The Ontario Court of Appeal just released its decision in Tondat v Hudson’s Bay Company et al.
The facts of the case are ones we typically see in Occupiers cases. The plaintiff, Sandra Tondat, slipped and fell when entering The Hudson’s Bay Company (“The Bay”) and fractured her kneecap. The fall occurred after she had walked into the vestibule area of the store, across a floor mat, stepped onto the tile floor and slipped and fell. The Bay had contracted Quinterra Property Management with maintenance services. Both The Bay and Quinterra Property Management were defendants in the action. The parties agreed on the quantum of damages and the trial was limited to the question of liability.
At trial, the judge concluded that the floor where the plaintiff fell was wet and this was the cause of her fall. He accepted that there was no evidence of any safety system in place, at the store, to abate the risk of a fall, or any effective inspection system. The trial judge did not accept the opinion of the defendants’ expert who testified that the tile flooring where the fall occurred had a superior coefficient of friction when wet and that the flooring was safe whether wet or dry.
The defendants unsuccessfully appealed the trial judge’s decision.
What was interesting about this case is that the plaintiff did not call her own expert to contradict the evidence about the slipperiness of the flooring when wet or dry. The appellate court felt that the defendants’ expert had testified about tests he had run “in a highly controlled way” and admitted he did not take into account variables that could affect the coefficient of friction of the floor tiles such as the weather conditions, the wetness of the floor, the nature of the person’s footwear, or the presence of any oily or greasy substance on the floor. The court concluded that the defence expert, during his testing, had not replicated the conditions typical of the entrance to a busy department store on a rainy day and the expert’s evidence was discounted on the question of whether the floor was slippery.
This case confirms that when retaining an expert to testify about the slip coefficient or “slipperiness” of the floor, be sure that the testing replicates the conditions present at the time of the fall. Of course, this is not always possible as most experts are retained well after the accident, so the conditions are often not similar.
Surely affecting the appellate court’s decision was the fact that a single maintenance person had been on duty both as a cleaner and a porter in the 118,348 square foot store on the day in question and there were no logs to confirm what activity, if any, had been taking place in the vestibule prior the accident.
As Ontario’s auto insurance industry was waiting anxiously, the Court of Appeal for Ontario released an interesting decision on priority dispute notices to claimants.
In Dominion v. Unifund, an accident benefits claimant was not notified of the priority dispute between the insurers until after arbitration proceedings had been commenced. The issue was whether the late notice to the claimant precluded the appellant from contesting its liability to pay SABS and from proceeding with the arbitration.
Section 3 of O. Reg. 283/85 requires an insurer wishing to dispute priority to give written notice to every insurer it claims might be higher in priority to it:
3. (1) No insurer may dispute its obligation to pay benefits under section 268 of the Act unless it gives written notice within 90 days of receipt of a completed application for benefits to every insurer who it claims is required to pay under that section.
Section 4. (1) of the Regulation requires the insurer giving a priority dispute notice to provide one to the claimant too, on a prescribed form:
4. (1) An insurer that gives notice under section 3 shall also give notice to the insured person using a form approved by the Superintendent.
Most of the “late notice” priority dispute cases over the years have focused on section 3 and, more specifically, whether the insurer gave written notice within the 90-day period and, if not, whether it could avail itself of the two saving provisions contained in section 3 (2).
Many insurers have been snake bitten over the years for failing to provide proper notice within 90 days. Although section 3 (2) provides two “saving provisions” that allow an insurer to overcome the late notice requirements, the tests for doing so are very difficult to meet. Of course, the consequence for failing to give proper notice in time is losing the right to dispute priority.
Conversely, there had been very little, if any cases, dealing with section 4 and whether an insurer that failed to give proper notice to the claimant would be able to pursue a priority dispute.
Dominion v. Unifund Gives Notice of New Notice Requirements
The claimant applied to Dominion for accident benefits. Dominion then gave Unifund a priority dispute notice, pursuant to section 3 of the Regulation. There was no issue that Unifund received the notice within the 90-day period.
