by Rafeena BacchusCourt’s in Session:
SCJ’s expanded virtual court operations and Corbett J. guidelines for remote hearings as set out in Ontario v. Ontario Association of Midwives, 2020 ONSC.
To protect all court users during the COVID-19 crisis, all but urgent hearings in the Ontario Superior Court of Justice (SCJ) were suspended, effective March 17, 2020. On April 2, Chief Justice Morawetz and all eight Regional Senior Justices issued new Notices to the Profession. Effective April 6, 2020, the SCJ’s virtual court operations have been expanded in each region.
In view of the unprecedented and extraordinary outbreak of the pandemic, while it is essential for courts to adhere to social distancing and be sure that the courtroom premises do not contribute to the spread of COVID-19, it is equally as important that cases are being heard, justice is upheld, and the dockets are flowing.
The implementation of virtual hearings through mediums such as Zoom are necessary measures to ensure the continued functioning of the judicial system and the Constitutional requirement for access to justice.
Therefore, the scope of events that may be heard remotely had been expanded effective April 6, 2020. In his Endorsement of the same date, in Ontario v. Ontario Association of Midwives, 2020 ONSC Justice Corbett orders a hearing held before a three-judge panel on April 21, 22 and 23, 2020, to be conducted as a video conference using Zoom technology.
His Endorsement serves as a general framework for virtual hearings. In it, he orders that neither counsel nor the court are required to gown for the hearing. Business attire is sufficient. All parties are to participate from appropriate surroundings so as to not interrupt or delay the court. The Endorsement sets out the guidelines for the electronic filing of materials. Justice Corbett also holds that the hearing will follow a webinar format and will accommodate up to 500 people, thereby still allowing members of the public to observe the hearing.
While not addressed in Justice Corbett’s Endorsement, we can anticipate that the courts will likely take measures and considerations for those litigants who would not have the means to access the videoconferencing technology. For example, presiding officers of the court may have the ability to limit the entry of individuals into the courtroom in instances of access to justice or may make accessible community facilities equipped with videoconferencing technology. Privacy concerns with online platforms and the determination of the most appropriate platforms for hearings moving forward will also need to be considered and addressed.
Finally, while none of us know how long the crisis will last, video hearings are here to stay. We can expect more and more court procedures, appearances and perhaps trials to be online as part of the new normal in a post-COVID-19 world. With that, we anticipate a lowering of the formalities associated with the court and the profession. For example, we may ditch the heavy gowns, in a similar way that we saw courtroom required wigs go by the wayside after Confederation. We may also see tired processes such as “To Be Spoken to Court” simplified or eradicated altogether through online processes.
Just yesterday, the SCJ tweeted a quote of CJ Morawetz on the impact of COVID-19 on the courts, “…we have been forced and the Ministry has been forced to accelerate its plans to move to electronic hearings and also to electronic filings and we cannot go back…it is time to push forward and we cannot go backwards”. And, onwards we go!
**Please find below three Provincial Notices to the Profession from Chief Justice Morawetz (Civil/Family, Criminal and Divisional). They address a variety of issues including emailing material to the court, service by email, media access to court proceedings and gowning.
Provincial Notice – Civil and Family – Expanded SCJ Operations
by Kevin MitchellRental Car Coverage: Were the words dull and hypothetical?
In the June 5, 2018 Divisional Court ruling in Enterprise Rent-A-Car v. Intact, 2018 ONSC 3517, Enterprise appealed the judgment of Justice Morgan of the Superior Court concerning the hierarchy of coverage provisions of s. 277(1.1) of the Insurance Act applying to the use or operation of a leased vehicle. It reads much like the overlaid simplicity of Tragically Hip lyrics belying their depth.
Arising from a June 29, 2013 accident, the driver of the rental vehicle, also listed upon her father’s policy with Intact, became a defendant in the injured plaintiff’s tort action. Enterprise ultimately contributed to settlement of that action and sought recovery from Intact by way of court application. His Honour dismissed the application finding that s. 277(1.1) did not apply.
