Author: Neil Colville-Reeves

by Neil Colville-Reeves

Wait – Let Me Grab My Purse!

In the recent LAT decision of S.B. and Aviva, a woman who sustained injuries after retrieving her purse from her car, closing the door, and then falling to ground did NOT meet the definition of “accident” as defined in the SABS. Instead the applicant’s fall in this case was considered to be an “intervening act”, which in turn was the “direct” cause of her injuries and not the use or operation of her automobile.

On November 28, 2017 the applicant arrived at a gas station, put gas in her car, went to retrieve her purse from the front passenger seat of her car in order to pay. She closed the door, turned to walk away, and fell to the ground sustaining injuries. Her body did not come into contact with the car. In determining whether an accident had occurred for the purposes of the SABS, Adjudicator Fricot implemented the well-established two-part “Purpose” and “Causation” test from the Ontario Court of Appeal decision in Greenhalgh v. ING Halifax Insurance Co.

 Purpose Test

The applicant relied on the Davis case which held that routine maintenance (checking and topping up fluid levels, checking tire pressure, filling the gas tank) satisfies the purpose test. She further relied on Caughy for the proposition that there was no requirement that the vehicle be in active use to satisfy the purpose test.

Adjudicator Fricot found that Davis was distinguishable because the applicant in that case was injured when the hood of the car collapsed on her while she was refilling her windshield washer fluid, unlike in the case at bar where the applicant had completed refueling and was walking away at the time she was injured.  Further, Adjudicator Fricot found Caughy was distinguishable because in the case at bar the applicant had no contact with any parked vehicle when she fell, nor had contact with a parked vehicle caused her to fall.

The Adjudicator agreed with the Insurer that the purpose test was not met because the applicant’s use of the vehicle had ended prior to the fall when she retrieved her purse, closed her car door and walked away.

Causation Test

Of note, neither party made submissions on the applicability of the “but for” test but instead focused on the intervening causes analysis and the dominant feature test.  In her intervening cause analysis, Adjudicator Fricot referred to a number of cases where a person had fallen outside a parked car, including Banos, where the arbitrator had concluded that “a common sense view of the facts in this case militates against a parked car that has already been refuelled as constituting a “use” in terms of the two-fold test” and held that the slip and fall on ice was the sole cause of injury, not the use and operation of the vehicle. With respect to the dominant feature test, Adjudicator Fricot found that although the applicant’s fall was very close to her car, she did not come in contact with her car when she fell, nor did the car cause her to fall. Accordingly, the use of her car was neither a dominant feature in her fall nor did her car or the use or operation of that car cause her to fall.

Having not met the purpose and causation test, the application be dismissed.

A copy of the decision in S.B. and Aviva can be found here.

by Neil Colville-Reeves

Homeowners, Distributors and Contractors – Plenty of Blame to Go Around in Spill Case

The Court of Appeal has dismissed the appeal of a fuel supplier found 40% at fault in a case involving the discharge of 500 litres of fuel oil from two indoor residential tanks. The oil leaked into the soil underneath and around the house and ultimately made its way into a nearby lake. Remediation costs reached almost $2 million. The court also dismissed the appeal of the plaintiff homeowner who was found to be 60% contributorily negligent for the loss.

In Gendron v. Thompson Fuels, the plaintiff homeowner personally installed two indoor fuel tanks in his basement and did not have them inspected by a certified Oil Burner Technician as required. He also failed to have the tank and system inspected annually. The installation was not compliant with the B 139 installation standard which rendered the system non-compliant with Regulation 213/01 under the Technical Standards and Safety Act. Distributors are required to take certain steps when they find that a system is not compliant with the Regulation and in short, after 90 days can no longer deliver fuel to the system until it is brought into compliance. In this case, the distributor continued to deliver fuel oil to the non-compliant system for several years until the loss occurred.

Claims by the homeowner were advanced against the distributor, Thompson Fuels, the tank manufacturer, Granby Inc. and the TSSA for failing to take certain steps after the loss which may have lessened the impact of the spill.

The Court of Appeal was unwilling to disturb the trial judge’s finding that Thompson had not conducted a comprehensive inspection as required under the Regulation. A distributor is not only required to have a comprehensive inspection done at least once every 10 years, it is also required to maintain the record of that inspection. Thompson had no record of any inspection. The court emphasized that the 50 occasions of oil delivery when there had been no comprehensive inspection represented a frequent and flagrant breach of the Regulation. This was characterized as the cornerstone of the case against the distributor and the 40% allocation of fault.

The plaintiff homeowner was found 60% at fault for the loss as a result of a combination of factors – his improper installation of the tank, his failure to have the system properly inspected on a regular basis and his delay of almost 12 days in reporting the loss to his insurance company which resulted in increased damages.

Of interest was the appeal court upholding the finding that the TSSA did owe the homeowner a duty of care at the time of their initial attendance after the loss was reported. However they found no liability as there was no evidence of the appropriate standard of care of a TSSA inspector. The tank manufacturer, Granby had settled their portion of the claim by way of a Pierringer Agreement. However, the court upheld the trial judge’s finding that Granby had no liability.

