The Alberta Office of the Information and Privacy Commissioner (“Commissioner”) recently considered whether it had jurisdiction to deal with a privacy complaint. The Complainant alleged that De Beers Canada Inc....
The Alberta Office of the Information and Privacy Commissioner (“Commissioner”) recently considered whether it had jurisdiction to deal with a privacy complaint. The Complainant alleged that De Beers Canada Inc. collected his passport information in contravention of Alberta’s Personal Information Protection Act (“PIPA”).
The facts were relatively straightforward. The Complainant lived in Ontario and was hired by Memory Tree Video productions in Ontario as a subcontractor to provide television camera production services. The job required him to attend a De Beers diamond exploration site in northern Saskatchewan. Upon being hired, Memory Tree requested the Complainant’s passport information. When asked, he was told that De Beers needed this information and it was necessary in order to book the flight for him. This fact was disputed by a representative from De Beers. The Complainant provided the documentation but then filed a complaint with the Commissioner in Alberta.
In considering whether De Beers was subject to PIPA, the Commissioner noted that the company had its head office in Calgary. As such, when it collects, uses or discloses personal information within Alberta, it must comply with PIPA. However, if the information was collected outside of Alberta, PIPA would not apply. In such instances, either other provincial privacy legislation or the Personal Information Protection and Electronic Documents Act, federal legislation that protects privacy interests, would apply.
The Commissioner concluded that the subject matter of the complaint did not take place within Alberta but within Ontario. As such, PIPA did not apply and the Commissioner did not have jurisdiction.
Like in any civil case, the Commissioner will assess whether they have jurisdiction over the individuals/companies involved in the dispute. It is important to identify the correct venue and legislation that applies to a specific case and appeal to the proper entity that maintains jurisdiction over the dispute. Failure to do so may be fatal to a privacy infringement claim.
When I graduated law school, I never expected to practice in an area where waivers of subrogation came up so frequently (or at all). Even today, I’m surprised by the number of times an unattended stovetop can lead to complex coverage issues. Coincidence or not, here we are again; another stovetop, another disputed waiver of subrogation.
The recent Superior Court decision, Rocky Heights v. Judith Biber, involved an application to determine whether subrogation was barred by the language of a CGL policy. The decision does not devote significant space to the background of the claim but the below facts can be deciphered.
Rocky Heights Development Ltd. was the landlord, while Judith Biber and her husband were tenants. Biber also happened to be a corporate officer of Rocky Heights. The Bibers left hot oil on the stove unattended resulting in fire damage to the premises. Rocky Heights had a CGL policy with Optimum, which presumably paid for some of the damage. Optimum sought to subrogate versus Biber in the name of its insured, Rocky Heights.
The Optimum coverage included a "Commercial Building, Equipment and Stock Broad Form", which contained the following language:
The insurer, upon making payment or assuming liability therefore under this Form, shall be subrogated to all the rights of recovery of the Insured against others and may bring an action to enforce such rights. Notwithstanding the foregoing, all rights of subrogation are hereby waived against any corporation, firm, individual, or other interest with respect to which insurance is provided by this Form. [Emphasis added]
The policy's definition of "Insured persons" included:
[If the named insured is an] organization other than a partnership or joint venture, the said organization is an insured. The executive officers and directors are insureds, but only with respect to their duties as officers or directors. [Emphasis added]
Rocky Heights (i.e. Optimum, as subrogated insurer) argued that Biber was not in the course of her duties as an officer at the time of the incident causing the fire. As such, it submitted that the insurance was not "provided by [the] form" and the subrogation clause did not extend to Biber in the circumstances.
The court found that the subrogation waiver did extend to Biber, relying heavily on a prior decision, Tony and Jim's Holdings Ltd. v. Silva, 1999 CanLII 969 (ON CA). In that decision, the Court of Appeal dealt with a very similar situation involving a corporate landlord attempting to subrogate against Mr. Silva who caused a fire while cooking. He was arguably in the course of employment and asserted that he was President of the corporate tenant. The landlord's insurance policy contained a virtually identical subrogation clause to the Rocky Heights policy.
The Court of Appeal in Silva held that the waiver of subrogation clause applied to Mr. Silva, despite him not being named on the policy or a party to the commercial lease. The decision was largely driven by the fact that the lease impliedly required the landlord to insure the premises. The court found that the lease combined with the subrogation clause supported that Mr. Silva was an intended beneficiary of the waiver.
The court in Rocky Heights fully adopted the conclusions from Silva, although it is not entirely clear that the two are on even footing. Unlike Rocky Heights, the Silva decision did not deal with a similar definition of "insured person", which appears to limit coverage for officers/directors to acts performed in the course of their corporate responsibilities. As a potential contrasting factor, it seems that in Rocky Heights Ms. Biber may not have been in the course of her employment or her corporate duties. Additionally, in Rocky Heights, it is not clear whether the lease required the landlord to insure the premises and the relevant terms, which were important in extending coverage to Mr. Silva.
