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Summary Judgment Motions: Watch Your Step

 Jun 26, 2018 10:15 PM
by Krista Groen

The Plaintiff’s claim in Walsh v. Papadopoulos arose as a result of a fall that occurred on the basement stairway of a home owned by the Defendant, Antonio Pirone. Two days before the fall, the Plaintiff and her sister, the Defendant, Easter Papadopoulos, had been at their sister’s house in Paris, Ontario to bake. Baskets of baked goods were later transported in Ms. Papadopoulos’ vehicle to the residence of her boyfriend, Mr. Pirone, in Toronto.

The Plaintiff entered Mr. Pirone’s home through the side door. The weather had been wet that day. The Plaintiff was carrying a large basket with both hands which blocked her view of what was at her feet. Ms. Papadopoulos allegedly instructed the Plaintiff to take the basket that she was carrying downstairs. The Plaintiff proceeded to the basement staircase, fell on the steps and fractured her right ankle.

Ms. Papadopoulos brought a summary judgment motion seeking to dismiss the Plaintiff’s claim against her on the basis that she owed no duty of care to the Plaintiff at law.

In support of her contention that Ms. Papadopoulos was an occupier, the Plaintiff relied on the fact that Ms. Papadopoulos had a key to the premises along with various texts suggesting, among other things, that Ms. Papadopoulos spent the majority of her time at her boyfriend’s house.

Ms. Papadopoulos alleged that the Plaintiff failed to submit evidence that would result in the conclusion that she was an occupier of the premises. The Plaintiff provided no objective evidence that the steps in question were unsafe, improperly constructed or maintained. The Plaintiff also had no expert evidence to suggest that there was any defect in the design or maintenance of the steps.

Although there was contradictory evidence, Justice Dow found that the evidence and a matrimonial law precedent being relied on by the Plaintiff could lead to the conclusion, on a balance of probabilities, that Ms. Papadopoulos owed the Plaintiff a statutory duty under s. 3 of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2.

Ms. Papadopoulos was required to show that even if she owed a duty to the Plaintiff and that such a duty was breached, it would not result in a finding of even 1% liability attributable to Ms. Papadopoulos. According to Justice Dow, Ms. Papadopoulos failed to establish this. He concluded that there was a genuine issue for trial with regard to liability and declined to grant the Defendant’s summary judgment motion.

In this case, it did not matter that the Plaintiff failed to provide any objective or expert evidence of any defect or improper maintenance of the steps in question. The key was the Plaintiff’s evidence that Ms. Papadopoulos instructed the Plaintiff to take the basket downstairs when she knew that the Plaintiff was unable to use the handrail on the staircase, which could result in a trier of fact finding that a duty of care was triggered and potentially breached.

As we often see in similar cases involving summary judgment motions, this decision makes it clear that if the motions judge has any doubt as to whether a Defendant can be found even 1% liable on the basis of the available evidence and case law, summary judgment is not likely to be granted. While they can still be a very useful tool to dismiss slip and fall cases, summary judgment motions seem best used in circumstances where the facts do not create even the potential for liability to be found outside the strict confines of the Occupiers’ Liability Act.

See Walsh v. Papadopoulos, 2018 ONSC 1828 (CanLII).


Krista has a diverse insurance law practice which focuses on bodily injury litigation, including general negligence/liability claims, motor vehicle accidents, commercial general liability, homeowners’ liability and occupiers’ liability, as well as priority/loss transfer disputes between insurers.
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Smoke ‘Em If You’ve Got ‘Em: Amended Bill C-45 Passed By Senate

 Jun 26, 2018 7:00 AM
by Devan Marr

On June 19, 2018, the Senate voted to pass Bill C-45, the federal government’s bill to legalize and regulate recreational cannabis in Canada. This paves the way for Royal Assent. After a “buffer period” to allow provinces and municipalities to complete preparations, legalization is expected to take place sometime in the Fall of 2018. Regardless of personal opinions, legalization will likely have far-reaching consequences on the Canadian insurance industry.