There are a number of important takeaways from the decision and as a result it is worth a close read. For instance, the court accepted the evidence on the standard of care of an OBT as it pertains to undertaking a dip test to determine the presence or not of water on indoor tanks. For many years there has been no requirement to do so on an annual basis for indoor tanks while there has been a requirement for a dip test on outdoor tanks. There was standard of care evidence of OBT’s in this case that dip testing for water on indoor tanks was routine.  

A copy of the decision in Gendron v. Thompson can be found here.

by Neil Colville-Reeves

Mitigation? I Don’t Think So. (there’s a twist)

A recent case out of Ontario’s Superior Court of Justice focuses on the obligation of an insurer under a labour and materials payment bond. What makes the case interesting is that on the face of it, the plaintiff sub contractor ended up in a better position as a result of all of the circumstances surrounding the underlying claim including multiple breaches by the GC. The insurer argued that this was a simple case of mitigation and that the plaintiff had mitigated its losses and was therefore not entitled to recovery under the bond. The court saw it differently.

In Lopes v. Guarantee Company of North America, the plaintiff was a sub-contractor who sued under a surety bond issued to the General Contractor, Gorf Manufacturing. Gorf failed to pay invoices to the plaintiff totaling approximately $250,000. Gorf subsequently abandoned the project entirely.  The plaintiff sent Notice of Claim to the insurer for the unpaid invoices in accordance with the bond terms. Concurrently, the project owner sought from the insurer that arrangements be made for completion of the project pursuant to the Performance Bond that had been issued together with the labour and material bond. The insurer retained a new GC who accepted new bids to complete the work pursuant to a Completion Contract.

The plaintiff bid to complete its work with the new GC and was awarded the contract which paid it $550,000 more than what they would have been paid under the original contract prior to the default by Gorf. In other words the abandonment of the project by Gorf resulted in a significant windfall for Lopes.   From a commercial perspective, the plaintiff had been put in a better position as a result of Gorf abandoning the project that it would otherwise have been.

The insurer argued the doctrine of mitigation, noting that by entering into the new contract at a premium, the plaintiff had mitigated its damages.  The plaintiff took the position that the benefit gained under the successful bid for the Completion Contract was irrelevant to the unpaid invoices breach.

The court noted that the wronged party has a duty to mitigate damages that were ‘consequent to the breach’. In this case the plaintiff’s windfall was not consequent to the breach for which indemnity was sought under the labour and material bond; i.e. unpaid invoices. Rather the windfall was related to the original GC (Gorf) abandoning the project. Therefore, the benefit obtained by Lopes in successfully bidding for the Completion Contract could not be characterized as mitigation of their damages for the unpaid invoices which was the breach that gave rise to the bond claim. This case is unique as the defendant was arguing that the plaintiff was not entitled to damages because it had mitigated its damages. The court did not find that the plaintiff did not mitigate its damages. It simply found that the principle of mitigation did not apply.

This decision is an interesting read and a good refresher on the principles of mitigation. The decision can be found here.

 

by Neil Colville-Reeves

“Other Insurance” and “Irreconcilable Limiting Intentions”

What happens when two insurers cover the same risk and each declare themselves excess to other available insurance? Ontario’s Court of Appeal addressed that issue in the recent case of TD General Insurance v. Intact Insurance­, which involved a claim for bodily injury advanced by a passenger in a boat driven by the insured.

The TD policy covered the specific boat involved in the accident and the driver was covered as he was operating the boat with the owner’s consent. The driver was also covered under his homeowner’s policy with Intact, which provided liability coverage for claims arising out of the insured’s use or operation of any type of watercraft.  Each policy declared itself excess to other available insurance.

Because the TD policy specifically covered the boat in question, the application judge held that the TD policy provided primary insurance for the watercraft in question and dismissed TD’s application that the two policies share equally in the defence and indemnity of the driver. In doing so he relied on the ‘closeness to the risk approach’ in which courts consider:

1. Which policy specifically described the accident causing instrumentality?
2. Which premium reflect the greater contemplated exposure?
3. Is coverage of the risk primary in one policy and incidental to the other?

Unfortunately the Supreme Court of Canada expressly rejected this approach to overlapping coverage in the Family Insurance Corp. v. Lombard Canada Ltd. Case. Instead, the Supreme Court preferred to focus on “whether the insurers intended to limit their obligation to contribute, by what method, and in what circumstances vis-à-vis the insured”. Because the contest, as here was between two insurers, the court held that there was no need to look to surrounding circumstance and instead relies strictly on the policy wording. If there are no limiting intentions or limiting intentions that cannot be reconciled, the burden is shared equally between the insurers. The Court of Appeal considered the identical ‘other insurance clauses’ to be limiting intentions. Because each policy was declared excess to the other, the court concluded that they were irreconcilable. As a result, the policies had to contribute equally. The reasons of the Court of Appeal in this case are nuanced and underscore the importance of a close reading of policy wording when faced with a circumstance of overlapping coverages.

by Neil Colville-Reeves

Getting Paid to Sleep? Professionally Designated Spouses Can Now Be Paid for Overnight Supervisory Care.

