’s behalf. Most smart operators/occupiers won’t allow a child to sign a Waiver. They insist the parent/guardian sign it.
Is this enforceable against the parent of child if the child is injured?
It would likely be unenforceable in British Columbia because of another provision in the Infants Actthat bars parents and guardians from entering into binding contracts on behalf of infants, except in strict accordance with the provisions of the Act.
As for elsewhere in Canada, it remains unknown if a parent/guardian can waive a minor’s rights to claim against anyone protected by a Waiver. My own opinion on this issue is that a parent/guardian cannot waive a child’s legal rights to sue an operator/occupier.
I find comfort for my (non-binding) opinion in the rules of court and jurisprudence dealing with children in litigation. Among other things, generally speaking a minor cannot bring an action without a litigation guardian (an adult). Moreover, a settlement of an infant claim needs court approval. Therefore, I find it difficult to accept that a parent/guardian would be able to sign away a child’s rights to sue (usually at a busy counter with children running and screaming nearby) to the child’s detriment but would otherwise be precluded from settling a court action to the child’s benefit without court approval.
That isn’t to say that a parent can’t sign away their own legal rights to claim for loss of care, guidance, or companionship. Whether that Waiver is enforceable against the parent would be subject to the same enforceability principles discussed above.
Do you Sign?
So, having now read about everything you were afraid to learn about Waivers, do you sign Charlie’s Pizza Palace’s Waiver? Or do you move to British Columbia?
[Insert here image of your child staring up at you with those big puppy-dog eyes]
For the purpose of this article, the term “Waiver” is used to include liability release clauses.
Under the common law, contracts which are detrimental to the interests of an infant (person under 18) are void. See for example Altobelli v. Wilson,1957 CarswellOnt 43,  O.W.N. 207, 5 R.F.L. Rep. 326.
This is my opinion for the purpose of this article and is notto be construed as legal advice. By reading these next few paragraphs, you are hereby waiving your rights to sue me or my firm for anything whatsoever. It doesn’t matter if you are a child or a parent/guardian of a child. You can’t sue us. Thank you.
Note that under section 40 of the BCInfants Act:
40. A guardian may make a binding agreement for an infant,
(a) if the agreement involves a consideration not greater than $10 000, with the consent of the Public Guardian and Trustee, or
(b) in a case other than one referred to in paragraph (a), with the approval of the court by order made on the petition of a party to the agreement.
In what can only be described as a Pyrrhic victory, a recent Ontario Superior Court summary judgment decision highlights the employment risks present in temporary lay-offs during a business downtown....
In what can only be described as a Pyrrhic victory, a recent Ontario Superior Court summary judgment decision highlights the employment risks present in temporary lay-offs during a business downtown. This decision is a strong reminder that lay-offs are not an automatic contractual right and can trigger a constructive dismissal claim. This decision also confirms that employees must take offers of re-employment seriously when alleging constructive dismissal.
The facts of the case are straight forward and likely all too familiar to many small business owners. The plaintiff was a 53 year old Health & Safety Training Specialist employed with Strone Inc. for 23 years. Strone was an emergency restoration company that experienced an economic downturn in 2014. This caused permanent lay-offs in 2015.
On October 15, 2015 the employer temporarily laid off the plaintiff along with two other employees. As part of the temporary lay-off, the employer agreed to maintain the plaintiff’s benefits but asked him to return company property. They also asked the plaintiff to keep them updated on his availability in case they needed to recall him.
Also on October 15, the plaintiff advised Strone that he was available for work “as always”. He sent a similar e-mail on October 19, 2015 affirming his availability to work. The next day, Strone was retained to repair significant damage to a hotel. There was apparently some internal discussion of recalling the plaintiff given his particular expertise and the scope of project.
Before any recall occurred, the plaintiff retained counsel. On October 27, his lawyer informed Strone that they considered the temporary lay-off to constitute a constructive dismissal. At some point, Strone’s own counsel advised that there was a possibility he would be recalled shortly. The plaintiff’s counsel immediately wrote back advising that the plaintiff felt the relationship had broken down and that he would not be returning to work.
On November 10, Strone’s counsel sent a letter recalling the plaintiff to “active employment” as of November 16, 2015. This was followed up by e-mail on November 12, 2015 with no response. The plaintiff subsequently commenced the action alleging constructive dismissal. The plaintiff argued that there was no term in his contract of employment that allowed Strone to lay him off temporarily and that the offer of re-employment was a sham. He claimed for 24 months of pay in lieu of reasonable notice.
In addressing the constructive dismissal claim, Pollak J., agreed that the plaintiff had been constructively dismissed by the employer’s failure to provide him with work and compensation contrary to the fundamental terms of his employment. In very short reasons, Pollak J., found that the plaintiff’s alleged agreement to the lay-off or his understanding of the business difficulties had the effect of altering this significant term of employment.
The main battleground in this claim, as with many constructive dismissal claims, was whether the plaintiff had failed to mitigate his damages by refusing the offer to return to work. Reviewing the seminal case of Evans v. Teamsters, Local 31, Pollak J., confirmed that when assessing the reasonableness of a re-employment offer, one should look at whether the salary offered was the same, the working conditions were substantially similar, the work was not demeaning, and the relationships involved were not acrimonious. Most importantly, an employee was not obliged to accept re-employment in an atmosphere of hostility, embarrassment or humiliation.