On appeal, the Divisional Court decided the standard of review as either correctness or palpable and overriding error. Neither standard was breached presumably, as the panel of three unanimously upheld the finding of the lower court without further comment upon it. The hierarchy of priority of coverage is: lessee (which is defined in subsection (4)), followed by the driver and then the owner of the rental vehicle. Enterprise could only have excess coverage if Intact fell within the first two tiers. The panel confirmed Court of Appeal authority requiring the coverage to be ‘available’ in denying it extended to only a driver listed upon the Intact policy. It was felt clear from Intact’s OAP 1, although the language is a bit tortured, that coverage would extend to a vehicle only when rented by the named insured (the father) or his spouse and driven by either of them. Enterprise argued paramountcy of the statute over the contract of insurance believing there to be a discrepancy in paragraph 2 of the statutory provision. The panel rejected any discrepancy and found the converse was the proper interpretation in that the statute can’t create coverage; it first has to founded under the terms of the policy before the statute is engaged. Since paragraphs 1 and 2 of the statute were not triggered, coverage fell to Enterprise’s insurer considering Enterprise as owner of the vehicle. Costs were fixed and payable to Intact.
Know your coverage. Don’t let the constellations reveal themselves one star at a time when you drive back to town this morning.
by Dan InkpenProduction of Transcripts From Prior Actions
In the Superior Court matter of Cormack-Terrelonge v. Fahmy Estate , the plaintiff was involved in a motor vehicle accident. At examinations for discovery, the plaintiff testified that she had been involved in three motor vehicle accidents prior to the subject accident. The plaintiff testified that she had sustained injuries in all three preceding accidents and had commenced litigation in relation to each accident.
The defendant requested the transcripts from the prior examinations for discovery. However, the plaintiff refused the request. The defendant argued that the transcripts were necessary to assess the extent to which the plaintiff’s current complaints overlap with her injury complaints prior to the subject accident. It was noted that there was no credible evidence to suggest that the injuries sustained in the prior accidents had resolved before the subject accident.
Justice Sosna agreed that although the prior transcripts were captured by the deemed undertaking rule set out at Rule 30.1.01(3), the exception to the undertaking rule applied in this case as the interest of justice outweighed any prejudice that would result to a party who disclosed the evidence. Justice Sosna concluded that the production of relevant and necessary documents was required to ensure that the case was ultimately and fairly adjudicated at trial.
https://www.canlii.org/en/on/onsc/doc/2018/2018onsc3925/2018onsc3925.html?platform=hootsuite
by Neil Colville-ReevesIt’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 Dan InkpenPrivate Facebook Pictures Ordered to be ProducedPrivate Facebook Pictures Ordered to be Produced
In the matter of Papamichalopoulos v. Greenwood 2018 ONSC, the defendant brought a motion seeking the production of the plaintiff’s private Facebook pictures. The plaintiff had alleged in his Statement of Claim that he had suffered permanent injuries in the accident. The plaintiff had also alleged that his ability to participate in all activities had been impaired.
Master Abrams noted that the plaintiff had posted pictures on his public Facebook account, post-accident, which depicted him engaging in physical activities without any visible signs of discomfort. The pictures posted included pictures of the plaintiff jet-skiing, bending over at pronounced angles while lifting his wife, driving, and lifting his young son. Master Abrams indicated that these pictures are relevant and open up inquiry as to the severity of the injuries sustained by the plaintiff. Master Abrams cited Justice D. M. Brown’s reasoning in Leduc v. Roman 2009 ONSC. Justice D. M. Brown indicated that it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile.
by Jamie NaumisGarage Owner Not Liable for Brain Injury Suffered by Teenage Car Thief
Two teenagers, C.C. and J.J., who had been drinking and smoking marijuana decided to go out after midnight to steal valuables from unlocked cars. They ended up at the defendant’s unsecured garage and found an unlocked car with keys in the ashtray. C.C. and J.J. decided to steal the car and go for a joyride on the highway where the car crashed. J.J. suffered a catastrophic brain injury.
The central issue before the court was whether a commercial garage owner owed a duty of care to J.J., a minor who was injured while joyriding in a vehicle he helped steal from the defendant’s premises.