 
The decision in E.E v Aviva Insurance Company, 2018 CanLII 76415 (ON LAT) deals with a request for reconsideration by the respondent of parts of the decision issued by the Tribunal, including the finding that the applicant was entitled to attendant care benefit (including 24 hour supervisory care) alleged to have been provided by his wife, a registered PSW and RPN. At reconsideration, Associate Chair Stephen Jovanovich, agreed with the Tribunals analysis of “incurred”, and found that the test was satisfied under section 3 (7)(e) of the Schedule.

With regard to whether the care was provided during “the course of the employment, occupation or profession in which he or she would ordinarily have been engaged”, Associate Chair Jovanovich found that despite the fact that the applicant’s wife did not contract with private clients and was employed by a healthcare agency, it was not necessary for the applicant to tender his wife’s services through her employer.

With regard to “but for the accident” the respondent submitted if the evidence of the applicant’s spouse were taken at face value, then “but for the accident” the only periods she would have been working as a nurse was from January 2013 to June 2014 and from June 2015 to December 2016. The remainder of the time, the applicant’s spouse was on maternity leave, and according to the respondent she would not have been actively working during those time frames in any event. Associate Chair Jovanovich disagreed with the respondent and found that if this position were correct, then any time a spouse who is providing needed services is on any type of leave, the ACBs would not be payable. In Associate Chair Jovanovich’s view, this was not the correct interpretation of the relevant sections of the Schedule.

With regard to whether the applicant had paid “the expense, had promised to pay the expense or was otherwise legally obligated to pay the expense”, Associate Chair Jovanovich agreed with the adjudicator’s conclusion that, based on the evidence of the applicant, his spouse and the Attendant Care Confirmation of Expenses for Services Provided, in which the applicant certified that he promised to pay his spouse for the service, the condition in section 3(7)(e)(ii) of the Schedule was satisfied.

With regard to whether the adjudicator erred in allowing payment for overnight supervision, the respondent submitted that there was no evidence that such overnight supervision was part of the applicant’s spouse duties at her place of employment. The respondent relied on the decision in Y.D. and Aviva Insurance, 2017 CanLII 43883 (ON LAT), where certain personal services were provided by the insured’s spouse who was a physician practising as a fertility specialist. In the Y.D. and Aviva Insurance decision, the adjudicator wrote that the test to be applied was whether the spouse/physician was providing services to his wife in the same manner as he was providing in his normal employment, not what he may have been otherwise qualified to do.

However, in Associate Chair Jovanovich’s view, the case involved very different circumstances that could not be applied to the present matter. According to him, the applicant’s spouse was qualified to provide attendant care, a component of which is providing basic supervisory care. The fact that she may not have actually done so on an overnight basis in the course of working for her employer was irrelevant. He further found that it was reasonable for the adjudicator to find that 24 hour supervisory care was necessary based on the evidence presented.

Overall, Associate Chair Jovanovich upheld the original decision supporting the attendant care claim and indicated that it would “… seem odd, as a matter of public policy, to mandate that insureds with a trained professional in their direct families who care for them be obligated to arrange equivalent support services from outside the family in order for it to be compensable”.

After having articled at Samis + Company, Gurpreet was honoured to join the firm as an Associate in July of 2018. During her time with Samis, Gurpreet has gained valuable experience in various areas of ligation work including: tort law, statutory accident benefit claims, subrogation, priority disputes, and estates law. One of the things Gurpreet enjoys most about being a part of the Samis team is the opportunity to have a diverse and dynamic practice that allows her to continually build on her strengths as a litigator. Gurpreet regularly speaks to matters at the Small Claim Court and the Superior Court of Justice level.

by Neil Colville-Reeves

Hey Neighbour…It’s About that Fence

 

The Court of Appeal has provided further guidance on the issue of prescriptive easements in the case of Hunsinger v. Carter. The case involved one party having uninterrupted use of a shared driveway over a 40 year period for commercial purposes, facing off against a neighbor who purchased the property last year and attempted to restrict his neighbours historic use of the property. The ‘new’ neighbor was operating a daycare and wanted to erect a fence in the middle of the shard driveway for reasons of safety.

On application, the court held that the ‘new’ neighbor could erect the fence, in part relying on the finding that the historic neigbour would be able to maneuver vehicles on their portion of the driveway and that the fence would not provide an absolute impediment to doing so. The application court judge found that the historic neighbor had established a prescriptive easement over the driveway as it was the dominant tenement for over 40 years before 2007 when both properties were registered in the Land Titles system. The appellant and his family had made use of the gravel driveway “openly, continuously, and without licence over this period. However, the application court judge found that the obstruction of the easement in erecting a fence was allowable because that portion of the driveway which was obstructed was not needed to be used by the historic neighbor.

The Court of Appeal disagreed, finding that building the fence would encroach on the easement. It is interesting to note that the Court did not disagree that the proposed fence did not prevent the historic neighbor from utilizing the driveway to access the back of his property. Rather it was clear that the court accepted the argument that the fence would substantially interfere with the neighbours use. Encroachment is only permissible where the encroachment does not substantially interfere with the easement and in this instance, the fence was thought to constitute a substantial interference.

by Neil Colville-Reeves

It’s About Permanence (or not)

 

A recent Superior Court decision allowed an appeal from an arbitrator’s award in a priority dispute dealing with financial dependency, on the basis that the decision was not reasonable. In State Farm v. R, the arbitrator determined that two claimants were not financially dependent on State Farm’s insured, leaving the Motor Vehicle Accident Claims Fund as the payor of both claims.