Generally, the proposed Act will allow adults to purchase, share, and possess up to 30 grams of dried cannabis, grow up to four plants per residence for personal use, and make cannabis products including food or drink. Certain rights can be modified by corresponding provincial legislation, such as Ontario’s Cannabis Act 2017, SO 2017, c. 26, Sched. 1, which restricts the age of purchase to 19 as opposed to the federal minimum of 18.

In addition to legalizing the possession and production of recreational cannabis, Bill C-45 provides a regulatory framework for the distribution and management of the cannabis supply in Canada. It grants significant powers to a Cabinet designate to levy administrative monetary penalties on individuals who are in violation of various provisions. Significant restrictions will also be placed on marketing, branding, and advertising targeted at youth.

Additionally, new criminal penalties will be imposed on the illegal distribution or sale of marijuana outside of the regulated systems put in place by the provinces, possession over the 30 gram limit, or production of cannabis beyond the personal use limits. These penalties will range from modest tickets and fines for small infractions to up to 14 years in prison for more serious offences. Notably, the act of taking cannabis across Canada’s borders carries with it a penalty of up to 14 years in jail.

It will be up to the individual provinces to determine how cannabis will be distributed in their respective jurisdictions. Ontario has opted for a centralized government monopoly where cannabis will be sold through the Ontario Cannabis Store (“OCS”). Nova Scotia has put in place a similar government monopoly. In contrast, Manitoba plans to allow a cluster of four private companies to distribute cannabis. Similarly, each province and municipality will be entitled to restrict the consumption of cannabis on public property.

After 95 years of prohibition, insurance policies and practices have generally excluded anything to do with cannabis. It was only recently that some insurers have begun to include medical cannabis in their group benefit plans, despite medical cannabis having been legalized many years previous. Previously, losses arising from fires caused by growing cannabis were excluded as arising from criminal acts. With the legalization of home growing, questions remain as to whether failing to tell your insurer about your four cannabis plants would be sufficient to constitute a material change in risk. Certain independent adjusting firms are also rolling out specialized claims services for the cannabis industry in an effort to get ahead of the coming changes. Although the full impact of legalization remains to be seen, disputes involving coverage under home owner policies, reasonable medical expenses, and human resources practices will likely be quite common in the initial transition.

The full text of Bill C-45 can be found here.


Devan Marr’s practice has focused on bodily injury, long term disability, statutory accident benefits, and employment claims.

Emerging Issues, Legislation  
  

Who am I? The Case of the Named Insured and the Owner

 Jun 25, 2018 10:00 AM
by Dan Strigberger

What happens when an auto insurer sends a policy termination notice to the named insured, but the named insured does not own the vehicle insured under the policy?

In Ontario (Minister of Finance) v. Traders General Insurance Co. (c.o.b. Aviva Traders) an individual was seriously injured as a passenger in a Hyundai motor vehicle owed by Peter Leonard. Peter Leonard’s spouse, Anne Leonard, had a policy with Traders that was terminated for non-payment of premiums prior to the accident. The Hyundai had been added to the policy a couple of years prior to the accident.

To cancel Anne Leonard’s policy, Traders had sent a termination notice by registered mail. It did not send a termination notice to Peter Leonard, and appeared to have no knowledge at the time of cancellation that he owned the Hyundai insured under the policy.

The injured party made a claim to the Fund for accident benefits and the Fund subsequently commenced a priority dispute with Traders, arguing – for a number of reasons – that the policy had been improperly cancelled and remained in force at the time of the accident.

The Superior Court sided with the Fund and held that Traders did not terminate the policy properly because it had failed to send the owner of the vehicle (Peter) a termination notice. The court stressed that owners must be properly identified at policy inception and thereafter, strict compliance with the statutory cancellation requirements is necessary, and insurers must notify named insureds of attempts to cancel a policy. The court held that under statutory condition 11, Traders could not validly cancel the policy unless it gave Peter Leonard fifteen days’ notice of the cancellation. Thus, the policy was not cancelled properly and the court ordered Traders to pay the Fund the amount of its accident benefits settlement with the injured person.

