In S.S. v. Economical, the Licence Appeal Tribunal found the claimant missed the limitation period to dispute the denial of attendant care and housekeeping benefits, which had been denied at 104 weeks, despite the claimant later being deemed catastrophically impaired. The Tribunal also found that subsequent payments of attendant care and housekeeping benefits, made in error by the insurer after the claimant was deemed catastrophically impaired, were irrelevant because the limitation period had expired well before the subsequent payments were made.
The claimant, S.S., was involved in a motor vehicle accident on July 29, 2009. The insurer paid the claimant attendant care and housekeeping benefits until the benefits were terminated pursuant to s. 18(2) and s. 22(2) of the SABS. This refusal to pay further attendant care and housekeeping benefits was communicated via a letter, dated October 4, 2011.
The claimant submitted an initial Application for Determination of Catastrophic Impairment (OCF-19), dated March 23, 2010, claiming impairment under criterion 1(e). The insurer assessed the claimant and found he was not catastrophically impaired under this criterion.
The claimant submitted two further OCF-19s, dated June 17, 2013 and January 8, 2014, under Criterion 8 and Criterion 7, respectively. On September 3, 2014, following the completion of s. 44 examinations, the insurer advised the claimant of their determination that he was catastrophically impaired. The insurer also mistakenly advised the claimant that he was entitled to attendant care and housekeeping benefits and paid him these benefits for approximately six months. Upon identifying the mistake, the insurer advised the claimant that benefits were paid in error and requested a repayment.
The claimant did not dispute the insurer’s denial of attendant care and housekeeping benefits until May 5, 2017.
Adjudicator Johal determined that the denial of October 4, 2011 was clear and unequivocal and complied with the principals set out in Smith v. Cooperators and the SABS. While the Adjudicator agreed that subsequent payments can negate a denial in certain cases, she agreed with the insurer’s position that, in this case, the claimant’s claim for ongoing attendant care and housekeeping benefits was already statue barred at the time of the subsequent payment. In other words, subsequent payments cannot revive a right that has been extinguished.
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 ...
In Kapoor v. Kuzmanovski, on the eve of a trial, the Plaintiff brought a novel motion to exclude potential jurors who drive and pay for automobile insurance or who have insurance premiums paid on their behalf from the jury pool. The Plaintiff suggested that an inherent conflict of interest arose for these potential jurors due to the widespread and publicly known fact that increased court awards and settlements increased automobile insurance premiums. The Plaintiff alternatively sought orders that these same residents should be excluded from the jury selection process as being ineligible or based on widespread bias in the community. In the further alternative, the Plaintiff sought to strike the jury notice.
The motion was opposed by the Defendants. Additionally, the Attorney General of Ontario and The Advocates Society were invited to make submissions and render assistance as friends of the court. The motion proceeded before Regional Senior Judge Daley. Following lengthy submissions, the Court wholly dismissed the motion.
The selection and eligibility of jurors is mandated by the Juries Act. The Court noted that section 32 to 34 of the Juries Act deals with challenges and does not permit a broad/general challenge for cause. Rather, the Juries Act only allows for challenges for cause in civil cases on two grounds: (1) for want of eligibility; and (2) for ratepayers and officers/servants of municipal corporations, where the municipal corporation is a party. The Court recognized that a broad/general challenge for cause should not be read into the legislation.
Given that none of the parties involved in this action were a municipal corporation, the only basis for a challenge for cause was want of eligibility, which is addressed in section 3 of the Juries Act. Section 3(3) states as follows:
Connection with court action at same sittings
(3) Every person who has been summoned as a witness or is likely to be called as a witness in a civil or criminal proceeding or has an interest in an action is ineligible to serve as a juror at any sittings at which the proceeding or action might be tried.
The Court noted that this provision does not automatically disqualify jurors with an interest in the action and, further, nowhere does the Juries Act expressly state that lack of impartiality is a ground to disqualify a juror based on ineligibility. The Court concluded that the proper interpretation of section 3(3) led to the conclusion that the word “interest” could only reasonably be construed contextually to refer to having a “connection” to an action. Specifically, “has an interest in an action” was limited to witnesses and prospective witnesses. As such, the Court concluded that only individuals who are or who are likely to be called as witnesses are ineligible to serve as jurors under section 3(3).