The underlying factual matrix was complex, involving two claimants and a multi-generational extended family. There were a number of family members who had recently moved to Canada and were residing in different family residences. Essentially, the claimants had lived with one family member for a period of 3 months before moving into the residence of another family member for the 3 months prior to the accident. One claimant was in receipt of ODSP and on this basis, no dependency was found regardless of the time frame used. That decision was upheld on appeal as being reasonable.

For the other claimant, who had no means of support other than from the person with whom she was residing, the arbitrator used a 6 month time frame to analyze financial dependency. The critical aspect of the case which informed the Court’s ruling was the arbitrator’s determination that the 3 month period prior to the accident was not the appropriate time frame because it lacked an element of permanency. In the case of Intact v. Allstate, the Court of Appeal ruled that importing a permanency test into the process of determining the appropriate time frame to analyze dependency was inconsistent with applicable legal principles. This was the nub of the determination in Intact v. Allstate.

Therefore, the decision as it pertained to that particular claimant was overturned. In spite of only residing with the State Farm insured for a 3 month time period, with no indication that this was circumstance was permanent, the claimant was found to be a dependent of the State Farm insured.

Establishing the appropriate time frame to analyze dependency is a fundamental and critical part of any dependency analysis. This is an issue that is determined case by case and ultimately depends on finding the time frame that reflects the circumstances of the parties at the time of the accident. The decision in State Farm v R. can be found here.

https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4258/2018onsc4258.html

 

by Neil Colville-Reeves

Wrinkles in Risk Shifting

 

Ontario’s Court of Appeal has again addressed issues relating to commercial tenancies and the impact of lease provisions which obligate one party or the other to obtain insurance for the benefit of another. In CLLC Inc. v. 20 Eglinton , the tenant was obligated to obtain insurance throughout the period of their possession of the premises, and for the entire term, with the landlord named as an insured. The tenant did not obtain the insurance as required. Water leaks in the premises resulted in loss and damage to the tenant who brought an action against the landlord. Summary judgment dismissing the action against the landlord was granted and the tenant appealed. The Court of Appeal set aside the summary judgment, noting that the motion judge had not adequately considered and resolved factual disputes in finding that there was no genuine issue for trial.

Although not technically a subrogated claim (because no insurance was obtained so no insurance claim was advanced), the principles and arguments that were in play are relevant to subrogated claims.

One particular point of interest was the issue of when the leaks caused damage and the resulting question of whether the premises were even insurable given that the water leaks may have been pre-existing. The defendant conceded that if the premises were not insurable for whatever reason, the tenant would not be bound by the covenant to insured.

As a result the Court of Appeal set aside the summary judgment motion given that there were genuine issues in play that required a trial. This case underscores a point made in prior blogs on this site and others – read the lease or whatever underlying agreement is in play carefully and understand how the obligations of the parties fit within the factual matrix. It will be different in every case.

https://www.canlii.org/en/on/onsc/doc/2018/2018onsc4002/2018onsc4002.pdf

 

by Neil Colville-Reeves

Woulda, Coulda, Shoulda – Equitable Subrogation and Mortgage Priorities

 

The Court of Appeal’s reasons in L-Jalco Holdings v. MacPherson reminds us that the concept of subrogation extends beyond the realm of insurance and into the realm of mortgage priority claims. In L-Jalco, the plaintiff lender advanced funds to a property owner who discharged only one of two prior mortgages with the funds advanced, while registering a new mortgage in its favour. The prior (then undischarged) second mortgage moved into first position and the plaintiff’s mortgage fell into second position. When the property owner defaulted, the plaintiff sold the property under power of sale and sought an order that its mortgage had priority against the first mortgage and in so doing attempted to in effect cut the first mortgagee out of participation in the sale proceeds.

The plaintiff floated two arguments:

1. the ‘new’ first mortgagee had undertaken to discharge its mortgage and failed to do so and would be unjustly enriched if they maintained priority; and
2. the plaintiff could have preserved the priority by taking an assignment of the original first mortgage and therefore it would be equitable that the plaintiff receive priority through being subrogated to the discharged first mortgagees priority position

The court rejected both arguments.

Importantly there was a finding that the plaintiff was aware of the undischarged mortgage and seemed not to care at the time of the original closing. This knowledge was critical to the court’s finding because it took it out of the realm of cases where there was a mistake that lead to an unjust result. The Court of Appeal’s 1997 decision in Mutual Trust v. Creditview was referred to in the underlying reasons to juxtapose circumstances where a mortgagee has knowledge of prior encumbrance vs a circumstance where a mortgagee has no knowledge as a result of a mistake. Mutual Trust involved a mortgagee who was unaware of CPL’s registered on title when its mortgage was registered and when it discharged first mortgages held by Scotia. The court held that Mutual Trust was unaware of the CPL’s as a result of its solicitor’s mistake. They found that if Mutual Trust was not subrogated to Scotia’s interest as the prior first charge, the holder of the CPL would be unjustly enriched as a result of a solicitor’s error. The court also identified that the plaintiff could have taken an assignment of the discharged mortgagee’s interest. However, the lack of knowledge was critical to the court’s finding.