However, some two and a half years later, Dominion sent the claimant the notice under section 4. The claimant did not object to the priority dispute and was not involved in the proceedings at all.
At arbitration, Unifund raised a preliminary issue, arguing that Dominion’s notice to Unifund was late because it had failed to give the claimant the notice within 90 days after it received the claimant’s application. In other words, Unifund argued that a notice under section 4 had the same 90-day time limit as a notice under section 3.
The arbitrator rejected Unifund’s argument and held that there was no 90-day notice period under section 4. She refused to “read in” a 90-day time limit for notice to a claimant that was not spelled out explicitly in section 4.
Unifund was successful on appeal. The appeal judge held that the arbitrator’s decision was incorrect in law. He interpreted the Regulation as requiring notice to be given to the insured within the same time period that was required for notice to the other insurer under section 3.
The Court of Appeal allowed Dominion’s appeal and restored the arbitrator’s decision. Following a recent trend, the Court of Appeal held that the appeal judge erred in law – not in his interpretation of section 4 – but in using the wrong standard of review. The Court held that a priority (or loss transfer) arbitrator is entitled to deference and that her decision was otherwise reasonable. Accordingly, the appeal judge had erred in reversing her decision and engaging in his own interpretation of the Regulation.
Stressing that the claimant’s most important right under the Regulation is to receive timely accident benefits notwithstanding a priority dispute between two insurers, the Court wrote at paragraph 44:
The arbitrator reasonably characterized the claimant’s rights as procedural. It was reasonable for the arbitrator to conclude that a 90 day time limit was not essential to protect the claimant’s rights to object and participate, which could be protected in other ways. In this case for example, the claimant’s rights were protected by ensuring that he received notice and had the opportunity to object before the arbitration hearing to determine the priorities dispute was underway.
Further at paragraph 48:
The overriding objective of the regulation is to provide a procedure to determine priority disputes. That objective would not be furthered, and may well be undermined, by importing a requirement that has nothing to do with the determination of the dispute or the rights of the parties.
Many insurers and lawyers have been holding on to matters with similar issues, waiting for the Court of Appeal’s guidance. Although the Court of Appeal restored the arbitrator’s decision because it was “reasonable”, it does appear that the Court of Appeal preferred her interpretation of section 4 over the appeal judge’s interpretation.
Going forward, and despite the Court of Appeal’s decision, insurers should always send the priority dispute notice to the claimant (section 4) at the same time they send it to the other insurer (section 3). This way, there should never be an issue as to whether any priority dispute notices were given in time.
On March 18, 2018, a vehicle operating in a “self-driving mode” (owned by Uber) struck and killed a woman in Tempe, Arizona, as she was crossing the street. This was the first documented time that an individual was killed by a self-driving vehicle. The vehicle in question was manufactured by Volvo but was owned and retrofitted by Uber with a self-driving mechanism. The vehicle did not “see” the woman crossing the street, did not slow down, and struck her.
Recognizing that we need more information, this incident begs the question: whose fault is it?
1. Volvo (manufacturer)?
Perhaps you would argue that Volvo should hold some liability for this accident. The question that needs to be answered is whether Volvo could have foreseen that Uber was intending to retrofit its vehicle with a self-driving device and whether Volvo had any control over the implementation / design / programming of the device. This would require an investigation into the ongoing relationship between Volvo and Uber.
This argument may prove to be quite dangerous. It would be shocking to hold a car manufacturer responsible for a regular car accident where a driver was negligent (absent a faulty product). However, is there a heightened standard of care that an auto manufacturer should have when they are engaging in research or development of a new product? Holding an auto manufacturer liable for the actions of a third party may be outrageous, but shouldn’t we expect a manufacturer to ensure that their product is being used for its intended purpose and if not, to step in?
2. Uber (owner / modifier)?
In this case, Uber seems like the obvious target. Or is it? Uber purchased a vehicle that was designed to be driven by a driver (with some assistive electronics like lane assist and adaptive cruise control). Uber took an active step to alter the vehicle and fit it with autonomous driving capabilities. Uber created a product and is liable for its malfunction.