In a 7-2 ruling, the Supreme Court of Canada (S.C.C.) said ‘no’, overruling the Court of Appeal’s decision that a novel duty of care should be recognized in such circumstances.
The Court of Appeal, in its application of the Anns-Cooper test for establishing a novel duty of care, had held: (i) that it was foreseeable that minors might take a car from the defendant’s garage that was made easily available to them and may consequently injure themselves, and (ii) that there was sufficient proximity between the defendant and J.J because the defendant should have had minors like J.J. in mind when he considered security measures at his garage.
However, Justice Karakatsanis, speaking for the majority of the S.C.C., held that the foreseeability stage of the Anns-Cooper test had not been met, and declined to find a new duty of care in the circumstances. She concluded that while the risk of theft was a reasonably foreseeable consequence of leaving a garage and car on its premises unsecured, it was not reasonably foreseeable that the stolen vehicle would be operated in an unsafe manner, causing injury.
The S.C.C. ruling affirms that a duty of care requires that the risk of harm be reasonably foreseeable and not a mere possibility.
Notably, Justice Russel Brown (supported by Justice Clement Gascon) dissented, finding that there was sufficient evidence in the case to substantiate that physical injury to the plaintiff was a reasonably foreseeable consequence of the defendant’s negligence in failing to secure the stolen car. Justice Brown also added that this case did not require the full application of the Anns-Cooper test to establish a novel duty of care because “it involves the unremarkable application of a category of relationships that has long been recognized as imposing a duty of care — namely, “where the defendant’s act foreseeably causes physical harm to the plaintiff.”
Finally, although Justice Karakatsanis did not find it necessary to consider whether illegal conduct could sever the proximate relationship between the parties or negate a prima facie duty of care, she did comment that the Court has consistently rejected such notion.
It will be interesting to see what impact this decision has in tort law, and whether its effect will be to raise the generally low threshold of the objective reasonable foreseeability inquiry of the Anns-Cooper test.
Rankin (Rankin’s Garage & Sales) v. J.J.
by Dan InkpenThreshold Motion Decision and Jury’s Verdict
In Debruge v. Arnold , the plaintiff appealed the decision of the trial judge on the defendant’s threshold motion. One of the grounds of appeal was whether the trial judge erred by granting the defendant’s threshold motion after receiving a jury verdict which implicitly concluded that the plaintiff’s injuries and claims exceeded the threshold. This appeal was dismissed on the basis that a jury’s verdict is only one factor that the trial judge may consider, but is not bound to consider, in coming to his or her ultimate conclusion regarding the threshold motion.
The defendant brought a cross-appeal on the issue of whether the trial judge erred by excluding the decision on the threshold motion from the costs analysis. The cross-appeal was granted, based on the reasoning of the Divisional Court in Saleh v. Nebel, in which the decision on the threshold motion should be taken into account when considering the issue of costs of the trial.
by Neil Colville-ReevesMunicipal 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.
by Neil Colville-ReevesIt’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-ReevesDisclosing 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-ReevesCourt of Appeal finds $225,000 General Damages Award to be Reasonable
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]In Dunk v. Kremer, the 18 year old Plaintiff (Respondent at Appeal) was injured in a motor vehicle accident and suffered a tibia fracture and right talus bone fracture requiring surgery. At trial, the jury awarded damages for future loss of income and cost of medical care, as well as $225,000.00 in general damages. The Defendant (Appellant at Appeal) appealed, among other things, the amount of the general damages award.
Ultimately, the Court of Appeal dismissed the Appeal, noting that the matter was in the trial judge’s discretion and the general damages award was not so inordinately high as to call for appellant intervention. The Court noted the Plaintiff’s young age at the time of the accident, the years of pain she had suffered, the impact of the accident on her day-to-day activities and future plans, as well as that her accident-related injuries were going to cause her significant and serious long-term pain and impairment.