Subrogation in the context of mortgage priorities embraces the same underlying concept as traditional subrogation – one party standing in the shoes of another. However, there is no automatic statutory or common law right of subrogation for mortgagees. Rather it is available only if facts support the fairness of granting it.

 

by Neil Colville-Reeves

Notwithstanding the Covenant to Insure

 

For those keeping score, subrogating insurers have been coming up on the short end of the stick in cases involving commercial leases. The Court of Appeal’s decision in Royal Host v. 1842259 Ontario (released May 18, 2018) goes the other way in permitting an insurer of a landlord to advance a subrogated action against an at fault tenant. On that basis alone, it is worth a close look.

The lease in issue in Royal Host contained provisions we often see in commercial leases. The landlord was required to obtain fire insurance and the tenant contributed financially to the premiums for that insurance. The lease contained a provision that the tenant was not relieved of any liability arising from or contributed by its acts, fault or negligence.

The motion judge ruled in favour of the tenant and dismissed the subrogated action commenced by the landlord’s insurer, relying on what he called the ‘general rule’ in the Supreme Court of Canada’s risk shifting trilogy ( Agnew-Surpass v. Cummer-Yonge, 1975 CanLII 26 (SCC) , [1976] 2 S.C.R. 221; (ii) Ross Southward Tire v. Pyrotech Products, 1975 CanLII 25 (SCC) , and (iii) T. Eaton Co. v. Smith et al., 1977 CanLII 39 (SCC) ) that ‘subrogation rights will be limited where a landlord covenants to pay for the insurance and agrees to look to its own insurer for any loss’. On appeal, Ontario’s Court of Appeal overturned the motion judge and permitted the matter to proceed. The appeal court relied on a number of lease provisions which in their view made it clear that the risk of loss by fire was to be borne by the tenant if they were responsible for the loss.

The Trilogy is the starting point for the analysis of commercial leases in subrogation claims in the Canadian environment and is worthy of brief review. In Surpass , the landlord covenanted to maintain fire insurance on the premises. There were no tenant repair covenants in the lease. The lease did require the tenant to take good and proper care of the leased premises, “except for reasonable wear and tear…and damage to the building caused by perils against which the lessor is obligated to insure hereunder”. The landlord’s insurer was precluded from subrogating in Surpass, and with good reason. There was a clear relationship between the tenant’s covenant to repair and the landlord’s covenant to insure. The provisions worked together harmoniously – the tenant was not required to repair if the damage was caused by a peril against which the landlord was required to insure.

In T. Eaton, the lease provisions were similar although the tenant’s covenant to repair was not tied in any way to the landlord’s covenant to insure as it had been in Surpass. Despite this distinction, the Supreme Court found in favour of the tenant and prevented the landlord’s insurer from subrogating. In effect, the covenant to insure trumped the covenant to repair.

How did the Court of Appeal reach a different result in Royal Host? The devil is in the details as they say and in this case, the details are the lease provisions. Specifically, the section of the lease that required the landlord to obtain insurance also included the following language:

Notwithstanding the Landlord’s covenant contained in this Section 7.02, and notwithstanding any contribution by the Tenant to the cost of any policies of insurance carried by the Landlord, the Tenant expressly acknowledges and agrees that

1. the Tenant is not relieved of any liability arising from or contributed to by its acts, fault, negligence or omissions, and
2. no insurance interest is conferred upon the Tenant, under any policies of insurance carried by the Landlord, and
3. the Tenant has no right to receive any proceeds of any policies of insurance carried by the Landlord.

The effect of using the word ‘notwithstanding’ is to provide a limited circumstance in which the benefit conferred to the tenant will not apply; namely when the tenant’s ‘acts, fault, negligence or omissions’ result in loss or damage. The parties had turned their minds to the issue of which party was to bear the risk of loss in this circumstance and despite the landlord’s covenant to insure, the lease precluded the tenant from enjoying the benefit of that insurance if the loss resulted from its negligence.

It is worth noting that the motion judge in this case repeatedly referred to the ‘general rule’ derived from the Trilogy which was to limit subrogation rights when the landlord agreed to obtain insurance. The Court of Appeal disagreed with this interpretation and clarified that the Trilogy did not pronounce a general rule of application nor did it enunciate freestanding principles. Rather, ‘the principles drawn from the trilogy are contractual in nature. They are conclusions that flow from and reflect the particular provisions of the leases that were in issue in those cases’. This underscores the first rule in analyzing subrogation rights when commercial leases are involved: try to discern the intention of the parties based on the lease language. https://bit.ly/2KCPH0p

 

by Neil Colville-Reeves

What’s Reasonable?

 

What’s Reasonable?