The Court held that the Canadian system presumes that jurors are capable of setting aside their views and prejudices and acting impartially upon proper instruction by the trial judge. The Court found that a number of safeguards exist to ensure the integrity of the civil jury process and trial fairness, including the ability of the Court to discharge a juror during the course of a trial on several grounds, including impartially. Therefore, the presumption of impartiality may be overcome or displaced by calling evidence or by asking the Court to take judicial notice of facts (or both). However, a successful challenge cannot be based on speculation or assumptions.
Notably, the Plaintiff tried to rely on a survey that had been commissioned by his counsel as evidence of widespread bias. The survey was conducted over two days in January 2017 in Brampton. The Plaintiff alleged that this survey was expert evidence. The questions posed in the survey dealt with (1) the impact of higher automobile insurance premiums on the persons interviewed and (2) whether they would seek to lower their own premiums by limiting the damages awarded in a motor vehicle case or whether they would award damages regardless of the impact it would have on their insurance premiums. Notably, the survey was submitted as an attachment to an affidavit sworn by a law clerk.
A Voir Dire was held to determine whether the survey was admissible. First, the Court held that the evidence in the survey was hearsay at best and that, generally, social science and survey evidence was of uncertain quality and reliability. Second, the Court noted that opinion evidence should not be in the form of reports attached to an affidavit of a deponent who has no personal knowledge of the contents of the reports, as this essentially insulates the expert from cross-examination.
Third, the Court expressed concern that the survey did not consider whether the respondents, as prospective jurors, would be capable of setting aside bias if instructed to do so, as these types of questions were not posed. Fourth, the survey only surveyed individuals who drove and paid for auto insurance. It did not survey a random or representative sample of people. As such, it was considered to have little to no relevance or probative value.
The Court ultimately concluded that survey did not meet the minimum requirements to constitute expert evidence. Accordingly, it could not be admitted as expert evidence. The Court went on to find that there was no evidence whatsoever that would demonstrate the presence of widespread bias among Brampton citizens against the Plaintiff.
This decision is important because it confirms that jurors are always presumed impartial. Parties are not able to exclude jurors based on an allegation of bias before trial has even commenced. It is certainly difficult to believe that juries would continue to be representative of the general population if large population groups, such as people who pay auto insurance premiums, could be routinely excluded from the jury pool.
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...
In Swampillai v. Royal & Sun Alliance Insurance Company of Canada, the Court dealt with the enforceability of a full and final release executed by the Plaintiff. A claim was commenced for long term disability (“LTD”) benefits. The action named the Plaintiff’s former employer, Royal and Sun Alliance Insurance Company of Canada (“RSA”), and Sun Life Assurance Company (“Sun Life”) which administered the LTD benefits that RSA provided employees.
In response, the Defendants argued that the Plaintiff had executed a full and final release which had included LTD benefits. The Plaintiff amended his claim to plead the doctrine of unconscionability and argued the release should be set aside. The Defendants brought summary judgment motions on the basis that the release was binding and enforceable. The summary judgment motions were dismissed. The Court found that the release signed by the Plaintiff was unconscionable and ought to be set aside.
The background facts were important. The Plaintiff had been employed as a distribution clerk. After several years of working in this physically demanding job, the Plaintiff went on disability. About three months before the two year mark (where entitlement to LTD changed to the “any occupation” test), Sun Life wrote to the Plaintiff and advised that (1) he did not meet the test for entitlement; (2) benefits would be terminated at the two year mark; (3) the Plaintiff could appeal the decision; and, (4) the appeal period expired three months after the benefits were terminated. The Plaintiff appealed the decision but Sun Life maintained its denial.
By separate letter (about one month before the test for LTD benefits changed), RSA advised that the Plaintiff’s employment would be terminated at the same time as the LTD benefits were to be terminated. A severance package was offered which would require the Plaintiff to also execute a full and final release. The release provided that it related to “benefit coverage under the Company’s applicable plans and/or policies ... including short term or long term disability benefits ...” The Plaintiff’s evidence was that he did not believe the offer had anything to do with Sun Life or his LTD benefits.
