Our lawyers have worked through the maze of complex litigation and coverage issues, managed the class action juggernaut, and represented employees of insurers that come under attack by plaintiff`s litigation. Some of the problems we face are front page news, most are not. They are all problems that are important to our clients, and to us.
In applying s. 9(3) of the Fault Determination Rules to a chain reaction collision involving three moving vehicles and one stopped vehicle, the Superior Court has adopted the Court of Appeal’s analysis of s. 9(4) in State Farm Mutual Automobile Insurance Company v. Old Republic Insurance Co. of Canada to find that there must be a direct impact between a heavy commercial vehicle and the vehicle whose insurer seeks indemnification for loss transfer to apply. The involvement of a fourth “stopped” vehicle in the incident is of no consequence.
Kingsway General Insurance Company v. Dominion of Canada General Insurance Company dealt with a chain reaction involving four vehicles. The first vehicle, insured by Kingsway, was a heavy commercial vehicle (vehicle “C”) which struck a moving passenger automobile (vehicle “B”). Vehicle “B” subsequently struck a second moving passenger automobile, which was insured by Dominion (vehicle “A”). Vehicle “A” then struck a third passenger automobile (vehicle “Z”), the only vehicle which was stopped at the time of the chain reaction.
Dominion paid statutory accident benefits to its insured, the driver of vehicle “A”. On the basis of the involvement of the stopped fourth vehicle in the collision (vehicle “Z”), Dominion sought loss transfer from Kingsway pursuant to the ordinary rules of tort law under s. 5 of the FDRs. Given that s. 9(3) requires all of the automobiles involved in the incident to be “in motion,” Dominion took the position that s. 9(3) did not apply.
At the arbitration level, Arbitrator Novick agreed with Dominion and found that s. 9(3) did not apply on the basis that the fourth vehicle involved in the chain reaction was stopped at the time of the accident. In the absence of specific wording in s. 9(3), she did not accept Kingsway’s argument that the FDRs were required to be approached in “clusters” or “groupings” of three vehicles. Applying the ordinary rules of tort law pursuant to s. 5 of the FDRs, Arbitrator Novick concluded that vehicle “C” was 100% at fault for the collision and that Kingsway was therefore required to indemnify Dominion for all statutory accident benefits it paid out to the driver of vehicle “A”. She added that, even if s. 9(3) did apply, Kingsway would still be required to indemnify Dominion despite the fact that vehicle “C” did not directly collide with vehicle “A”.
In allowing Kingsway’s appeal, the Superior Court adopted the Court of Appeal’s analysis of s. 9(4) in State Farm v. Old Republic that the degree of fault for each collision between two automobiles involved in the chain reaction must be determined without reference to any related collisions involving either of those two automobiles. The Superior Court concluded that it makes no sense to conclude that vehicle “A” was responsible for the whole chain reaction if vehicle “Z” (the fourth vehicle) was moving when it was struck by vehicle “C,” but find that vehicle “B” bears 50% responsibility for the collision with vehicle “A” instead of vehicle “C” if vehicle “Z” was either stopped or not involved.
In reiterating the Court of Appeal’s finding that ss. 9(3) and 9(4) are “parallel provisions [that]… must be read consistently,” the Superior Court concluded that s. 9(3) should only consider vehicles “A,” “B” and “C” as illustrated in the diagram in the FDRs, and not any additional vehicles which may be involved farther down the chain. Applying the standard of review of correctness to the question of law at issue, given that vehicles “A,” “B” and “C” were all in motion at the time of the accident, the Superior Court ruled that the arbitrator erred by refusing to apply s. 9(3) to the collision. Ultimately, the Superior Court accepted the Court of Appeal’s reasoning in State Farm v. Old Republic to conclude that s. 9(3) is not available to apportion liability between vehicles involved in the same chain reaction that do not directly collide.
This decision serves as a strong reminder that, unlike determining liability in tort matters, the loss transfer regime is meant to be applied in an expedient, economical and summary manner. Despite the presence of a fourth vehicle (or more) in the context of chain reaction collisions, the insurer of vehicle “A” still cannot “leapfrog” over vehicle “B” and claim loss transfer against the insurer of vehicle “C”. The involvement of additional vehicles, whether stopped or in motion, does not change the way in which fault is strictly determined under s. 9(3) of the FDRs.