That is of course a subjective question and one that you won’t find an explicit answer for in the case of Konopka v. Traders. However, you will read about what is not considered to be reasonable conduct in the context of an OAP 1 policy breach. In Konopka, the elderly insured fell ill while driving to her cottage and permitted her unlicensed husband to drive her vehicle to a nearby parking lot where they intended to stop and rest until she felt better. Shortly after taking the wheel, the unlicensed husband caused an accident. There was no dispute that the insured was aware that her husband was unlicensed and as a result on the face of it she was in breach of the ‘authorized by law to drive’ provision in section 4(1) of the policy. The insurer denied coverage as a result.

The court noted that a breach of this nature was subject to a strict liability standard which required that the insured to establish that she took all reasonable steps to avoid the particular event. The reasonableness standard requires a consideration of the nature of the breach, what caused it and all of the surrounding circumstances that explain the act or omission. The court ultimately determined that it was not reasonable for the insured to allow her husband to drive. It is worth noting that the court relied in large part on the discovery transcript of the husband which betrayed a level of confusion and an inability to focus. The court ultimately concluded that the husband was someone ‘who simply cannot get his bearings’ and as a result it was not reasonable to allow him to drive, regardless of the circumstances.

This case is fact driven but provides a good counterpoint to the decision of Ontario’s Court of Appeal in Kozel v. Personal. In that case, the insured was also in breach of section 4(1) for driving while she was not authorized by law to drive. However, in that case the license suspension was the result of a failure to respond to a license renewal notice which was considered to be a ‘relatively minor breach’. In contrast, allowing an elderly individual who had an ‘inability to get his bearings’ and who had not driven in more than 20 years was something quite different and ultimately, not reasonable. https://bit.ly/2KoWLxQ

 

by Neil Colville-Reeves

The Tale of Red’s Pub – Risk Allocation in Commercial Leases

 

In Youn v 1427062 Alberta Ltd. , the Alberta Court of Queen’s Bench considered risk shifting in the context of a commercial lease.

In this subrogated matter, the appellant landlord owned a commercial property that included the respondent’s pub, Red’s Pub, and neighbouring businesses. A fire broke out in Red’s Pub and the pub was destroyed. The fire caused damage to a neighbouring businesses. The landlord’s insurer commenced a subrogated action against Red’s Pub for the damage.

Red’s Pub successfully brought an application to dismiss the claim. The Master concluded that the landlord was barred from advancing any action against Red’s Pub as the lease, when read as a whole, transferred the risk of loss by fire to the landlord. The landlord appealed the decision of the Master.

On appeal, the Alberta Court of Queen’s Bench reviewed several clauses in the lease and found that the landlord assumed the risk of loss by fire. The lease specified that Red’s Pub was responsible for any increase in the cost of fire insurance caused by its conduct. The court held that this term implied that the landlord intended to carry fire insurance. In addition, the lease required the premises to be kept in good repair, except when there was damage from fire. The lease specifically required that Red’s Pub carry insurance against burglary, glass insurance, public liability, and property damage. There was no specific reference to fire insurance. Finally, it was provided in the lease that if Red’s Pub could not be repaired within 120 days of fire damage, then the lease would terminate.

After reading all of the sections of the lease together, the court held the landlord impliedly agreed to obtain fire insurance for the benefit of Red’s Pub. As a result, the appeal was dismissed.

This decision underscores the importance of completing a detailed review of all leasing documentation in advance of pursuing a subrogated action.

Youn v 1427062 Alberta Ltd.

 

by Neil Colville-Reeves

Municipal Matrix: Distinguishing Policy from Operational Decisions

 

In Binette v. Salmon Arm, the B.C. Court of Appeal had an opportunity to analyze the difference between policy and operational decision making in the context of a municipal liability claim. In Binette, the plaintiff tripped on the base of a broken traffic sign. The City had previously discovered a detached crosswalk sign in a nearby yard and failed to locate the base of the sign. The failure was initially as a result of snow cover and eventually due to the City no longer looking.

Although the City’s sign replacement policy did not require the sign to be replaced immediately the City acknowledged that its standard practice was to use its best efforts to locate and remediate immediate hazards. In this instance, the City inspector had ‘walked the general area and shoveled some areas’ looking for the broken base but being unable to locate the base he stored the broken sign until the snow melted. This was found not to be ‘best efforts’ given that he knew that the base of the sign was an immediate hazard.

This case presents the classic formulation of the test for municipal liability. Governmental authorities are immunized from liability where a loss stems from policy decisions made in good faith. Resources are finite and municipalities must be able to make decisions regarding allocation of resources without being second guessed. To the contrary they are not immunized when a loss arises from the implementation of the policy decision at an operational level. If you are prosecuting or defending municipal claims (whether it is a slip and fall, infrastructure, construction or inspection failure) it is critical to understand the difference between a policy decision (to identify and remedy an immediate hazard) and the implementation of that policy at an operational level (not continuing to look for the immediate hazard until it was found). It is often a nuanced distinction.

Binette v. Salmon Arm

 

by Neil Colville-Reeves

It’s All About Storage

 

Issues relating to storage fees and insurers rights under the Repair and Storage Liens Act were the subject of a recent Court of Appeal decision.