This case also addresses expert reports under Rule 53. Briefly, the Defendant did not indicate they would be calling their expert and provided an unsigned copy of the expert’s report. After hearing the evidence of the Plaintiff’s expert, the Defendant moved for an order permitting it to call their expert. The trial judge ruled that the expert could be called, but that he would be restricted to the four corners of his report and would not be permitted to comment on developments that had arisen after he had prepared his report. This prevented the Defendant expert from commenting on the likelihood that the Plaintiff would develop arthritis in the future that would leave her “quite disabled”. The Defendant appealed on the basis that the ruling prevented their expert from commenting on the oral evidence of the Plaintiff’s expert. Ultimately, the Court dismissed this aspect of the appeal and highlighted that the situation was largely the fault of the Defendant.
[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]by Dan Inkpen“Mandatory” Mediation under Section 258.6(1) of the Insurance Act
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]A new motion decision of Justice Firestone could have wide ranging ramifications in terms of the timing of when mediations are typically scheduled.
In Thomson v. Portelance et al., in an effort to be in a position to set their action down for trial early, the Plaintiffs sought to schedule a mediation, pursuant to s. 258.6(1) of the Insurance Act, prior to completion of discoveries. The Defendants resisted this request.
Section 258.6(1) of the Act is a “lesser known” provision providing for mandatory mediation in automobile cases, which states as follows: A person making a claim for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile and an insurer that is defending an action in respect to the claim on behalf of an insured or that receives a notice under clause 258.3(1)(b) in respect of the claim shall, on the request of either of them, participate in the mediation of the claim in accordance with the procedures prescribed by the regulations.
Justice Firestone held that, once a party requests that a mediation be scheduled under s. 258.6(1), the other party cannot delay the scheduling of the mediation until the completion of a specific event in the litigation process, such as discoveries. Once the Plaintiffs requested the scheduling of the mediation, the Defendants had a positive obligation to appoint, schedule, and conduct such mediation within the timeframes and procedures set forth in s. 258.6(1) of the Act and s. 3 of O. Reg. 461/96.
How successful a “pre-discovery” mediation might be, in the likely absence of a lot of information that normally becomes available through the discovery process is, of course, an entirely different issue not addressed by this decision.
[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]by Neil Colville-ReevesAdmissibility of Surveillance Evidence at Trial
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]In Rolley v. MacDonell , the defendant brought a motion for leave to rely on surveillance video recordings as substantive evidence. Three rounds of surveillance were carried out over a period of one year.
For a surveillance video recording to be admissible as substantive evidence, it must satisfy the following three-part test:
- Accuracy in truly representing the facts;
- Fairness and the absence of any intention to mislead; and
- Verification on oath by a person capable of doing so.
(See Iannarella v. Corbett , 2015 ONCA 110, 331 O.A.C. 21, at para. 94 and Nemchin v. Green , 2017 ONSC 1321, at para. 16.)
In addition, the probative value of the evidence must outweigh its prejudicial effect.
The parties disagreed over whether the surveillance videos satisfied at the admissibility test.
With regard to the first part of the test, the judge found that there were various gaps in the surveillance video recordings that were frequent and significant. The recordings depicted anywhere from 15 to 27 to 50 percent of the time during which the plaintiff was engaged in an activity. As a result,they could not be considered fair, accurate, and representative of the events purported to be depicted in the recordings
In assessing the second prong of the test, the judge found that the investigator was forthright in his answers. The investigator was empathetic that it was not his intention to cast the subject in a light favourable to the client that was paying for the surveillance. He also emphasized the practicalities of carrying out surveillance, including the requirement to move about to be able to continue recording a subject. The judge concluded that the investigator did not have an intention to mislead. However, with respect to the second element of fairness, the judge did not find the video recordings to be fair.
For the third part of the test, the judge found that the investigator provided verification under oath of the surveillance conducted. Given that the surveillance evidence did not satisfy the first two parts of the test, the judge did not address the third issue in detail.
The judge did find that two of the videos satisfied the three-part test for admissibility, and considered the probative value versus the prejudicial effect of these recordings. With respect to both, he found that they depicted nothing that challenged, contradicted or impugned the evidence given by the plaintiff’s wife. He, therefore, concluded that both the videos had a minimal probative value.