But then the question arises: what level of autonomy did Uber program the vehicle to have? The US Department of Transportations National Highway Traffic Safety Administration (NHTSA) created a five-tiered ranking system to determine a vehicle’s level of automation. Perhaps the vehicle was equipped with a Level 2 system which required the driver to not only be able to assume control and responsibility for the vehicle but also be fully cognisant of the surrounding circumstances or it was a Level 3 system which only required a driver to be ready to assume control of the vehicle in an emergency situation. Or perhaps it was a Level 4 system where the vehicle assumes complete control over the vehicle and doesn’t require a driver’s input in most conditions.
Clearly, the level of liability fluctuates with the level of control that a manufacturer (or third party producer) gives to the vehicle. These levels need to be clearly communicated to a user to ensure that someone, or something, is responsible for controlling the vehicle at all times.
3. The Driver (operator)?
The classic target – humans. Manufacturers are typically not named in law suits stemming from a motor vehicle accident (save for a product liability claim), rather, the individual driver is typically held liable for an accident that they orchestrated. But what about the promise of complete safety on the road given by autonomous vehicle manufacturers? What is reasonably expected by an average driver of a vehicle that is claimed to be autonomous? Can a contract between a manufacturer and a driver predetermine liability? Why would consumers trust technology and voluntarily assume liability for an accident that a car was designed to prevent?
In order to determine the liability of a driver of an autonomous vehicle, courts will need to consider the above questions. Courts will have to determine what a “reasonable person” would expect from their autonomous vehicle, what agreement was entered into between the manufacturer and the driver, and of course, what were the circumstances of the loss.
4. The Victim?
Contributory negligence will remain a key component of most law suits where a victim contributed to their own injury. However, the court will be tasked with determining whether a potential victim was owed a higher duty, if one was owed at all, by a manufacturer of a self-driving vehicle – they did after all promise safer roads. This is an unprecedented consideration, but I supposed its fitting considering the topic.
Perhaps one of the biggest considerations is the effect that autonomous vehicles will have on the insurance industry. Underwriters will have to take a more active role in determining the capabilities of a vehicle that is being insured and more importantly, if those capabilities are in fact able to prevent potentially fatal accidents.
Adjusters will need to be cognisant of potential misrepresentations made by their clients in the course of obtaining an insurance policy as well as their ongoing duty to disclose material changes (i.e. the addition of a self-driving apparatus to their car).
Regardless of how you feel about Skynet, the tragedy in Arizona will soon shed light onto whether our society and legal system are prepared to accept and handle significant strides in technology. We will keep you updated as the story progresses.
Stas practices in insurance-related litigation. He has a broad range of experience including tort claims, accident benefits, subrogation, priority and loss transfer disputes, WSIB matters, and fraudulent claims. Read more...
The Court of Appeal has upheld a jury’s award of $225,000 in general damages for pain and suffering in a case involving a plaintiff who suffered fractures to the tibia and talus bone as a result of a motor vehicle accident. The plaintiff was 18 at the time of the accident. She underwent a surgery post-accident and it was anticipated that further surgery might be required due to her pain and restriction of movement, which was attributable to the development of arthritis in her upper ankle. Her accident-related injuries had caused her to change her post-secondary education and career plans and also interfered with her daily activities.
The trial judge restricted the scope of testimony of the defendants' expert as the defendant failed to serve the plaintifs with a signed Rule 53 report until part way through the trial. Specifically, the expert was not allowed to comment on any developments that had occurred since the preparation of his report, including the testimony of the respondent’s expert at trial.
The defendants appealed. The Court of Appeal found that the appellants were the creators of their own misfortune, having delayed in serving a proper Rule 53 report and having failed to have their expert provide a response despite having the supplementary reports well in advance of trial. The Court ruled that there was no error in the trial judge’s ruling.
The appellants also appealed the trial judge’s decision to not grant a mistrial in light of opposing counsel’s “inappropriate and inflammatory” closing to the jury. The trial judge decided that any damage could be dealt with by providing the jury with correcting instructions. The Court of Appeal set out that a mistrial is a remedy of last resort such that the trial judge’s decision attracted deference. The Court criticized counsel’s conduct, noting that it risked the integrity of the trial process and that a mistrial would have attracted cost consequences, which would have to be borne by counsel himself. However, the Court ultimately found there was no miscarriage of justice requiring the need to order a new trial.