In 2237466 Ontario v. Intact , the insured and insurer agreed that the insured’s vehicle which was damaged in an incident would be cashed out on an ACV basis. The car had been stored and there was a dispute about the amount owing by Intact for the storage. Intact obtained a s. 24 certificate under the RSLA which required the release the vehicle. 2237466 Ontario brought an application to have the certificate declared null and void because Intact had not paid the insured and was not the ‘owner or other person lawfully entitled to the vehicle’, a precondition for the party obtaining the section 24 certificate. The court found that because Intact had assumed liability for the vehicle by agreeing to pay out on an ACV basis they were subrogated to the rights of the insured.

The Court of Appeal noted that the position advanced by 2237466 Ontario would defeat the purpose of the RSLA which provides an expeditious way to address disputes dealing with storage costs. Although the amount in issue was likely modest (the case does not address quantum) the implications of an adverse decision could have been significant to insurers.

Read the decision here: 2237466 Ontario v. Intact

 

by Neil Colville-Reeves

Disclosing Litigation Agreements

 

The Court of Appeal issued reasons on March 29, 2018 detailing the obligations of parties when entering into litigation agreements. The decision in Handley Estate v. DTE Industries is both a reminder and cautionary tale that provides a nice roadmap of things to do and not to do when entering into these kinds of agreements as part of a litigation strategy. The decision is a must read for those involved in litigation where Pierringer, Mary Carter or other litigation agreements are employed.

In Handley, the plaintiff was a subrogating insurer in an oil spill claim. They failed to name one of the oil tank vendors in the supply chain. Because the limitation period had passed by the time it became apparent that the vendor was a necessary party, the plaintiff entered into a funding agreement with one of three defendants which required that defendant to issue a third party claim against the ‘missed’ vendor. In return the plaintiff would fund a finite portion of the cost of the third party action. The agreement was not disclosed to the other defendants. The plaintiff and the same defendant entered into a second agreement several years later which effectively saw the subrogating insurer step into the shoes of that defendant by way of an assignment of that defendant’s rights in the third party action. The existence of the second agreement was subsequently disclosed but not immediately. The plaintiff was eventually compelled to disclose the fact and details of the first agreement as well.

One of the other defendants who was not a party to the agreement brought a motion to stay the action on the basis that the plaintiff had failed to disclose the initial agreement and failed to disclose the subsequent agreement in a timely manner. The Court Of Appeal agreed, noting that agreements which ‘change entirely the landscape of the litigation’ must be disclosed immediately and that a failure to do so amounts to an abuse of process. There are sound policy reasons for this rule. The rules of our litigation process do not provide for trial by ambush or other ‘gotcha’ litigation strategies but rather embrace transparency and full disclosure. Procedural fairness requires that parties adhere to those principles. As the court noted, any agreement that has the effect of ‘changing the adversarial position of the parties set out in their pleadings into a cooperative one’ must be disclosed immediately to the other parties.

If there is any doubt about which side of the line to fall on when faced with disclosing litigation agreements the outcome in this case (which to some might appear Draconian) should make that decision an easy one.

Handley Estate v. DTE Industries

 

by Neil Colville-Reeves

Improperly Accessing Confidential Data Under the Direction of Employer?

 

What do you do at work that is considered ‘under the direction’ of your employer?

The answers to this question are endless. A more interesting question: what do you have to be doing at work not to be ‘acting under the direction’ of your employer? That question is at the heart of the decision in Oliveira v. Aviva , a Court of Appeal decision released this week. The applicant sought coverage and a defence for claims brought against her by a hospital patient for damages as a result of applicant’s alleged accessing the hospital records of a patient who was not under her care. The crux of the case turned on whether the applicant (defendant in the lawsuit) was an insured under the policy issued by Aviva. The policy would provide coverage if the allegations in the underlying Statement of Claim alleged conduct took place while the applicant was acting under the direction of the named insured but only with respect to liability arising from the operations of the named insured.

Because the policy provided coverage for ‘invasion or violation of privacy’, also referred to as the tort of intrusion upon seclusion (which would include accessing records in an unauthorized manner) the court held that the policy was by definition intended to cover offensive conduct that would presumably not be authorized by the insurer. In that case, how can coverage be denied for conduct that on the face of it would appear to be covered?

Acting under the direction of the employer relates not to control how the work is done or actual oversight at the moment of the incident (in this case when records were improperly accessed) but rather flows from the relationship generally and ‘control’ over incidental features of the of the employment such as directing when and where to work and having the right to terminate the employment.

Whether the alleged misconduct arose out of the operations of the named insured was also in issue. The insurer argued that hospitals operations are to provide care and because the employee was not within the patient’s circle of care, her conduct did not fall within the operations of the hospital. The court rejected this argument, noting that the ‘operations’ of the hospital included creating, collecting and maintaining medical records. The underlying claim against the applicant (defendant) for which coverage was sought related to allegations about the unauthorized access to those medical records.

Ultimately however, in reading the decision, the irresistible inference is that the court accepted that because the policy covered ‘intrusion upon seclusion’, it could only be read to cover the alleged misconduct. As a result to deny coverage for the very conduct that the policy was intended to cover would be perverse. It is also consistent with the underlying interpretive imperative of insurance policies – coverage should be interpreted broadly and exclusions should be interpreted narrowly.