In determining whether the release was unconscionable, reference was made to the Court of Appeal’s decision in Titus v. William F. Cooke Enterprises Inc., (2007 ONCA 573) which sets out the four elements that must be satisfied:
A grossly unfair and improvident transaction; and,
Victim’s lack of independent legal advice or other suitable advice; and,
Overwhelming imbalance in bargaining power caused by the victim’s ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or other similar disability; and,
Other party knowingly taking advantage of this vulnerability.
With respect to the first element, the Court found that it was clear that in the period just before the Plaintiff was notified by RSA that his employment would be terminated, he was actively engaged with Sun Life in pursuing his claim for LTD benefits. He had provided medical evidence in support of his claim and retained Counsel because he did not agree with Sun Life’s decision. There was no dispute that this claim, if successful, would have substantial value which would have been known by both Defendants. Further, (1) Sun Life was not aware of the release until after the litigation commenced; and, (2) RSA acknowledged that its severance offer did not include any money with respect to the LTD claim. In these circumstances, the Court concluded that the settlement for the LTD claim as part of the severance settlement was grossly unfair and clearly improvident.
As to the second element, the Court found that the Plaintiff did not receive legal advice or any professional advice regarding the effect of the proposed settlement terms, including the release of his LTD claim. The Court concluded, particularly given that RSA knew the Plaintiff was appealing the denial of the LTD claim and RSA did not mention the impact on the LTD denial during the course of negotiations, that it was reasonable for the Plaintiff not to have obtained legal advice.
On the third element, the Court found that the Plaintiff was (1) in a vulnerable financial position; and (2) was suffering from health impairments that were sufficiently severe that he had qualified for LTD benefits. The Court concluded that the general vulnerability of the Plaintiff at the material time was not diminished by other circumstances. The Plaintiff did not know his options regarding the LTD claim. The Court concluded that there was an overwhelming imbalance in bargaining power.
Finally, the Court considered whether RSA knowingly took advantage of the Plaintiff’s vulnerability. The Court found that RSA offered the Plaintiff a severance package, but did not alert him to the fact that it required him to release his LTD claim. By failing to do so, RSA knowingly took advantage of the Plaintiff’s vulnerability.
The Court was satisfied that all four elements were established. The release was unconscionable and was set aside. This decision serves as a cautionary tale for parties negotiating a full and final settlement. Particularly where the Plaintiff is in a vulnerable position (which most people on long-term disability will be), it is imperative that the Plaintiff know what benefits they are resolving by signing a full and final release. Otherwise, there is a risk that the release will not be enforceable.
An application was brought under rule 14.05(3)(d) of the Rules of Civil Procedure to determine rights that depend on contract interpretation. The applicant was National Gallery of Canada (“National Gallery”) and the respondents Lafleur de la Capitale (“Lafleur”) and Intact Insurance Company (“Intact”).
The application relates to two underlying actions arising out of a fatal trip and fall accident that occurred on August 27, 2013 on the National Gallery’s premises. Conrad Lafreniere, an employee of Lafleur, was performing routine maintenance work, cleaning leaves and debris, near the entrance ramp to the National Gallery’s underground parking garage. As a vehicle approached to enter the garage, Mr. Lafreniere moved over to the edge of the entrance ramp, fell over a concrete ledge, and suffered fatal injuries.
The first underlying action, against the National Gallery, was commenced by Mr. Lafreniere’s widow, Ms. Arsenault. The Workplace Safety and Insurance Board (“WSIB”) had a subrogated claim in relation to the claim commenced by Ms. Arsenault and payments made, by the WSIB, to her. The second underlying action, against the National Gallery, was commenced by Mr. Lafreniere’s mother and siblings pursuant to the Family Law Act.
The National Gallery and Lafleur entered into a Service Contract under which LaFleur was required to supply all labour and equipment to complete the interior and exterior maintenance throughout the premises. Lafleur was also responsible for properly training and supervising its employees and ensuring that all employees wore safety equipment and were kept safe while carrying out their work.
Under the Service Contract, Lafleur also agreed to indemnify and save harmless the National Gallery from all claims, demands, losses, costs, damages, actions, suits, or proceedings arising out of or in connection with its work under the contract.