The judge emphasized that a trial judge must be stringent in his or her gatekeeper role when dealing with surveillance evidence. The judge dismissed the defendant’s motion and denied any entitlement to rely on any portion of the surveillance video recordings as substantive evidence.
The decision suggests that careful consideration be given to the quality of the surveillance video recordings when deciding whether to attempt to rely on the recordings as substantive evidence at trial.
[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]by Neil Colville-ReevesDouble Counting to Capture a Whole Person Impairment
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]In Security National Insurance Co. v. Allen, Justice Fragomeni of the Divisional Court upheld the decision of Director Delegate Blackman’s , finding that when an organic brain injury and a psychological disorder separately result in emotional or behavioural impairments, they are both to be rated and then combined for the purpose of determining a WPI rating.
At arbitration, the issue was whether the claimant had sustained a 55% Whole Person Impairment (WPI) pursuant to the SABS. The Arbitrator concluded the claimant had a 52% WPI rating and therefore was not catastrophically impaired. In reaching this conclusion the Arbitrator did not provide a a Chapter 4 rating, finding that the Chapter 14 rating captured any mental and behavioral impairment. On appeal by the insured, Director’s Delegate Blackman rejected the insurers argument that rating under both Chapter 4 and Chapter 14 was double counting and remitted the questions of the insured’s rating for brain injury under Chapter 4 and the medication rating back to arbitrator for determination. He confirmed the Arbitrator’s other WPI ratings. With respect to brain injury and double counting, Director’s Delegate Blackman relied upon clause 2(1.2)(f) of the Schedule, which speaks of “an impairment or combination of impairments” – not “symptoms” as was used by the Arbitrator. Director’s Delegate Blackman decided that it was incumbent upon the Arbitrator to provide separate ratings under both Table 2 and Table 3 of Chapter 4 when one rating related to a Chapter 14 impairment. The more severe of the two would represent the appropriate level of cerebral impairment. This number would then be combined with the other impairment ratings using the Combined Values Chart.
On Judicial Review, the Divisional Court applied the standard of review of reasonableness to Director’s Delegate Blackman’s decision given it was made in the context of a specialized regime and one in which the Director’s Delegate has expertise.
The Court concluded that his decision was reasonable with regard to all three issues.
The Court also held that Director’s Delegate Blackman reasonably applied the two general principles that the Guides should be given a broad and liberal interpretation andhat whether a person has sustained a catastrophic impairment is an adjudicative and not a medical determination.
This case provides some further clarification on the issue of “double counting” in the context of WPI ratings. .
See Security National Insurance Co. v. Allen, 2017 ONSC 6779
[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]by Neil Colville-ReevesStandard of Care in the Context of Contractual Duties and Industry Practices
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]In Mabe Canada Inc. v. United Floor Ltd., the Ontario Court of Appeal weighed in on the standard of care in the context of contractual duties and industry practices.
Mabe sustained damages when a drainage pipe that ran underneath a floor installed by United Floor caused a flood in Mabe’s warehouse. United Floor was hired by First Gulf to build the warehouse in 2004. First Gulf is not a party to the action. The flood was caused by two holes in the drainage pipe that ran below the concrete floor.
At trial, Mabe’s alleged that the holes were caused by United Floor when installing the floor. None of the building drawings showed a drainage pipe in the location where the damaged pipe was found. In addition, the pipe was installed much shallower than it ought to have been under industry standards.
The trial judge dismissed Mabe’s claim in negligence. The trial judge found that United Floor damaged the drainage pipe by puncturing it with a stake it used to brace its concrete floor. However, United Floor should not have anticipated that it was as shallow as it was. There was no reason for United Floor to be concerned that there would be a shallow pipe in the location where the damaged pipe was found. United Floor did not breach the standard of care.
Mabe submitted to the Court of Appeal that the trial judge failed to take into account the United Floor’s contractual duties in determining the standard of care; erred in his foreseeability analysis; and erred in failing to determine whether relevant industry practice was itself negligent and should not have been followed.