 

by Neil Colville-Reeves

Reconciling Inconsistent Policy Documents through Rectification

 

Reconciling Inconsistent Policy Documents through Rectification

The recent Court of Appeal decision in Alguire v. Manulife provides a helpful primer (and reminder) on the law of rectification, an equitable remedy not often invoked in insurance related litigation. This case involved a GRIP life insurance policy issued by Manulife to the plaintiff in 1982. The face amount of the coverage was $5,000,000. The policy required large premiums payable up front and reduced premiums payable over time and included a guaranteed paid up value that would ensure a pre-determined coverage amount that was guaranteed even in the event of a default by the insured in paying premiums. The guaranteed amount was memorialized in a table of non-forfeiture values that would increase over time. The approved quote for the policy agreed to by the parties included the non-forfeiture table that was based on each $5,000 of the face amount of the coverage. However when the policy was issued the non-forfeiture table was presented based on each $1,000 of the face amount of the coverage. The result was that the paid up value was always 5 times greater than what it was supposed to be and eventually exceeded the face value of the policy by a factor of almost 3. At the time of trial, despite a policy with a face value of $5,000,000 the paid up value which was guaranteed was $13,400,000 instead of $2,680,000. The plaintiff sought a ruling that affirmed the higher paid up value.

The plaintiff attempted to justify his position by testifying that he had specifically requested a policy that would provide ‘inflation protection’. He testified that he reviewed the non-forfeiture table with the (now deceased) broker who expressly represented to him that the non-forfeiture value would eventually exceed the face value of the policy.

At trial, the court held that the parties contracted for a policy with a maximum value of $5,000,000 and the inclusion of the non-forfeiture table that showed a higher amount was clearly an error. As a result the court exercised its discretion to rectify the contract so that is accurately reflected the agreement reached between the parties. The Court of Appeal agreed noting that in order to rectify the contract Manulife was required to lead evidence to establish that the parties had reached a ‘prior agreement whose terms are definite and ascertainable’.

The court was satisfied that it had done so. The court ultimately considered the notion that a policy with non-forfeiture values that exceeded the face value of the policy to be nonsensical. In addition the non-forfeiture tables had no inflation related pattern which undermined the plaintiff’s position that he had bargained for inflation protection.

Alguire v. Manulife

 

by Neil Colville-Reeves

LAT Holds Attendant Care is not Payable before the Submission of a Form 1

 

At issue in Applicant and Aviva (2018 Can LII 13190) was whether attendant care was payable for the period of time before the Claimant submitted a Form 1.

The Claimant was injured in a July 1, 2014 accident and sought attendant care expenses in the amount of $1,424.24 per month for the period July 14, 2014 to March 30, 2015. The Claimant Form 1 was not provided to the insurer until October 31, 2014. The Insurer agreed to fund the attendant care for the period after the Form 1 was submitted, but refused to fund the attendant care for the time period before the Form 1 was submitted. Aviva submitted that entitlement arose when it received the Form 1.

The Adjudicator found in favour of Aviva and determined entitlement arose the date the Form 1 was received on the basis of Section 42(5) of the SABS. The Adjudicator noted that the Claimant had opted to provide no submissions refuting Aviva’s position and did not provide any evidence indicating the Form 1 was received earlier. He indicated that incurring attendant care treatment does not automatically entitle an Insured to attendant care benefits. Pursuant to section 19 of the SABS, it is the reasonableness and necessity for attendant care services which entitle an insured to the benefit.

 

by Neil Colville-Reeves

What’s In a Name?

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What’s In a Name?

Plenty. Particularly if you are an insurer attempting to advance a subrogated claim and your insured is in bankruptcy protection proceedings. This was the circumstance faced by the insurer in Douglas v. Ferguson Fuels . What would have otherwise been a garden variety oil spill subrogated action was complicated by ongoing bankruptcy proceedings involving the insureds. By the time the subrogated claim was issued the insured had made an assignment in bankruptcy. By application of s. 71 of the Bankruptcy and Insolvency Act, the insured’s right of action vested in the trustee once an assignment in bankruptcy was made. The subrogated action was commenced in the name of the insured and the court, applying long standing principles of bankruptcy law held that the claim commenced in the name of the insured was a nullity. Had the claim been brought in the name of the Trustee the insurer would have been entitled to proceed.

There were a number of technical issues argued in relation to the law of misnomer (where the court will substitute the correct party for a party improperly identified) and the distinction between the law of subrogation and assignment. Ultimately the court determined that the naming of the insured personally instead of the Trustee could not properly be characterized as a misnomer. The action was ultimately dismissed. Two of the five judge panel dissented on the basis that the insurer should have the opportunity to argue the misnomer issue before the Superior Court motions judge.

The take away: be mindful of the technical consequences of an assignment in bankruptcy as it pertains to advancing subrogated actions. Although the issue more often arises where a target defendant is in a bankruptcy proceeding (which requires that steps be taken by the subrogating insurer in order to proceed) this case demonstrates that advancing a claim on behalf of a bankrupt insured can be a minefield that requires planning and thoughtful advocacy.

Douglas v. Ferguson Fuels

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