The Court of Appeal agreed with the Superior Court and dismissed the appeal. Among other things, the Court of Appeal held that Traders failed to comply with Statutory Condition 11 (1), which requires the notice to be given to “the insured”. In this case, Peter was an “insured” because he was the owner of the vehicle:

The policy that the appellant purported to terminate is an owner’s policy, which is defined in s. 1 of the Insurance Act as:

A motor vehicle liability policy insuring a person in respect of the ownership, use or occupation of an automobile owned by that person and within the description or definition thereof in the policy. [Emphasis added.]

It was never an issue in this case that before the purported termination, the policy was valid insurance that insured Peter Leonard as the owner of the insured vehicle.

Therefore, because the policy at issue was valid, and because it was an owner’s policy, the “insured” under that policy was Peter Leonard, the owner of the vehicles insured by the policy. 

To summarize, the only issue was whether the notice of termination had the effect of terminating that policy. The notice was only sent to Anne Leonard, who was not the insured for the 1991 Hyundai vehicle because she did not own it. Because the notice of termination was not sent to the insured, as required by statutory condition 11(1), it was not effective to terminate the policy, and the trial judge made no error in so holding.

Traders should raise alarms for insurers who might not have done their due diligence when writing owners policies for people who might not have owned the vehicle being insured. This case reinforces the principle that auto insurers are held to extremely strict compliance standards when it comes to terminating an auto policy. The courts will not endorse a purported policy termination if the insurer failed to dot its I’s and cross it’s T’s.

Readers might recall the troubling decision in Echelon General Insurance Company v. Her Majesty the Queen, wherein the Superior Court held that an improperly terminated policy remains in full force and effect (in perpetuity) until the policy is terminated properly. Of course insurers rarely, if ever, revisit policies that have they have purported to terminate until a loss occurs, meaning that these improperly terminated policies can expose insurers to paying claims on policies that have not been generating any premiums for possibly many years.

To every insurer who writes auto policies, I ask: Do you know who owns the vehicles insured under your policies?

See Ontario (Finance) v. Traders General Insurance (Aviva Traders), 2018 ONCA 565 (CanLII).


The son of a plaintiff lawyer, Daniel decided in law school that he wanted to work for the insurance industry. Read more...

Coverage, Risk  
  

Jump, Jump – Just not off concrete walls!

 Jun 25, 2018 9:45 AM
by Laura Emmett

The recent Court of Queen’s Bench of Alberta appeal decision in Hache v. Western Edmonton Mall Property Inc. sheds some light on occupiers’ liability claims in Ontario. The Plaintiff brought a claim against West Edmonton Mall following an injury in a parking garage. The Mall brought a motion for summary judgment on the basis that the incident was not foreseeable which was dismissed by a Master. The Defendant appealed that decision. It is the first case which considered the Supreme Court of Canada’s decision in Rankin (Rankin’s Garage & Sales) v. J.J. (2018 SCC 19 (CanLII), which was released in May, 2018.

The Court noted that Dougherty v. A Clark Enterprises Ltd. (2015 ABQB 562 (CanLII)) set out a three part test to assess whether an occupier breached the standard of care under the Occupiers’ Liability Act (R.S.A. 2000, c. O.4) – (1) was the risk reasonably foreseeable; (2) did the Defendant breach the appropriate standard of care; and (3) did the visitor willingly accept the risk.

First, the Court considered whether it was reasonably foreseeable that a visitor to the Mall would walk down a vehicle entry and take a running leap over a 44.5 inch concrete wall. The Court found that it was not. The Court accepted the Mall’s argument and concluded, from an objective perspective, that the risk of a pedestrian jumping and falling off an entry ramp intended for sole use by vehicles – which did not include a pedestrian walkway – was not reasonably foreseeable by the occupier prior to the incident involving the Plaintiff.

Second, the Court considered whether the Mall breached the appropriate standard of care. In doing so, the Court noted that the standard was reasonableness; not perfection. The occupier did not need to remove every possible danger. The Court found that there was no evidence that, at the material time, the ramp was either defective or unsafe for use by visitors. The construction was in compliance with the applicable Building Code at the time it was built. While the Building Code had subsequently changed, the Court found that there was no evidence to support a finding that the Mall was required to upgrade the concrete walls in order to meet the requisite standard of care.