The Court of Appeal held that, although contractual duties may, in some circumstances, modify the standard of care that would otherwise apply, the trial judge’s findings precluded such a finding in this case. The contract required United Floor to notify First Gulf in writing if the subsurface conditions differed significantly from those specified in the contract. The trial judge found that United Floor should have been aware that a pipe ran underneath the floor, but he accepted expert evidence that the United Floor had no reason to foresee that the pipe would be at a shallow depth. As a result, the respondent’s duty to notify First Gulf under the contract did not arise.
The trial judge was held not to have erred in his foreseeability analysis. He accepted expert evidence offered by United Floor that there was no reason not to put a stake in the ground at the subject location. It was the plumber’s responsibility to alert First Gulf to the shallow depth of the pipe and First Gulf’s responsibility to notify United Floor. First Gulf failed to do so.
It was accepted by the Trial Judge that a flooring contractor would not have expected to have a pipe running through the subfloor at the position it was in. United Floor’s expert testified that drainage pipes would normally be set two to three feet into the subfloor, well below the reach of the 18 inch stakes used by United Floor. The trial judge rejected the Mabe’s expert evidence and found that there were no other factors that should have alerted United Floor to the possibility of puncturing a pipe.
The Court of Appeal held that, although it is clear that conformity with standard practice in an industry does not necessarily insulate a defendant from a finding of negligence, as the Supreme Court explained in Neuzen v. Korn, [1995], a practice will be judged negligent “only where the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession” – only where it is “fraught with danger”. Mabe’s expert provided the only evidence supporting the submission that industry practice was negligent in this case. But it was rejected by the trial judge, who preferred the evidence of United Floor’s experts in concluding that the United Floor had no obligation to do more than it did to determine the location of the drainage pipe. There was no basis for the Court of Appeal to interfere with the trial judge’s decision concerning the expert evidence and the weight to be attached to it.
See Mabe Canada Inc. v. United Floor Ltd. , 2017 ONCA 879 (CanLII)
[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]by Neil Colville-ReevesLAT Makes Insurer Pay for Non-Compliant Notice
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]On reconsideration of a decision at the License Appeal Tribunal (LAT), Executive Chair Linda Lamoureux has confirmed that an insurer’s deficient notice under Section 38 of the SABS will have strict consequences.
The decision, M.F.Z. v Aviva Insurance Canada, dealt with two claims, which the insurer treated within the Minor Injury Guideline (MIG). When denying a claimant’s application for medical and rehabilitation benefits, Section 38 requires that the insurer’s correspondence include specific information. The LAT has generally followed the FSCO decision of Augustin v. Unifund (2013) when determining the proper content of a Section 38 notice. If the insurer’s denial correspondence fails to satisfy the Section 38 notice requirements, subsection (11) provides for two consequences:
- The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
- The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
The M.F.Z. reconsideration request raised two distinct legal issues in circumstances where an insurer’s notice fails to comply with Section 38. First, Aviva challenged the finding that the insurer is forever precluded from relying on the MIG after one deficient notice letter. Second, Aviva argued that the disputed OCF-18, for which an improper denial notice was given, should not be automatically payable without consideration as to whether it was reasonable and necessary.
E.C. Lamoureux held that the SABS completely bars an insurer from ever taking the position that the MIG applies following a deficient Section 38 notice. Where deficient notice has been given, E.C. Lamoureux also held that there ought to be no consideration as to whether the disputed OCF-18 was “reasonable and necessary”.
With regards to one of the disputed OCF-18s, E.C. Lamoureux found that the claimant was automatically entitled to the treatment incurred during the period of deficient notice. Although the initial denial was deficient, Aviva’s subsequent letter serving the Section 44 report was proper notice which “cured” the defect. Section 38(11)2 only provides for “automatic” entitlement up to the date the insurer provides proper notice. There was no discussion as to how benefits incurred after the defect is cured are to be treated.
The M.F.Z. decision is being further appealed to the Divisional Court. For the time being, insurers should be aware that the LAT will be strictly applying the consequences outlined in Section 38(11)2. Insurers should always take care when drafting denial letters to ensure compliance with Section 38. However, subsequent correspondence (e.g. a letter providing a copy of the Section 44 report) should also be carefully drafted to fully explain the insurer’s decision. Such letters which arise in the ordinary course of handling may go a long way to minimize the damage flowing from “automatic” entitlement.