Lafleur also agreed to obtain a CGL insurance policy under which National Gallery would be added as an additional named insured. The policy was issued to Lafleur by Intact.
In both underlying actions, the plaintiffs claimed that Mr. Lafreniere’s fall, and subsequent death, was caused by the negligence or breach of duty of the defendants, National Gallery and the Attorney General of Canada. All of the particulars of negligence, set out in paragraph 8, in the Statements of Claim related to design issues of the building and the property, including the failure to install a fence, railing or protective barrier in the area where Mr. Lafreniere fell, for example.
The National Gallery commenced a third party claim, in both underlying actions, against Lafleur for its failure to properly train Mr. Lafreniere, and also claimed contribution and indemnity from Lafleur.
Intact issued a Commercial General Liability policy to Lafleur. The National Gallery was named as an additional named insured under the policy by way of endorsement. The policy was with respect to the legal liability arising out of Lafleur’s operations under the Service Contract.
The court went on to examine the wording of the Services Contract between the National Gallery and Lafleur, in particular the paragraph dealing with “Indemnification by Contractor”. This section stated that Lafleur shall indemnify and save the National Gallery harmless from all claims . . . . “based upon, arising out of, related to, occasioned by or attributable to the activities of the Contractor, the Contractor’s servants, agents . . . in performing the Work . . . ”
The issue for the court was whether Lafleur and Intact owed a duty to defend the claims against the National Gallery in the underlying two actions.
In ultimately deciding in the negative, the court reviewed the leading case law, in this regard:
an insurer is required to defend a claim on behalf of an insured when the facts alleged in the pleadings, if proven true, would require the insurer to indemnify the insured for the claim: Progressive Homes Ltd v. Lombard General Insurance, 2010 SCC 33 (CanLII)
the duty of defend should, unless the contract of insurance indicates otherwise, be confined to the defence of claims which may be argued to fall under the policy: Nichols v. American Home Assuance Co., 1990 SCC (CanLII)
where there are multiple claims, or where only some of them are potentially covered, a court must assess the substance or the “true nature” of each claim contained within the pleadings to see if it falls within the scope of coverage: Papapetrou v 1054422 Ontario Ltd.2012 ONCA 506 (CanLII)
Following its review of these cases, the court agreed that the question of whether the duty to defend extends to the whole claim depends on the specific pleadings at issue and the resulting determination of the “true nature” of the claims.
In terms of the facts, in this application, the court concluded that in the underlying action brought in the name of Ms Arsenault, for WSIB’s subrogated interest, there was no duty on Intact to defend the National Gallery, for the following reasons:
The nature of the claim was really one of a subrogated workplace claim
The CGL coverage contained an exclusion for “Worker’s Compensation and Any Obligation of the Named Insured under a Workers’ Compensation plan”
The CGL coverage also contained an exclusion for bodily injury to an employee of the Insured arising out of and in the course of employment; Mr. Lafreniere was not an employee of the National Gallery nor in the course of employment with the National Gallery at the time of the accident
The Services Contract required that the National Gallery would be added as an additional insured – it was not listed as a named insured
The Certificate of Insurance required that the National Gallery was an additional Insured but only insofar as Legal Liability arising vicariously out of the operations of the Named Insured
With respect to the underlying action brought by the FLA claimants, the claim alleged that Mr. Lafreniere’s death was caused by the negligence of the National Gallery as occupier. The court found that the allegations in the Statement of Claim related to design issues of the building and the property and that the indemnity provisions in the policy must be read in conjunction with the allegations in the Statement of Claim.
The wording of the indemnity provision made it clear, to the court, that indemnity was “based upon, arising out of, related to, occasioned by or attributable to the activities of the Contractor.” Lafleur was the Contractor and was not named as a party in the Statement of Claim. There were no allegations in the Statement of Claim that alleged negligence or tortious activities of Lafleur so no indemnification could be triggered. The allegations in the Statement of Claim related to design and control by the National Gallery as occupier and, therefore, could not be related to or attributable to the activities of Lafleur.
The court went on to state that, on its face, the CGL policy would cover bodily injury and would be for the type of loss that was sustained. Even though there were no exclusions that applied, the major challenge, for National Gallery, was that the allegations in the Statement of Claim fell outside of the indemnity agreement.