The Court also rejected the argument that the Mall should have foreseen the accident and installed warning signs. Where a danger was so obvious and apparent that anyone would be aware of it, there was no duty to warn.

Finally, the Court considered section 7 of the Occupiers’ Liability Act which provides that “[a]n occupier is not under an obligation to discharge the common duty of care to a visitor in respect of risks willingly accepted by the visitor.” The Court referenced Rankin which recognized that the duty of care was not eliminated where a person, who is on premises, was deemed to have “willingly assumed all risks.” Instead, in such circumstances, occupiers are held to a lower standard of care.

On this point, the Court found that the Plaintiff was deliberate and purposive in his decision to knowingly and voluntarily walk down the vehicle ramp and jump over the concrete wall of the entry ramp. Neither the entry ramp nor the concrete retaining walk constituted a “hidden danger.” Even if the Court accepted that the parkade ramps were regularly used by pedestrians to access the street, purposively jumping over the ramp’s concrete wall was “hardly the conventional way for using the ramp.” The Court concluded that the Plaintiff made a poor decision, with full knowledge of the danger inherent in this decision, to use the ramp in an unconventional manner. The Court concluded that it could only translate into one thing – the Plaintiff willingly accepted the risk inherent in his jump. The motion for summary judgment was granted.

In similar cases, it is important to lead evidence regarding the purpose of the area where the incident occurred. If the actions that lead to an injury fall outside of the anticipated behaviour of visitors, an occupier may be able to avoid a finding of liability.

See Hache v West Edmonton Mall Property Inc, 2018 ABQB 461 (CanLII).


Laura has a diverse practice where she focuses on accident benefits, bodily injury claims, product liability, cyber liability, privacy law and drone liability. Read more ...

  

ONCA Sides with Lessor in Coverage Dispute

 Jun 14, 2018 4:00 PM
by Dan Strigberger

What happens when a Certificate of Automobile Insurance specifies that the policy includes coverages under certain endorsements, when those endorsements never make it onto the policy?

The Certificate and OPCF Endorsements

Ontario’s standard automobile policy (OAP1) offers a number of forms and endorsements that FSCO approves.

One such form is the Certificate of Insurance, which is an approved form that sets out, among other things, the specific terms of coverages and endorsements that form part of the policy in question. Although the standard Certificate is approved by the Superintendent of Insurance, insurers are allowed to submit their own version of a Certificate for approval, something that many insurers do.  

Meanwhile, two of many available endorsements to the auto policy are, as follows:

  • An OPCF 23A endorsement provides for payment to a lienholder in the event of damage to the vehicle.
  • An OPCF 5 endorsement allows the lessor to rent or lease automobile(s) to the lessee who has completed the Ontario Application for Automobile Insurance - Owner’s Form (OAF 1). The endorsement expressly allows a lessor to rent or lease a motor vehicle to a lessee who has its own auto insurance policy. It also provides the standard auto coverages to a lessee under the policy as if the lessee were the named insured.  

This Case

In Coast Capital v. Old Republic, a trucking company named 62254641 Canada Inc. (“622”) leased a 2008 Peterbilt tractor from a third party. Old Republic issued a Certificate of Automobile Insurance to 622 that described that vehicle. The Certificate also included a box for describing lessors and lienholders. The box stated:

Lienholders (to whom loss may be jointly payable) (if applicable)

 

Name                                                               Address

 

AS PER OPCF 23A FORMS

 

Lessor (if applicable)

 

Name                                                               Address

 

AS PER OPCF 5 FORMS

On June 15, 2012, 622 leased two more tractors, this time from Coast Capital. Coast Capital had informed its insurance broker in writing that it wanted third party liability coverage in the minimum amount of $2,000,000, and indicated “The policy must contain an OPCF #5 Permission to Lease or Rent Endorsement.” This document was found in Old Republic’s underwriting file. However, there was no evidence as to when it received that document.

On July 5, 2012, Old Republic issued an OPCF 25 Change Form showing 622 as the insured, and listing the two new Peterbilt tractors. The new tractors were identified as automobiles 2 and 4. The policy change that was noted on the form indicates “Automobile added to policy (Auto No. 2 and 4)”. The OPCF 25 also listed Coast Capital as the lessor of vehicles 2 and 4. It also recited that “all other terms and conditions of the policy remain the same”.