See M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT), http://canlii.ca/t/h6cfv
[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]by Neil Colville-ReevesCourt of Appeal addresses limitation periods in LTD claims, again
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]In the recent decision of Pepper v. Sanmina-Sci Systems (Canada Inc)., the Ontario Court of Appeal dismissed a plaintiff’s long term disability claim as limitation barred, reversing the summary judgment motion judge’s decision. The Court found that the limitations clock began to run once payment of benefits ceased.
The facts of the initial motion were largely uncontested. The plaintiff was receiving long term benefits due to an injury on March 13, 2005. On February 20, 2007 the Insurer advised the plaintiff that effective September 19, 2007, he would no longer qualify for long term disability benefits. The Insurer advised there was no evidence that he had an impairment that prevented him from engaging in “any occupation” that he was reasonably suitable for by training, education, or experience. In good faith, the Insurer agreed to pay benefits until October 31, 2007 to assist the plaintiff with the transition back to work. The Insurer also advised the plaintiff that he could “appeal” the decision by providing more medical documentation. Of importance, the long term disability policy did not contain a specific mechanism or right to appeal. There was also no statutory right to appeal.
The benefits stopped effective November 1, 2007. The plaintiff commenced a claim on February 17, 2010.
The Insurer brought a summary judgment motion to have the plaintiff’s claim dismissed as limitation barred. The plaintiff brought a cross motion for a declaration that he was not limitation barred and to dismiss the Insurer’s limitation defence. The plaintiff’s cross-motion was granted. The Insurer appealed.
On appeal the Insurer was successful. The Court found it was an error in law to not recognize that November 1, 2007 was the date on which the limitation period commenced. Despite the Insurer’s representations that it would continue to review additional documentation if provided, the plaintiff’s claim had been discovered as of November 1, 2007 when the payments stopped. The Court found that once payments had ceased and the Insurer had “closed” the claim, it would have been appropriate to commence an action and accordingly it was “discovered”. The fact that there was no internal appeal process specifically included in the Policy appears to have factored into this. The Court also noted that the plaintiff had retained counsel in January, 2008, suggesting that he did have an appreciation that a lawsuit was appropriate.
As a result, the plaintiff’s claim was dismissed as statute-barred. This decision seems to support my previous comments regarding the efficacy summary judgment motions in long term disability claims, as discussed in blog posts here and here . It appears that in the long term disability setting, barring something exceptional, once an Insurer stops payment and advises that a claim is closed, the clock starts to run.
See Pepper v. Sanmina-Sci Systems (Canada) Inc. , 2017 ONCA 730 (CanLII).
[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]by Dan InkpenAppealing a License Appeal Tribunal Decision May Be Made On a Question of Law Only
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]In Melo v. Northbridge Personal Insurance Corporation, Justice Croll, writing for The Divisional Court, confirmed that pursuant to s. 11(6) of the License Appeal Tribunal Act, an appeal from a decision of the Tribunal relating to a matter under the Insurance Act, R.S.O. 1990, c. I.8 may be made on a question of law only. Justice Croll further indicated that the standard of review to be applied is reasonableness.
The Appellant was involved in a motor vehicle accident on August 28, 2015. He applied for statutory accident benefits from his own insurance company, Northbridge Personal Insurance Corporation. The Adjudicator found that the Appellant was not entitled to income replacement benefits in the amount of $389.11 per week from January 28, 2016 to the date of his decision.
Justice Croll indicated that the Adjudicator cited the correct legal test to prove entitlement to an income replacement benefit, and correctly identified and conducted the comparative exercise that section 5(1) of the Schedule requires. The Adjudicator weighed the evidence, applied the proper stand of proof, and provided reasons for his findings, which were all ground in the material before him. Justice Croll indicated that the Adjudicator’s exercise of weighing the evidence and preferring some evidence over other evidence does not amount to a question of law only. Justice Croll stated that the Appellant failed to establish an error of law and that the Adjudicator’s decision was reasonable as it was within the range of possible outcomes.