This case stresses the importance of preparation and putting your best foot forward at trial in light of the deference granted by appellate courts. Also, the Court of Appeal will not have any sympathy for a ground of appeal that has its nascence in the mischief of the appellant.
See Dunk v. Kremer, 2018 ONCA 274 (CanLII)
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.
In the March 8, 2018 decision of Lipovetsky v. Sun Life Assurance Company of Canada, the plaintiff brought a motion to the Superior Court of Justice for a more fulsome affidavit of documents from the defendant insurer. The most interesting allegation in their motion was that the insurer did not sufficiently particularize the surveillance information set out in the Schedule B list of privileged documents. Of note, the parties had not yet undergone examinations for discovery at the time of the motion.
The insurer listed three investigation documents in Schedule B under litigation privilege, noting that each was a report, listing the name of the investigation company completing the report, the recipient of each report and the date of the report, as well as noting that they had enclosures. No further information was listed in the Schedule B about each report.
The plaintiff took the position in order to determine the propriety of the privilege claim, she was entitled to know whether the document is a report, photograph or video, the dates of same, the name of the investigative entity preparing same, the number of pages, number of photographs and number of videos, as applicable. She further argued that she was entitled to know the times when each session of surveillance began and ended, the names and addresses of the individuals who conducted each round of surveillance, the times when any recording began and ended and when any photographs were taken, the names or a general description of the websites that the surveillance investigators visited in connection with the surveillance, the names of any organizations or individuals with whom the investigators communicated, the dates of those communications, and whether oral or written statements were received.
Master Jolley correctly noted that the level of detail sought by the plaintiff to be included in the affidavit of documents is not required in an affidavit of documents. A plaintiff has the opportunity at the examination for discovery to ask the defendant about the details and contents of the investigation reports, including dates, times and locations, particulars of the activities and observations made and names and addresses of the persons who conducted the surveillance. If the plaintiff wants to dispute the privilege claim after discoveries, they are entitled to bring a motion to challenge the claim of privilege. As such, Master Jolley denied the plaintiff’s motion.
The takeaway from this decision is that Schedule B of an affidavit of documents must “set out the nature and date of the privileged document and other particulars sufficient to identify it”, as noted in the preamble to Schedule B of the affidavit of documents. It appears that all that is required to sufficiently do so is to list the following:
Type of document (e.g. report, video, photograph)
Date of document
Entity that created the document
Recipient of each report
Any further information regarding the contents of each report can be obtained by the other party at examination for discovery and need not be preemptively provided by the party claiming privilege.
Gabe Flatt has an insurance law practice that has focused exclusively on insurance defence for the past 8 years. He has developed an expertise in complex priority and loss transfer disputes as well as general coverage issues.
In the recent decision of Wiles v. Sun Life, the Ontario Superior Court allowed a summary judgment motion by Sun Life, finding that the conduct of the plaintiff did not justify granting relief from forfeiture.
The plaintiff was an employee of Spaenaur, who was terminated without cause on November 2, 2015. With the assistance of her lawyer, the plaintiff applied for the Salary Continuance Services Program available through the employer, who also had long-term disability benefits program for employees through Sun Life. After the application for the Salary Continuance Services Program was denied, the plaintiff initiated an action for breach of contract against Sun Life only.
Sun Life issued a motion for summary judgment based on the fact that it did not provide the Salary Continuance Services Program and its role was limited to administration only of that program. Prior to the motion the plaintiff requested to amend the Statement of Claim to remedy the deficiencies in the claim, including adding Spaenaur as a defendant; make claims against Spaenaur for damages for wrongful termination of employment; make claims against Spaenaur for damages for breach of the terms of the Salary Continuance Services Program and clarify her claim against Sun Life for damages of breach of the long term disability policy provided by Sun Life to employees of Spaenaur.