Of note, the OPCF 25 listed other related Endorsements that were mentioned in the original Certificate but failed to mention the OPCF 23A or 5 forms.

On November 12, 2012, one of the 2009 leased Peterbilt tractors (auto 2 or 4) was involved in a motor vehicle accident. Old Republic denied liability coverage to Coast Capital, taking the position that the OPCF 5 was not part of the policy.

The application judge held that the policy included an OPCF 23A form but did not contain an OPCF 5 form. He held that the OPCF 5 was never part of the Certificate of Insurance or added by the OPCF 25 form.

The Court of Appeal allowed the appeal and found coverage for Coast Capital under the policy. At the start of its analysis, the Court held that coverage under the standard auto policy is defined by the Certificate of Insurance on any given policy

The Certificate in question was not on the default Certificate form approved by the Superintendent, but it was on a FSCO approved form that Old Republic had submitted for its use. The Court noted that Old Republic had added the phrase “AS PER OPCF 5 FORMS” to the original Certificate in this matter, but that the phrase was not included on Old Republic’s approved form. The Court held that if Old Republic added the reference to the OPCF 5 on the Certificate in this case, the Certificate must have intended to include coverage for lessors and lessees – even though the actual OPCF 5 form was not attached to this policy. Further, had Old Republic included the phrase “AS PER OPCF 5 FORMS” to its approved Certificate, it would mean that its usual practice was to insure both lessees and lessors (as the OPCF 5 would do). The court concluded that if there was any ambiguity, it was caused by Old Republic’s uses of an “unapproved altered standard form”, and it would have to bear the consequences of doing so.

The Court also held that this finding was consistent with the commercial realities of the transaction. It concluded:

I conclude that the OPCF 5 endorsement is part of the Certificate; the insurer intended to provide liability coverage to both the lessor and lessee. The OPCF 25 Change Form did not delete that coverage, but added new vehicles. Absent deletion of the OPCF 5 coverage, I conclude that Coast Capital is entitled to the benefit of that coverage. Old Republic’s insertion of the OPCF 5 language into the Certificate accords with the commercial reality of the transaction. Old Republic was providing automobile insurance to a trucking company’s fleet. The trucking company leased multiple vehicles, to the knowledge of the insurer. It makes commercial sense for the lessors who were financing the purchase of the vehicles to protect themselves from liability as the owners of those vehicles when they would have no control over the trucking company operations.

There is nothing in the Certificate that suggests that the liability coverage described in the policy is solely for the benefit of the lessee.

Takeaways

The major takeaway from this case is that the Certificate of Insurance governs coverage under the policy. If the Certificate references a particular Endorsement on the policy that is not necessarily attached to the policy, the Court will defer to the coverage specified on the actual Certificate used in the case to determine coverage.

Insurance companies that insure leased/rented vehicles – and leasing/rental companies that lease/rent vehicles to others -- should review their various Certificates on a case-by-case basis to make sure they contain the coverages that the parties intended to be covered.

See Coast Capital Equipment Finance Ltd. v. Old Republic, 2018 ONCA 540 (CanLII), http://canlii.ca/t/hshq3


The son of a plaintiff lawyer, Daniel decided in law school that he wanted to work for the insurance industry. Read more...

  

Mediation: What’s It Gonna Cost You?

 Jun 12, 2018 11:00 AM
by Shalini Thomas

The plaintiff was successful in his lawsuit against a speedway for injuries sustained while moving out of the way of a stock race car that came off its track. At the end of the seven-day trial in Belleville, the parties could not agree on costs.

In coming to its decision, the Court considered various issues, including the refusal of the defendant (i.e. the defendant’s insurer) to participate in mediation despite numerous proposals from the plaintiff for same.

The Court stated that while mediation was not mandatory for the jurisdiction, a party’s unreasonable refusal to mediate can attract an adverse costs award. The factors considered in such a determination include the nature of the dispute, the merits of the case, whether other methods of settlement have been attempted, whether the costs of mediation would be disproportionately high, whether mediation would delay a trial and whether the mediation had a reasonable prospect of success.