The court concluded that the allegations in the Statement of Claim did not arise out of the activities of the Contractor, Lafleur. There were no allegations in the Statement of Claim that Lafleur or its servants did anything wrong; that is why the claim falls outside of the indemnity agreement.
Based on this analysis, the court found that neither Lafleur or Intact owed the National Gallery a duty to defend.
While this case does not offer anything new about the duty to defend, it provides a good analysis of the issues that arise in duty to defend disputes and a reminder that the allegations in the Statement of Claim must be carefully considered, along with the wording in the indemnity provision of the contract.
The Supreme Court of British Columbia granted the City its motion for summary judgment in an action commenced by an elderly Plaintiff who sustained a slip and fall injury.
In Sapia v Invermere (District), the Plaintiff was an 82 year old woman who was a regular patron of the Invermere Seniors’ Hall (the “hall”). The injury happened as the Plaintiff left the building and walked towards her vehicle. There was a gradual slope from the hall to the parking lot such that the parking lot at the end of the walkway was lower than the sidewalk by about six inches. The step up from the parking lot was about the same height as the standard curb. The Court noted that there was a noticeable difference in the colour between the walkway (light grey) and the parking lot (dark black).
The Plaintiff was familiar with the area where the fall occurred but could not describe how or why she fell. Expert opinion evidence tendered on her behalf concluded that because of seniors’ decreased visual acuity, the absence of a warning yellow line to demarcate the elevated portion of the walkway was the reason for the fall. It was noted that since the fall, the area where the elevation changed had been highlighted by yellow paint.
The Court referenced Dahl v. Liberty Investments Ltd. ( B.C.J. No. 461) which recognized that there was a high standard of care when it was apparent that the premises would be used by senior citizens. The Court added “there is a high standard of care imposed on an occupier of premises where the principal users have a decreased awareness of their surroundings.”
The Court recognized that an occupier’s conduct will be negligent if it creates an “objectively unreasonable risk of harm.” The fact that the Plaintiff fell was not sufficient to establish liability. Remedial measures taken after an incident were also not necessarily determinative that such steps were undertaken to comply with a duty of care; it was only one factor to consider. The Court found that the Plaintiff must prove what hazard caused her to fall. One cannot speculate as to the cause.
The Court concluded that expert evidence was not necessary in this case as the expert provided commentary that was common knowledge. The Court found that judicial notice could be taken of the fact that as people age, their physical prowess, including visual acuity, declined. While not excluded, the expert report was “simply a piece of evidence to consider within the whole of the evidence.”
The Court found that one way to assess the appropriate standard of care would be to ask if the existence of the yellow line would have alerted the Plaintiff to the drop in the sidewalk. The Court was satisfied that a yellow line would have provided such an alert. However, this did not end the analysis. The Court also considered whether there were any other cautionary alerts in the absence of a yellow line. The Court was satisfied that there was an alert even though it may not have been deliberately created for that purpose. The sidewalk and parking lot were of markedly different colours such that the edge of the sidewalk was apparent. The Court also found that the drop from the sidewalk to the parking lot was apparent. There was no need to mark or paint a yellow line to highlight what was apparent for everyone to see.
The Court concluded that the premises were reasonably safe and that the Plaintiff had not satisfied that the Defendants breached their high standard of care to ensure that the premises frequently used by senior citizens were reasonably safe.
While not binding in Ontario, the case serves as a reminder that an occupier’s decision to take subsequent remedial actions to address potential hazards will not be determinative of liability. The burden remains on the Plaintiff to establish that an occupier breached their standard of care to protect individuals at a premises.
Insurer Permitted to Subrogate Despite Builders’ Risk Policy
Builders’ risk policies have historically been given broad interpretation, extending coverage to all parties involved in a construction project. When property damage arises, the insurer paying the loss may be inclined to subrogate against the at-fault party, who is usually a party involved in the project. Almost invariably, however, the insurer is prevented from doing so by the principle that it cannot subrogate against its own insured (the Anti-Subrogation Rule).