After receiving the Amended Statement of Claim, Sun Life issued a Statement of Defence and the plaintiff brought this motion for leave to issue a reply in which she seeks to plead relief from forfeiture. The plaintiff claimed she was not aware of the need to submit a separate application to Sun Life for LTD versus the application for the Salary Continuance Services Program. Sun Life’s policy included a 90-day term after the elimination period to submit a claim for benefits. In addition, there was a one-year limitation period in the policy to initiate legal action. Both of which the plaintiff failed to meet and therefore wished to claim relief against forfeiture.
The Court stated that relief from forfeiture is available for imperfect compliance with a term of the insurance policy but not for non-compliance with a term of the policy.
Referencing the decisions in Falk Bros., the court explained the difference between imperfect compliance and non-compliance. With imperfect compliance being the failure to give notice of claim in timely manner, whereas failure to institute an action within a prescribed time limit would be viewed as non-compliance, or breach of a condition precedent.
Applying the case law to the facts of the matter, the court found that the plaintiff’s failure to give timely notice to Sun Life of her claim for long-term disability benefits could be the subject of relief from forfeiture. However, the plaintiff’s failure to commence the action against Sun Life until more than one year after the end of the time period in which the initial submission of proof of claim was required would be non-compliance with the contract and therefore not subject to relief from forfeiture. Accordingly, the plaintiff’s claim against Sun Life must be dismissed.
In the event he was wrong about the plaintiff’s failure to commence this action within the contractual time period, Justice Taylor provided an analysis of the remedy of relief of forfeiture, referring to the Supreme Court of Canada case, Saskatchewan River Bungalows Ltd. V. Maritime Life Assurance Co., 1994 CanLII 100 (SCC) the test for relief against forfeiture is discretionary and based on three considerations: a) the conduct of the applicant; b) the gravity of the breach; c) the disparity between the value of the property forfeited and the damages caused by the breach.
In Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363, the Ontario Court of Appeal at paragraph 87 held that relief from forfeiture is to be granted sparingly and the party seeking that relief bears the onus of making the case for it.
The Court started with the proposition articulated in Sweda Farmsthat it is assumed that the plaintiff has presented all of the evidence that will be available for trial and conclude that the plaintiff had not discharged the onus to satisfy that Sun Life has not been prejudiced by the delay in giving notice of the claim.
Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (CanLII), [ 2014] O.J. No. 851 at paragraph 33:
(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
(2) On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
(3) If the court cannot grant judgment on the motion, the court should:
(a) Decide those issues that can be decided in accordance with the principles described in 2), above;
(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
Finally, the Court stated that if it was to grant the plaintiff relief from forfeiture on the basis of the record before it, it would effectively render meaningless the terms of the insurance policy requiring timely notice of a potential claim and the time within which an action must be commenced.
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 ...
In the midst of the current NHL season, which is seeing more stringent enforcement of concussion protocol implemented to protect professional athletes from potentially life altering brain injuries, the Ontario Government passed a bill that affords the same type of protections to amateur athletes. On March 6, 2018, Ontario enacted Rowan's Law (Concussion Safety), 2017 – legislation inspired by the late Rowan Stringer, a 17-year old girl who suffered a fatal brain injury playing rugby in 2013.
The purpose of the legislation is simple: protect amateur athletes from brain injuries. Rowen’s Law places an obligation on sports organizations, which are defined broadly to include “persons or entities that carry out, for profit or otherwise, a prescribed activity in connection with an amateur competitive sport”, to implement a “concussion protocol” that will effect athletes, their parents, and coaches.
The Act articulates four principles:
Athletes, or the parents of an athlete if they are under the age of 18, must confirm that they reviewed the sport organization’s concussion code of conduct. This duty extends to the coaches of sport organizations who are also required to be familiarized with the concussion protocol of the entity that they work for.
The sport organization must establish a concussion code of conduct which must be adhered to and be enforced by the members of the sport organization.
The sport organization must establish a “removal-from-sport” protocol that would be triggered when an athletes suffers or is suspected of suffering from concussion-like symptoms. This obligation requires the sport organization to immediately remove the athlete from training, practicing, or competing. The athlete is not allowed to return to the sport, except in accordance with the organizations “return-to-sport” policy.