Altogether, the recent Rocky Heights decision reinforces the well-established precedent that third parties can benefit from limitations of liability provisions, including waivers of subrogation. However, it would be helpful to have more particulars about the underlying facts. The decision gives application to the prior Silva decision, which on its face might be broader than intended by the Court of Appeal. This may raise some interesting deliberation if Rocky Heights appeals.
This action arises from a fall that occurred on January 14, 2014 on common property owned by the defendant Strata Plan LMS2286 (the “Strata”). Strata retained the defendant Markic Development & Restoration Ltd (“Markic”) to perform some remediation work on its premises. The plaintiff alleges that the remediation work created a hazard that caused his fall.
The plaintiff and defendants filed summary trial motions (aka summary judgment motions) so the issue of liability could be determined before their 12-day jury trial scheduled to commence in December 2019. The plaintiff sought an order that the defendants were liable for the plaintiff’s injuries arising from the fall, while the defendants applied for an order that the plaintiff’s action be dismissed on the basis they were not liable for the plaintiff’s injuries.
After considering all of the evidence the court found in favour of the defendants and dismissed the plaintiff’s action.
At the time of the fall, the plaintiff had been a tenant of a unit in one of the buildings owned by Strata for about a year. At some point prior to January 2014 the bricks at the top of the stairs on a walkway (the “walkway”) had become uneven as a result of pressure from roots of a nearby tree. It was anticipated that the tree that was causing the problem would eventually be removed and a permanent repair to the walkway would follow. The Strata retained Markic to perform temporary remediation which consisted of removing the uneven bricks and replacing them with gravel (the “Temporary Remediation”).
On the morning of January 14, 2014, the plaintiff took the walkway to access his unit. He ordinarily did not use this particular walkway and could not recall the last time, prior to the fall, that he had used it. The plaintiff was ultimately found by a Markic employee, unconscious, and lying face down on the walkway some distance (an estimated 15 – 20 feet) away from the three steps on the walkway. Nothing was on the ground where the plaintiff was lying that might have explained his fall. Initially, it was thought that the plaintiff had had a heart attack or stroke.
The plaintiff did not know what caused him to fall and “speculated” that he tripped on something as “that’s what makes the most sense.” His theory is that he must have tripped on a “lip” between the loose gravel that was placed as part of the Temporary Remediation and the paving stones on the walkway. The court was provided with photographs of this lip which depicted a small lip between the loose gravel and the paving stones; it was, according to the court, very difficult to determine the exact measurement of this lip from the photographs and “it could certainly not be characterized as pronounced.”
The Occupiers Liability Act
The plaintiff’s position was that the Strata owed him a duty of care under the Occupiers LiabilityAct (“OLA”) to ensure he would be reasonably safe in using the premises and that Markic owed a common law duty to persons walking in the remediation area to carry out the Temporary Remediation in a manner that did not constitute a hazard.
The court noted that the fact the plaintiff could not recall the precise mechanism of his fall was not determinative and direct evidence of causation was not required, so long as the evidence as whole led to the drawing of a reasonable inference of causation.
The court ultimately concluded that the evidence did not logically support an inference of causation for the following reasons:
The photographs show a slight unevenness in the surface of the walkway that could hardly be described as a recognizable risk, or even objectively unreasonable in terms of the degree of evenness that one might expect of a walking surface
The Temporary Remediation was in place for a number of months without incident or complaints about it
The plaintiff, himself, never reported his fall to the Strata until three months later and after he had moved out of his unit
There was no expert evidence in this case to support the inference that the condition of the remediation area was hazardous
The patient care hospital record quotes the plaintiff as reporting that the fall was due to him “tripping on an unanticipated step”
In light of these facts, the court was unable to conclude on a balance of probabilities that the plaintiff’s fall was caused by the Temporary Remediation as the evidence did not support the drawing of a rational inference of causation, and dismissed the plaintiff’s action
The photographs produced made a significant impact on the court’s decision. Her Honour was clear that the slight unevenness of the walkway did not represent a risk. It did not help the plaintiff’s case that he could not provide any evidence as to what could have caused him to fall. While the court pointed out that that, in itself, is not crucial, the evidence as a “whole” must permit the drawing of a reasonable inference on causation. The above factors, taken all together, dissuaded the court from making such a finding. One wonders if engineering evidence had been presented whether that would have been enough to sway the court in the plaintiff’s favour.