Whenever a builders’ risk policy is involved, defendants become justifiably excited at the opportunity to have a subrogated claim dismissed. However, the recent Superior Court decision of Maio v. Mer Mechanical places limits on this tactic, which is good news for insurers who subrogate.
The Maios acted as their on general contractor when building their new home and obtained a builder’s risk policy in the process. As part of the project, various plumbing work was done by a subcontractor, Mer Mechanical. Shortly after the plaintiffs moved into the property, a sink faucet line separated resulting in a leak and over $3M in damage.
The plaintiff’s made a claim under their homeowners’ policy and their insurer brought a subrogated action against Mer Mechanical. Mer brought a summary judgment motion, arguing that the plaintiffs’ builders’ risk policy provided coverage for the loss and that they ought to have sought coverage under that policy since it was deemed “primary” for the project. If the policy responded to the loss, the builders’ risk insurer would not have been permitted to subrogate against Mer, who would have been considered an insured.
The plaintiffs resisted the motion, arguing that the loss was not covered by the builders’ risk policy. Much of the analysis focused on the term “occurrence” in the builders’ risk policy:
… any one loss, casualty or disaster or series of losses, casualties or disasters, arising out of one event. If the inception of the event causing the loss occurs prior to the estimated completion date of the project, then the Insurer shall be liable for any loss incurred after the estimated completion date of the project, as a result of the event.
Mer argued that the “inception of the event” was the initial installation of the faucet, which occurred during the construction project and within the coverage period. It was critical to Mer’s argument that the loss originated from the initial installation, which set in motion a process called “creep/stress relaxation”.
The court rejected the argument, finding that the “event” was the separation of the pipe which occurred after construction was complete. The court distinguished the applicable definition of “occurrence” from other cases which used more expansive wording (e.g. “continuous or repeated exposure to substantially the same harmful conditions”).
The court ultimately found that the loss was not captured by the builders’ risk policy. As such, there was no discussion as to whether the policy was primary or whether the plaintiffs would have been required to seek coverage under it prior to their homeowner’s policy. Nonetheless, the decision is a positive development for subrogation insurers, who should keep in mind the overall purpose of builders’ risk policies: to provide coverage during the construction project in order to ensure that the project is not interrupted by disputes and litigation.
The recent Ontario Court of Appeal decision of Gore Mutual insurance Company v. Carlin confirms that contracts of indemnity are meant to indemnify an actual loss and not provide a windfall.
The facts, surprisingly, are straight forward. The respondents carried on a dental practice. A fire destroyed the building in which the practice was run. The fire also destroyed the contents. Gore had issued a policy for the building and its contents. Prior to determining the total loss, Gore made a series of advance payments to the Respondents. A dispute over the value of the total loss arose. Gore and the respondents participated in an appraisal as provided for in section. 128 of the Insurance Act, R.S.O. 1990, c. I.8 (“the Act)”. The amount found to be payable by the Gore under the appraisal was $713,767.33. To that amount was added an agreed sum for business interruption loss, being $205,444, and $7,465.70 for professional fees. The total amount payable by Gore was $926,677.03. However, by this time Gore had already paid out $1,030,187.04. It sued to recover the overpayment of $103,510.01.
A summary judgment motion was brought to resolve the issue. The motion judge found that the advance payment was deliberate and not the product of mistake. He noted as well that both the policy and the Actwere silent regarding what happens when an overpayment has been made. He contrasted this to the Schedulethat had specific repayment provisions. He found no repayment was owed and unjust enrichment was not available. Gore appealed.
Gore was successful on the appeal. The Court of Appeal found the motion judge had ignored the fundamental principle that a contract of insurance is a contract of indemnity; it is not a vehicle for turning misadventure into profit.
The Court of Appeal found it was insufficient to engage in an analysis of the policy that is limited to a search for a specific provision that dealt with an overpayment. The motion judge was obliged to determine what the parties bargained for in entering into their contract of insurance. Had he done so, it would have been clear that the respondents’ retention of the overpayment was antithetical to the bargain the parties struck. Contracts of insurance are to be interpreted in a manner that results in neither a windfall to the insurer nor an unanticipated recovery to the insured. The policy provided only for indemnification for a loss suffered. The reference to Schedulewas inapt, as itcontemplates payments made by insurers to both insureds and third parties. It makes sense that the Schedulewould specifically address repayment to the insurer of erroneous payments given that they could potentially be made to third parties who have no contractual relationship with the insured.