In this case, the Court found that the insurer took a “tough and uncompromising stance” in refusing mediation as, contrary to the insurer’s position, the facts of the case indicated that neither side had a strong position on liability. As such, the Court found that the defendant’s refusal to mediate deprived the parties of an opportunity to settle the case without the necessity for trial and without incurring substantial costs.

In practical terms, the Court would have awarded the plaintiff approximately $190,000 (plus HST) in costs but for the defendant’s unreasonable refusal to mediate, resulting in an award of $210,000 (plus HST).

This decision serves as a cautionary tale for those jurisdictions where mediation is not mandatory. In these jurisdictions, insurers should think long and hard before refusing to participate in a requested mediation as it may end up costing them in the end.

See Canfield v. Brockville Ontario Speedway, 2018 ONSC 3288


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.

  

Down for the Count: Notice of Termination Starts the Limitations Clock

 Jun 11, 2018 1:00 PM
by Devan Marr

Two recent decisions from Ontario highlight that unlike fine wine, wrongful dismissal claims do not get better with age. The Superior Court decision of Kennedy v. RBC, and the Court of Appeal decision of Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc, highlight that limitation periods can be live issues where employees engage in protracted pre-litigation negotiations or are provided a long period of working notice. These decisions re-affirm the general rule that once proper notice of an employee’s termination is given, the limitation clock starts to run.

In Kennedy, the defendant brought a summary judgment motion to dismiss the plaintiff’s action as limitation barred. The plaintiff had been an employee of Royal Bank of Canada in Toronto. She moved to work at a Royal Bank in Trinidad and Tobago. For reasons that are unclear, sometime prior to November 27, 2009, the plaintiff resigned from the company. She subsequently retained counsel and attempted to rescind her resignation. On December 17, 2009, RBC determined that the employment relationship was irreparably damaged and advised that they would be offering her a severance package. What followed was several months of back and forth negotiations between lawyers for the parties. Eventually, no settlement was reached and the plaintiff issued a claim sometime after May 26, 2012.

The plaintiff attempted to rely on s. 5(1)(b) of the Limitations Act to claim she had not “discovered” her full claim until July or November 2010, when certain run-off payments from RBC were not received. Nakatsuru J. disagreed. The correspondence between the parties made it abundantly clear that by May 26, 2010, the plaintiff was aware of her claims and was explicitly threatening litigation. In finding that the plaintiff’s claim was limitation barred, the judge outlined several basic principles:  

  1. Generally speaking, a cause of action in contract arises when the alleged breach occurs;
  2. In wrongful dismissal claims, the breach occurs when insufficient notice is provided upon termination;
  3. A plaintiff does not need to know the full extent of the damages suffered, but merely that they are aware some loss occurred due to the defendant’s actions;
  4. When addressing the issue of discoverability, the test is objective. It requires a determination of when a reasonable person in the plaintiff’s position with her abilities and circumstances would have been alerted to the elements of the claim; and
  5. Engaging in negotiations to extract a tactical advantage from a party does not stop the limitation clock.

Nakatsuru J. also noted that the plaintiff was represented by counsel prior to her dismissal from RBC. This was far removed from the situation where an unsophisticated lawyer-less ex-employee was strong along by her employer and then failed to commence litigation in a timely fashion. Accordingly, the plaintiff missed the limitation period. Her clam was dismissed.

A similar result was confirmed in Bailey by the Ontario Court of Appeal. In that case, the plaintiff was advised on March 7, 2013 that his position was no longer sustainable. On March 18, 2013, he was given two years of working notice ending on March 22, 2015. He worked until that date and then commenced his claim on December 21, 2015. On a motion for summary judgment, the judge found that the limitation period began to run on the day he was provided notice, March 18, 2013, not the last day he worked. The Court of Appeal confirmed that this was the correct approach to take.