Around 8 a.m. on an October day in 2015, the plaintiff drove to a strip mall that was operated and maintained by the defendant, Value Industries. She parked parallel to a curb outside of a Save on Foods store with the intention of walking up the wheelchair ramp to the store. However, she was slightly away from the ramp when she stepped off the parking lot such that she tripped on a curb and fell. The plaintiff argued that if the curb had been painted yellow, as it had been in previous years, she would have noticed it and not suffered her subsequent injuries.
Between 2009 and 2014, the defendant painted the subject curb on an annual basis at a cost of $5,000.00. Annual repainting was required as the paint would eventually chip away. In 2015, the defendant decided to stop repainting the curb and sandblasted the remaining chipped paint. The cost for annual repainting had not gone up, such that the decision was not made for fiscal reasons, but instead, for aesthetics.
An action was commenced and the defendant brought a summary trial application stating there was no breach of its responsibilities under B.C.’s Occupiers Liability Act.
The Court noted that while the Act places a positive duty on an occupier, there is no presumption of a breach of duty. Rather, the onus is on the plaintiff to demonstrate how the defendant failed to take all reasonable steps required in the circumstances. The fact that she suffered injuries was not enough, in and of itself, to meet that burden.
The defendant relied on Gervais v. Do, a B.C. Superior Court decision, to argue that applying paint to a curb will not necessarily assist in indicating a height differential and, as well, that it is not reasonable for pedestrians to expect a complete matching of surfaces when walking in outdoor areas (e.g. a parking lot) with transition areas (e.g. to walkways and buildings).
The plaintiff argued that, unlike the surfaces in Gervais, there was no clear color contrast between the grey concrete roadway and the grey concrete curb she tripped on. As well, when the plaintiff arrived at the property, the subject curb was under the shade of the Save on Foods building, making the area dark and lacking in light contrast. The subject curb also sloped all the way from street grade, at the location of the wheelchair ramp, up to eventual full curb height. The plaintiff thus argued that the defendant should have taken the reasonable step of continuing to repaint the curb yellow, at no increased cost, in order to bring the curb and its gradient height to the attention of pedestrians.
The Court disagreed and ruled in favour of the defendant. The Court examined photographs of the curb and noted that it was structurally sound, not obscured by any landscaping feature and of a standard height. The curb ran along the edge of a sidewalk and did not pose any foreseeable risk or hazard, such that the defendant had no duty to remediate by repainting the curb yellow each year. The Court also agreed that any prudent pedestrian would reasonably expect there to be a change in elevation between the surface of a parking lot and a sidewalk.
The Court dismissed the plaintiff’s various arguments. The mere fact that part of an urban landscape may be in shade during various parts of a day did not mandate bright yellow painting. The Court also noted that the plaintiff was familiar with the subject parking lot. Despite knowing that there was a curb in the area, she chose to step off the parking lot onto the sidewalk. She believed she was heading towards the ramp built into the curb, tried to anticipate its position and angle, but was wrong. As such, the Court found that the plaintiff’s unfortunate accident was caused by her own inattention.
This decision highlights that trip and fall claims should involve a scrutiny of the level of care exercised by a pedestrian, as well as a pedestrian’s familiarity with the area of the fall. It also highlights that common sense will prevail in disputes related to whether an occupier, under the prevailing legislation, has a duty of care to bring specific features of an urban landscape to the attention of pedestrians.
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 Ontario Court of Appeal recently weighed in on the Occupiers’ Liability Act and the appropriate evidence admissible on a motion for summary judgment motion. In Drummond v. The Cadillac Fairview Corporation Limited, the Plaintiff attended Fairview Mall with his family. While there, he was injured after he tripped over a skateboard that belonged to a young boy. The Defendant brought a motion for summary judgment to dismiss the action. Although the Plaintiff did not bring a cross-motion, the Motion Judge granted judgment in favour of the Plaintiff.
The Defendant filed an appeal on three grounds – (1) the judgment was the product of an unfair process; (2) the Motion Judge admitted inappropriate hearsay evidence; and, (3) the Defendant’s summary judgment motion should have been granted. Fairview was successful on all three grounds.
First, the Court of Appeal found that the Motion Judge’s decision was not a “fair and just determination.” The Court of Appeal noted that the Plaintiff did not bring a cross-motion for judgment and argued in his factum that a trial was required to determine liability. Specifically, one of the reasons advanced in opposing the motion was that the case would be more fairly and justly determined at trial because further evidence from additional witnesses was needed. The Court of Appeal was also critical that contributory negligence, which was raised by the Defendant, was not considered by the Motion Judge. Finally, the Judge failed to put the Defendant on notice and in doing so, failed to afford the Defendant an opportunity to address litigation risk. The Court of Appeal concluded that the lack of procedural fairness on the motion was a sufficient basis to allow the appeal.