Additionally, the motion judge erred in law in the unjust enrichment analysis. To successfully make an unjust enrichment claim, a plaintiff must prove three things: (1) the defendant must have received an enrichment, (2) the plaintiff must have suffered a corresponding deprivation, and (3) there was no juristic reason for the benefit and loss. The Court found where money is transferred from a plaintiff to a defendant, there is an obvious enrichment. In this case, there was no issue that the insured received a benefit and that the appellant suffered a corresponding deprivation.
This decision represents helpful clarification from the Court of Appeal. While insurers are bound to act in good faith to their insureds, they are only obligated to indemnify them for the actual loss suffered. Where good faith advance payments lead to an overpayment not contemplated by the contract, an insurer is entitled to repayment for this excess amount.
This action was brought against the Village of Kaslo (B.C.) by a plaintiff who sustained damages after falling down an embankment off Water Street (an unpaved alleyway). The Village had erected concrete barriers at the mouth of the street/alley in order to bar vehicles from entry and to demarcate the embankment. However, there were gaps between the barriers. Although the plaintiff was familiar with the area, she had her back to the barriers while helping her husband park their motor home. As a result, she stepped between one of the gaps before falling down and injuring herself.
In determining liability, the Court relied on the Supreme Court’s decision of Ryan v. Victoria (City), 1999 CanLII 706 (SCC) in which conduct was defined as negligent where it created “an objectively unreasonable risk of harm”. In this case, the Court noted the following factors: the embankment was patently obvious, the area was rarely used, the plaintiff knew of the embankment and there had been no other incidents of falls down the embankment.
Court dismissed the action and found that the infrastructure placed in the area of the fall by the Village was adequate. It was not necessary to put up fencing or fall protection as it was obvious that the area was hazardous. The Court also found that the plaintiff would not have fallen if she watched where she was stepping. Namely the “proximate cause” of her fall was determined to be her inattention in walking backwards toward the embankment despite being aware of the hazard.
While this decision is not binding on an Ontario Court, the duty of care owed by an occupier is defined almost identically in the Occupiers Liability Act of B.C. and Ontario. As such, the decision would likely be persuasive in Ontario in suggesting that common sense and the principles of reasonableness should prevail in disputes over whether an occupier has discharged its duty of care to ensure that people (and/or their property) will be reasonably safe while on their premises.
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.
The matter of Rosen Express v. Northbridge is yet another case of stolen cargo for which Rosen sought coverage. The case underlines for insurers that courts will often take a broad approach to coverage and they must provide supporting evidence when alleging misrepresentation.
This case involved electronic goods which were ultimately destined for Best Buy in Quebec. Affidavit evidence supported that Greenway Carriers transported the goods to Rosen Express by leaving a Greenway trailer in Rosen’s yard. Rosen ultimately was tasked with delivering the trailer to Quebec. Notably, the Greenway and Rosen properties were directly beside one another.
The insurer argued that there should be no coverage for two reasons. First, it argued the goods were not in Rosen’s custody and thus not covered by the policy. In support of this, the insurer argued that the goods remained in Greenway’s trailer and it was a Greenway employee who completed the police report. The court rejected these arguments as speculative and accepted Rosen’s evidence that it intended to transport the goods using the Greenway trailer.
The court also found, based on the policy wording, that the cargo would be covered regardless of whether they were dropped off at the Rosen property. Greenway was found to be acting as Rosen’s agent and therefore the goods were considered to be in Rosen’s custody even if on the Greenway property.
Second, the insurer argued that Rosen made a material misrepresentation when it applied for insurance because it failed to disclose that it would be transporting electronic goods. There was a space on the application to specify the type(s) of electronic goods being transported, which was left blank. The application described the types of goods very generally, including “consumer goods”. In the application, Rosen provided evidence that electronics comprised 1 to 2% of its shipments.
Morgan J. rejected the insurer’s submission that there was a material misrepresentation. It was significant that the insurer did not provide any evidence to support that it was induced by the misrepresentation or that it would have treated the application differently. The court differentiated the case from one where an insured transports something drastically more dangerous or expensive than that declared on the application (e.g. explosives or gold bullion).