The take away from these decisions is that both employers and employees should be aware of when the notice of termination was given. If the notice is clear and unequivocal, the clock starts to run. Employees who wait too long may find themselves shut out of an otherwise meritorious claim. Similarly, employers should be cognizant that an employee’s attempt to enter into protracted settlement negotiations does not stop the limitation clock. As long as the employer does not take steps that might support a discoverability argument under section 5(1)(b) of the Limitations Act, this may be a strong defence to raise.

The decisions can be found at the following links: Bailey v. Milo-Food, 2017 ONCA 1004 and RBC v. Kennedy 2018 ONSC 2894.


Devan Marr’s practice has focused on bodily injury, long term disability, statutory accident benefits, and employment claims.

  

No Substance No Judgment

 Jun 7, 2018 4:00 PM
by Fiona Brown

The plaintiff’s claim relates to a slip and fall that occurred, in a washroom, at Casino Rama on February 16, 2015.  The plaintiff did not notice that the floor was wet, as she entered the washroom, but admitted she did notice a custodian and a yellow caution sign on the floor.  The plaintiff claims that the floor was wet and slippery, which caused her to fall.

Casino Rama’s position was that the plaintiff had failed to provide any direct evidence that there was an unsafe condition and, rather, she had “rationalized the explanation for the fall.”

The court relied on the Hamilton v Ontario Corporation 2000533 decision where the court granted the defendant’s motion for summary judgment.  In this decision, the plaintiff “subjectively believed” that her fall was caused by a slippery vinyl floor in the corridor outside of her apartment, but was unable to provide any objective evidence of anything that could have caused the floor to be slippery.   Further, there was no evidence of a general lack of maintenance in the corridor that could give rise to a determination of an unsafe condition to which the plaintiff’s fall could be connected, causally, or by reasonable inference.

In Rietta the court agreed with the plaintiff’s assertion that her case differs from the Hamilton decision in that there are two objective facts:  the presence of the custodian and a yellow caution sign in the washroom.   The court felt that these facts gave rise to a triable issue and the defendant’s motion was dismissed.

This decision makes it clear that no evidence of a substance or debris in the area of a fall will not be enough to be successful on summary judgment.   Objective evidence of “something” that could have caused an unsafe condition will create a triable issue.  This decision also reiterates that solid maintenance logs confirming regular patrolling are key for defending slip and fall cases.

See Rietta v Casino Rama, 2018 ONSC 2403

Also see Hamilton v Ontario Corporation 2000533, 2017 ONSC 5467


Fiona Brown has an insurance law practice that has focused exclusively on insurance defence for almost 22 years. Read more ...

  

This Father's Day, Cover your Dad with a Coverage Book

 Jun 6, 2018 12:00 PM
by Dan Strigberger

Still looking for the perfect Father’s Day gift? Can’t find that special tie that says “I love you Dad”?

Stop looking and get Dad the gift that says “You’re the best Dad ever!” by giving him his very own copy of Auto Insurance Coverage Law in Ontario.

Think of those frequent moments when Dad would rather skip a round of golf to read about what makes a motor vehicle an “automobile”. Or when he would prefer to pass on poker night so he can sit in his favourite chair and read the latest on the territorial limits of Ontario’s automobile insurance policy.

Read what one lucky dad had to say:

I remember Father’s Day 2017 like it was yesterday. It was sunny. There was a brisk northwesterly wind. The neighbour was mowing her lawn. The local children were playing street hockey. Brooks Koepka won his 1st major with a 16-under par 272 round at Erin Hills, Wisconsin.

I was bummed. My family didn’t take me out for brunch and I was starving. The Jays game was sold out. My pub ran out of Guinness.

All was lost. A bust. Worst Father’s Day ever.

But then, straight out of left field, my youngest called me into the den. My family was sitting on the couch. The kids gave me a wrapped gift.

It was a rectangular, slightly bendable object. It was three dimensional, measuring roughly 9 inches long, 6 inches wide, and half an inch thick.

I suspected it might be a book.

I started ripping the wrapping paper. My wife reminded me to go slowly so we could reuse the giftwrap. I could feel the sweat beading down my brow as I started peeling away the layers of what seemed like an endless amount of paper. The anxiety was overwhelming.

As that last layer of wrapping paper peeled away, I could see what appeared to be an image of a gargantuan yellow umbrella covering a red car.