Second, the Court of Appeal found that the Motion Judge erred in admitting hearsay evidence for the truth of its contents. Specifically, the Court of Appeal accepted the Defendant’s submission that the Judge’s finding was grounded on his erroneous admission of hearsay evidence on key, contested issues. This error constituted an additional reason to set aside the Judgment.
Finally, the Court found that Fairview was entitled to summary judgment. The central issue was whether the Defendant breached its duty to take reasonable care for patrons visiting the mall. Once the inadmissible hearsay evidence was removed from the negligence analysis, the remaining material evidence was all from the Defendant. This evidence established that: (1) Fairview had in place reasonable policies to ensure the safety of those entering the premises; (2) Fairview implemented policies in a routine and reasonable manner on the day of the incident through the patrols by the security guards; and, (3) Fairview had no reason to foresee that the young skateboard owner’s conduct might pose a risk to the Plaintiff or any other patrons.
Unsurprisingly, the Court of Appeal decided that an occupier was not responsible for the actions of a guest on a property if the occupier put in place sufficient means in an attempt to decrease risk. Although there are always risks that are foreseeable, which ought to be addressed by the owner or occupier of a premises, there are other risks that are created by the actions of visitors that the occupier simply cannot foresee and cannot prevent.
Data and privacy breaches caused by malicious actors accessing your organization’s systems are here to stay. Once considered an emerging risk, “cyber” is now a hard reality facing every organization....
Data and privacy breaches caused by malicious actors accessing your organization’s systems are here to stay. Once considered an emerging risk, “cyber” is now a hard reality facing every organization. Given the frequency of employees causing cyber breaches, human resources professionals have a growing role to play in managing this risk.
More likely than not, your organization will suffer a cyber breach and one of your employees will be the cause. In reality, personnel are just another type of software to be manipulated. Malicious actors often use an organization’s own employees to further their unlawful goals with the majority of breaches result from the actions (or inaction) taken by an organization’s employees. The 2018 NetDiligence Cyber Claims Study found that in 2017, approximately 58% of all claims were caused by ransomware, business e-mail compromise, phishing, rogue employees, or staff mistakes.
When dealing with a breach, there are significant legal consequences for an organization from a human resources standpoint. The human resources department can play a key role before, during, and after a breach event to mitigate these consequences.
Before a breach, human resources departments are frequently tasked with arranging appropriate cyber training for an organization’s employees. Ensuring that employees establish good password hygiene, can identify phishing attempts, and know when to report a possible breach will likely fall in HR’s wheelhouse.
During a breach, a senior member of HR makes an excellent addition to an organization’s response team. Consistent and accurate internal messaging during a breach is important. HR professionals know their team of employees and the most effective methods of communication. They know the individuals involved and have (hopefully) developed a rapport with their team members. Crucially, they are familiar with performing and facilitating investigations and can provide invaluable assistance in the fact gathering stage of a breach. Employees will often be more at ease speaking to an external breach coach or forensic investigator in the presence of an HR professional they know and trust. If a malicious insider is suspected, they may have information pointing to a likely suspect.
In the aftermath of an employee-caused breached, HR has a continuing role. According to a survey from Kaspersky Lab, 31% of breaches result in organizations terminating at least one high level employee. After an employee caused breach, an organization will have to make a decision. What do you do with the at fault employee? In the case of the malicious insider, termination seems obvious; however, what of the “innocent” but negligent employee? In some cases, dismissal may not always be the most appropriate result. Additional training, supervision and guidance may be the more effective approach.
If an employee is dismissed, that dismissal may have an impact on future risk. If senior management is calling for heads to roll, HR knows the legal requirements for a proper dismissal. HR is in a good position to determine whether a dismissal for cause is legally defensible. Employers have an obligation of good faith and fair dealing in the manner of dismissal. HR knows that frog marching a negligent employee out the door in full view of the office on the same day of the breach may not be advisable. It impacts morale and risks opening the door to future litigation. Additionally, employees who are dismissed in a summary manner are less likely to be cooperative with the organization if (and when) a third party lawsuit comes knocking.
The Take Away
The risk presented by cyber breaches is daunting but has also provided an opportunity for human resources professionals to maintain their position as proactive problem solvers. While cyber is now an established risk that impacts every sector of the economy, many organizations lack a comprehensive breach response. Every organization is different and has different needs and exposures. The need for a unique and tailored approach provides a real opportunity for senior HR professionals. Early and active involvement of these team members in developing and strengthening your organization’s training, culture, and response can mitigate your risk from this growing problem at all stages.
Devan Marr’s practice has focused on bodily injury, long term disability, statutory accident benefits, and employment claims.