Pollak J. concluded that the employer’s offer of re-employment was reasonable and should have been pursued by the plaintiff. He noted that the plaintiff had provided no compelling evidence that a return to work after 3.5 weeks was too embarrassing, humiliating and/or degrading.
Because of the plaintiff’s failure to mitigate his losses by accepting re-employment, his damages were capped at 3.5 weeks of pay in lieu of notice. For completeness, Pollak J., found the claimant would have been entitled to 18 months of pay in lieu of notice.
While he was ultimately successful in proving he was constructively dismissed, the employee’s refusal to accept a return to work after a 3.5 week lay off resulted in the forfeiture of 17 additional months of notice. It is obvious that the judge did not accept the plaintiff’s bald statement that a return to work after 3.5 weeks would have been demeaning or embarrassing. Employees reviewing this decision should take note that their obligations to mitigate when faced with a constructive dismissal are the same, if not arguably more onerous, than those permanently dismissed. Absent concrete evidence of a hostile work environment, they may be obligated to accept an offer of re-employment.
Employers reviewing this decision should also take note that simple awareness of the on and off again nature of the business will be insufficient to read in a contractual term allowing temporary lay offs. Although not specifically mentioned, it is likely the plaintiff did not have a written contract of employment. In an age of increasing judicial scrutiny and legally savvy employees, it is essential that employers and employees sit down and set their agreements in writing to avoid the risk of misunderstandings and potential claims.
On a final note, and speaking generally, statutory notice and severance are not subject to the obligation to mitigate. I would argue that regardless of the plaintiff’s failure to mitigate, the finding of a constructive dismissal would have entitled the plaintiff to the minimum statutory notice of 8 weeks notice pay, and potentially 23 weeks of severance pay if the employer’s payroll was large enough.
In Ferro v. Weiner, the late Enid Weiner owned a house on Lake Eugenia. From the late 1980s or early 1990s, it was Enid’s sole residence, before she moved to a nursing home in 2008 or 2009. Although she never resumed full-time residence at the house, her three adult children and their families all continued to use it as a cottage. She would occasionally stay there with them. At all relevant times she was the sole owner of the house.
In May 2010, a young man drowned at the house while attending a party. Enid’s daughter Regan, son Scott, and daughter-in-law Sandy were at the house during the incident. The victim’s parents and sister sued Enid, Regan, Scott, and Sandy.
Scott’s insurer, TD Insurance, defended and settled the plaintiffs’ claims. TD then brought a summary judgment motion, seeking a declaration that Intact Insurance was bound to defend and indemnify all defendants against the claims advanced by the plaintiffs. Intact insured Enid as the sole named insured under a Homeowners – Broad Form policy. TD argued that the defendants were insured under the Intact policy because they were all “living in the same household” as Enid at time of the incident.
The motion was granted, and the motion judge ordered a declaration that Scott, Sandy, and Regan were insured under the Intact Policy. She found that Scott and his family were not visitors to the house. She noted that Scott attended at the house when he wished and cared for it, as an owner would, and that he later took an ownership interest in it. Referring to Canadian Universities’ Reciprocal Insurance v. Halwell Mutual Insurance Co. (2002), 2002 CanLII 27712 (ON CA), she held that “household” can have a flexible meaning, and that “the meaning must be gleaned from interpreting its use in the policy of insurance using the rules of interpretation of contracts and of insurance policies, including that any ambiguity is to be resolved in favour of the insured.” She found that in the context of the intact policy and the property in question, Scott and his family were included in Enid’s household.
The Court of Appeal disagreed and allowed Intact’s appeal. The Court of Appeal held that the phrase “living in” was relevant to the question of whether the house was Scott’s residence. It was not.
The Court also held that the word “household” in the context of a homeowners policy refers to a community, most readily understood by analogy to a family unit:
A household is constituted not only by its members’ patterns of living with each other, but also by their settled intentions. Accordingly, courts have found that a person can maintain membership in a household despite lengthy absences from a common residence, provided there is continued self-identification as a member of the household, with a settled intention to return to the common residence. For example, university students do not necessarily cease to be members of their parents’ household when they move away for the academic year, provided they continue to view the parental home as home base and have an intention to return: Canadian Universities’. Similarly, a parent who is absent from the family home for extended periods because of the requirements of work does not therefore cease to be a member of the household during those absences as long as the parent intends to return…
On the facts of this case, the Court held that applying the established common law understanding of “household,” the facts found by the motion judge were incapable of supporting a finding that Enid and Scott, Sandy, and Regan had a “common life with the intimacy, unity, and permanence required to constitute a household.” At the time of the accident, Enid was living in a nursing home. Scott lived with his family in the city and had organized his life around his urban household. Prior to entering the nursing home, Enid lived with Scott’s brother, and not with Scott and his family.
It is also interesting to consider how the Court of Appeal rejected the respondents’ argument calling for a broad interpretation of the coverage clause at issue:
Whether a case involves a coverage clause or exclusion clause may influence the result in borderline cases, but this is not a borderline case. Where the facts are inconsistent with a person being a member of a household in accordance with settled jurisprudence, the fact that the case involves a coverage clause provides no assistance.