The sport organization must establish a “return-to-sport” protocol which requires the designation of a person who is responsible for ensuring that an athlete who sustained, or is suspected of sustaining, a brain injury is able to return to the sport. The protocol must be designed to account for potential injuries that the athlete sustained in the course of participating in the subject organization, as well as injuries they may have sustained prior to joining the organization.
The Act is a good start on the road to ensuring a safer environment for amateur athletes to train and compete in, but it also places a significant obligation on entities to ensure that their athletes are safe. A significant challenge that entities will be confronted with is selecting a “designated person” who will be responsible for determining whether an athlete is “cleared” to resume athletic activity. While teams like the Toronto Maple Leafs have professional medical staff to make such determinations, amateur sport organizations will need to carefully develop their concussion protocol to ensure effective compliance with the Act and safeguard the health of its athletes.
The Act appears to have broad application which would include varsity teams at universities, private athletic clubs, municipal programs aimed at improving athletic skills of amateur athletes, and more. Entities that may assume they are unaffected by the passing of the Act, will have significant liability exposure in the unfortunate event that an amateur athlete suffers a brain injury. It will be important to develop, or update, a concussion protocol that is in keeping with the Act as well as the insurance policy covering the entity to ensure no coverage issues arise in the future.
We urge all individuals and entities operating amateur sport programs to develop, or update, their concussion protocols and seek assistance to ensure compliance with the law, to protect all athletes from life-threatening injuries, and make sport a safer space.
This article was written by Stas Bodrov. Having competed on the York Varsity swim team, served as a head coach of a lifesaving club, and being heavily involved with the Lifesaving Society of Ontario, Stas is uniquely positioned to provide legal advice with respect to all aspects of sport and injury prevention initiatives for athletic organizations.
Stas practices in insurance-related litigation. He has a broad range of experience including tort claims, accident benefits, subrogation, priority and loss transfer disputes, WSIB matters, and fraudulent claims. Read more...
Can a claimant receiving accident benefits still sue an insurer for extra-contractual damages in court, in light of the April 1, 2016 changes to the Insurance Act? That was the question before Justice Ramsay in a Rule 21 motion recently brought by Economical Mutual Insurance Company.
Section 280 of the Insurance Actwas amended on April 1, 2016, to provide that all disputes in respect of entitlement to statutory accident benefits or the amount thereof were to be brought before the Licence Appeal Tribunal (LAT). Section 280(3) specifically provides that no person may bring a proceeding in court for any dispute that falls within the jurisdiction of the LAT, with the exception of an appeal from a decision of the LAT or an application for judicial review.
In this case, Economical was the defendant in an action brought by the plaintiff, Morgan Stegenga, seeking damages related to the handling of her accident benefits claim due to alleged bad faith, negligence and fraud. The Statement of Claim was issued after April 1, 2016.
Economical brought a Rule 21 motion to have the claim struck on the basis that it disclosed no reasonable cause of action and on the basis that the plaintiff’s claim fell within the exclusive jurisdiction of the LAT.
The motion proceeded on March 5, 2018. In his endorsement, released March 6, 2018, Justice Ramsay agreed with Economical’s position that the phrase “in respect of” used in section 280 of the Insurance Actwas very broad and was intended to govern alldisputes regarding accident benefits entitlement. Justice Ramsay also noted that the LAT’s exclusive jurisdiction was essential to the goals of the legislative changes of April 1, 2016. He further confirmed that he was bound to look at the facts giving rise to the dispute and not the legal characterization of the wrong.
Justice Ramsay concluded that there was “no reason to doubt that the legislature, in enacting the present s.280 of the Insurance Act, intended to deprive a claimant of resort to the court at first instance whenever the claim is based on denial of accident benefits, no matter how the denial is characterized in legal terms.” As such, the action was dismissed.
This case confirms that, as a result of the April 1, 2016 changes to the Insurance Act, alldisputes related to accident benefits entitlement, no matter how they are characterized or pled, must proceed through the LAT and may no longer be brought before the courts.
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...