Although the court rejected the insurer’s coverage arguments, Rosen was not entitled to any compensation. There was a lack of evidence to support the value of the cargo as no claim had been made against Rosen. While there was some evidence on the bill of lading and post-loss amounts had been withheld from Rosen, the court was not satisfied that the cargo claim value could be determined with accuracy. Therefore, the court left for another day the issue as to whether the policy would respond to a cargo claim and the amount of same.
The Supreme Court of Canada recently considered whether an individual can be impaired by reason of distracted driving in R. v. Suter. While the primary issue was the appropriate length of sentence for the criminal conviction, it also dealt with the concept of being impaired by distraction.
The facts of the case were tragic. Mr. Suter fatally injured a two year old when he drove his vehicle onto a restaurant patio. Following the incident, the accused was charged with impaired driving causing death, impaired driving causing bodily harm and refusing to provide a breath sample after causing an accident resulting in a death. Complicating the situation was the fact that sometime after the accident, Mr. Suter was attacked by a group of vigilantes who kidnapped him, beat him and cut off his thumb using a set of pruning shears.
In the moments leading up to the accident, the accused and his wife got into a fight in the parking lot in front of the restaurant patio. During this fight, his wife exclaimed “Maybe we should just get a divorce.” At about the same moment, the wife realized that the vehicle was inching forward and she yelled at the accused to stop. Unfortunately, Mr. Sutter’s foot had come off the brake pedal. Instead of hitting the brake, he pressed down on the gas pedal which caused the vehicle to launch forward onto the patio where he struck the child. Following this, Mr. Suter was pulled from the vehicle, thrown to the ground and beaten by witnesses at the scene. He was arrested, taken to the police station and a breath demand was made. It was after speaking with a lawyer to obtain legal advice that he ultimately refused to provide the breath sample.
The Supreme Court of Canada noted that the circumstances were unique as the reason the accused refused to provide the police with a breath sample was because he was given bad legal advice which he followed. The impaired driving charges were ultimately withdrawn when the accused plead guilty to one count of refusing to provide a breath sample.
The Court of Appeal of Alberta found that the sentencing Judge made several errors in his decision. One of these errors was that the sentencing Judge failed to consider the fact that the accused “cho[se] to drive while distracted in the context of his health and pre-existing alcohol problems.” The Court of Appeal found that this was an aggravating factor.
The Supreme Court of Canada was critical of the Court of Appeal for engaging in their own interpretation of the evidence by concluding that what happened was more than just a momentary driving error. Although it was accepted that the accused was not impaired by alcohol, the Court of Appeal concluded that the accused’s ability to drive was “knowingly impaired by health and other factors.” Specifically, the Court of Appeal concluded that the accused’s ability to drive was “impaired by the distraction offered by his argument with his wife, in the context of [his] health and drinking problems.”
The Supreme Court of Canada held that the concept of “impaired by distraction” was “both novel and confusing” and would not endorse it. The Supreme Court of Canada found that the Court of Appeal did so primarily to circumvent the lower Court’s finding that the accident was a result of a non-impaired driving error. The Supreme Court of Canada noted that in describing the circumstances of the accident, the Court of Appeal focused on the fact that the accused chose to drive (1) in a busy parking lot; (2) while angry and distracted; and (3) in the context of pre-existing martial/health/alcohol problems.
The Supreme Court concluded that the Court of Appeal:
[I]mproperly recast the accident as one caused by health and alcohol problems, anger, and distraction. It reweighed the evidence and looked to external factors that had no bearing on the gravity of the offence for which Mr. Suter was charged, nor on Mr. Suter’s level of moral blameworthiness.
The Supreme Court of Canada found that this was an error in principle that resulted in the imposition of an unfit sentence.
While impaired by distraction may not be sufficient for a criminal conviction, an individual’s state of mind while behind the wheel continues to play a significant role in motor vehicle tort claims. The standard to prove negligence is lower than the criminal burden of proof. Although the Supreme Court of Canada may not have been willing to assign criminal fault in these circumstances, the reasonableness of a driver’s actions in a similar civil setting is still fair game.