See : Melo v. Northbridge Personal Insurance Corporation , 2017 ONSC 5885 (CanLII)
[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]by Neil Colville-ReevesBut For… Everyone Else (Not Me!)
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]In Sacks v. Ross, the Ontario Court of Appeal dealt with how to apply the causation test in medical negligence cases involving multiple tortfeasors.
Sacks suffered serious injuries arising from complications after a routine bowel surgery. An anastomotic leak occurred after surgery, which spilled into his abdominal cavity, but the discovery of the leak was delayed, and by the time treatment started, he was in septic shock. Ultimately, he was in a coma for several weeks and his legs were both amputated.
At trial, Sacks put forth that the delay and treatment caused his injuries, which were the result of cumulative errors made by the respondents, a team of doctors, nurses and Sunnybrook Hospital, who treated him after his bowel surgery. The respondents argued that the delay in diagnosis did not cause Sacks’ injuries – his injuries were actually caused by flesh eating disease, which could not have been diagnosed or treated when it first arose.
At trial, the jury found five of the defendants breached their respective standards of care, but none of the breaches caused the injuries. Sacks appealed, arguing that the trial proceeded on a mistaken understanding of the appropriate causation test, evidenced by improper jury questions and instructions. Sacks argued that in cases involving multiple tortfeasors, a “global but for” test for causation should apply.
Ultimately, the Ontario Court of Appeal dismissed the appeal. The Court followed the prior Clements decision, where the Supreme Court found that the “but for” test also applies in complex, multiple tortfeasor, negligence cases.
The Sacks decision is significant for the Court’s discussion of the causation test and how it should be applied in complex negligence cases. The Court reminded that the normal causal reasoning process follows three steps:
Step one: what likely happened in actuality – whether the delay in treatment led to the plaintiff’s injury?
Step two: what would have happened if the defendant had not breached their standard of care?
Step three: allocate fault amount the negligent defendants
The analysis requires the jury to analyze each event in the sequence of events, while ignoring any decision it might have made with respect to an earlier event.
To reflect the causal reasoning process, the court recommended framing the jury questions as follows:
- Have the Plaintiffs proven, on a balance of probabilities, that a delay in treatment caused Sack’s injuries?
- If yes to #1, have the Plaintiffs proven, on a balance of probabilities, that the delay resulting from [this defendant’s] breach of the standard of care caused or contributed to the injuries of Sacks?
- If yes to #2, how did [this defendant] breach the standard of care?
Importantly, question #1 only asks the trier of fact to consider what the plaintiff needed by way of timely diagnosis and treatment in order to avoid injury, without considering the presence or absence of any breaches of the standard of care. In contract, question #2 determines fault.
See Sacks v. Ross , 2017 ONCA 773 (CanLII)
[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]by Neil Colville-ReevesWho Dunnit? Use the “But For” Test!
[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]In the FSCO Appeal Decision of State Farm and Sabadash (P16-00029), Director’s Delegate Evans conducts a thorough analysis of the key jurisprudence on causation in Canada of the key causation decisions: Athey v. Leonati (1996 S.C.C.), Resurfice Corp v. Hanke (2007 S.C.C.)., Clements v. Clements (2012 S.C.C.) and Monks v. ING Insurance Co. (2008 Ont. C.A.) and confirms that the “but for” test is the primary causation test for SABS litigation.
Delegate Evans set out that the “material contribution to risk” test could still be applied but only once the claimant passed the “but for” test, such that there can be no fallback to use the “material contribution” test if the claimant fails the “but for” test. As a result, the “material contribution” test only becomes relevant in the rare circumstances where an accident alone and a pre-existing condition alone could have directly caused an impairment. Similarly, the de minimis test may only play a role after the “but for” test has been answered in the affirmative.
While this decision provides some much needed clarity for decisions where causation is in dispute, it may not be the final word on the subject since the claimant in Agyapong v. Jevco has filed for Judicial Review.
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