Could it be? Was it?

YES!!!!

My very own copy of Auto Insurance Coverage Law in Ontario!!!!

I LOVE my children!!!

Imagine the opportunity to spend a relaxing summer evening with Dad at the cottage, sitting by the camp fire, and reading about direct compensation property coverage under section 263 of the Insurance Act. The birds begin to sing that sweet summer song. The evening air smells like warm apple pie. And just when the moment couldn't be any more perfect, Dad reads out loud:

In 1990, Ontario decreased the need for litigation for property damage claims by removing the right to pursue a court action against other parties. The province introduced s. 263 of the Insurance Act, a direct compensation system for property damage claims. It is referred to as “direct compensation” because it focuses on the insured collecting insurance proceeds directly from their own insurer; the insured no longer has a right to pursue other parties who were at fault for the accident. As a result, the insurer cannot pursue these claims either. Indeed, the insurers’ subrogated claims under the old system were derived from the insureds’ own rights of action.

Make June 17, 2018 a day to remember for Dad. Say "Happy Father’s Day Dad" with the gift he’s always wanted! Order your copy of Auto Insurance Coverage Law in Ontario today and let Dad know that you are no longer a “dependant”, as that word is defined in section 3 (1) of the Statutory Accident Benefits Schedule.


The son of a plaintiff lawyer, Daniel decided in law school that he wanted to work for the insurance industry. Read more...

  

Election 2018: Making an Informed Choice (of insurer)

 Jun 5, 2018 2:45 PM
by Julianne Brimfield

A priority dispute between Wawanesa, Northbridge and Allstate arose following the death of an insured truck driver. The truck driver had a policy of insurance on his personal vehicle (Allstate) and a policy of insurance on his work truck (Northbridge). His wife also had a policy of insurance on her personal vehicle (Wawanesa). As such, the truck driver (and his wife and children) were “insured persons” under all three policies.

In this priority arbitration, Arbitrator Samworth had to address two main questions:

  1. Are death benefits “derivative”, i.e. do they flow from the status of the insured person who dies as a result of an accident?
  1. When an insured submits an OCF-1 to an insurer, have they exercised their discretion to choose from which insurer they wish to claim benefits?

The arbitrator answered question 1 in the affirmative. She agreed that, based on the language of the SABS, the policy that must fund a death (or funeral) benefit claim is the policy that insures the person who dies (in this case, the truck driver). As noted above, the truck driver was insured under all three policies and, normally, would be able to choose from which insurer to claim benefits.

However, section 268 (5) of the Insurance Act provides that, when an insured person is both an occupant of a vehicle and also an insured under the policy covering that vehicle, then that policy is the priority policy. Therefore, in this case, there was no choice to be made: Northbridge was the priority insurer to pay the truck driver’s death benefits claim, as it insured the vehicle in which he was an occupant at the time of the accident.

The arbitrator answered question 2 in the negative. In this case, the truck driver’s wife and children submitted claims for psychological benefits to Wawanesa and the initial claim documentation indicated that they were not aware of any other policies.

She considered the wording of section 268 (5.1) of the Insurance Act and stated that it was clear that, in order for this section to be applicable, there must be "more than one insurer against which a person may claim benefits”. She went on to confirm that, if an insured submitting an OCF-1 is not aware that they can claim against other policies, then they cannot be said to have made a “choice” between policies.

The arbitrator also noted that the right to choose is an important consumer right and an insured must have adequate information and a reasonable opportunity to make a choice. As such, she concluded that the truck driver’s wife and children were now entitled to choose from which insurer (i.e. Wawanesa, Allstate or Northbridge) to claim psychological benefits.

This case confirms that, when it comes to priority, an insured person’s choice may not always be straightforward and sometimes there is no choice at all if the insured was unaware of all of his or her choices! Therefore, if a claimant is an “insured” under more than one policy, insurers should put the other insurer on notice and investigate whether the insured person is (i) able to make a choice, and (ii) has made an informed choice.

See Wawanesa v. Northbridge and Allstate, (Arb. Samworth, May 4, 2018)


Julianne defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, subrogated losses and general negligence claims. Read more...

  
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