Can the definition of “owner” under the Dog Owners’ Liability Act include someone who does not have dominion and control over the dog? The Court of Appeal for Ontario says “yes”.
Take a Bite of the Dog Owners’ Liability Act
By way of background, section 2 of the DOLA imposes strict liability upon an “owner” of a dog that bites or attacks another person or domestic animal:
Liability of owner
2. (1) The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal. R.S.O. 1990, c. D.16, s. 2 (1).
Where more than one owner
(2) Where there is more than one owner of a dog, they are jointly and severally liable under this section. R.S.O. 1990, c. D.16, s. 2 (2).
Extent of liability
(3) The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages. R.S.O. 1990, c. D.16, s. 2 (3).
Contribution by person at fault
(4) An owner who is liable to pay damages under this section is entitled to recover contribution and indemnity from any other person in proportion to the degree to which the other person’s fault or negligence caused or contributed to the damages.
Section 1 of the Act defines “owner”:
1. (1) In this Act,
“owner”, when used in relation to a dog, includes a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor; [emphasis added]
Zeus Slips Down the Mountain
In Wilk v. Arbour, Mr. Arbour owned a Great Dane named Zeus. At all material times, Arbour was in a romantic relationship with Ms. Wilk. On December 28, 2013, Wilk offered to take Zeus for a walk and Arbour accepted her offer.
During their walk, Zeus, who was on a leash attached to his collar, suffered a seizure and became unconscious. When he regained consciousness, he backed up, came out of his collar, slipped on ice and fell down an embankment into a ditch. Wilk tried to retrieve Zeus, but also slipped into the ditch. She collided with Zeus and Zeus bit her thumb, causing her to lose her thumb above the joint.
Wilk Bites Arbour
Wilk sued Arbour for her injuries. She claimed he was liable under section 2 the DOLA. She also sued him in negligence.
Arbour brought a summary judgment motion, arguing among other things, that Wilk was an “owner” at the time of the accident and therefore she could not sustain a claim under the Act as an “owner”. Arbour also argued that Wilk’s injuries were not reasonably foreseeable and sought to have her action in negligence dismissed against him as well.
Summary Judgement Motion Barks at Arbour and Wilk
The motions judge found that Wilk was not an “owner” under the DOLA and held that she could maintain those claims against Arbour. He also found that Zeus was not in her “possession”. However, he dismissed her action for negligence, finding that the injury suffered by Wilk was not a reasonably foreseeable consequence of Arbour’s actions.
The end result was that Wilk's action against Arbour under the DOLA could proceed to a trial on the damages issue.
Wilk cross appealed.
Court of Appeal Tosses Arbour a Bone
The DOLA claims turned on whether Wilk was an “owner” of Zeus at the time of the incident. Returning to the definition of “owner” under the Act, the issue turned on whether Wilk was a “person who possesses…the dog”. [emphasis added]
The motions judge held that the word “possesses” under the definition of “owner” means the “exercise of dominion and control similar and in substitution for that which ordinarily would be exerted by its owner (namely the person to whom the dog belongs) over the dog.”
The Court of Appeal disagreed and found that the motions judge went too far by requiring the person in question to have “dominion and control” similar to the owner:
Thus, the weight of Canadian jurisprudence respecting harbouring requires “some degree of control” in the specific situation of providing shelter to a dog; it does not use the phrase “dominion and control” as does the American jurisprudence relating to the keeper of a dog. The word,” dominion” is defined in The Shorter Oxford Dictionary, Thumb Index Edition (1993) as follows: “Sovereign authority” and “control”. Reading in the word, “dominion” in addition to control, in order for a person to possess a dog, as did the motion judge, imports a requirement that the person who physically has the dog has the right to exercise sovereign authority or the highest measure of control over the dog and stands in the shoes of the owner.
Accordingly, the Court held that the word “possesses” in the definition of “owner” under the DOLA includes a person – such as Wilk – who is in physical possession and control over a dog just before it bites or attacks another person or animal.
As an aside, the Court of Appeal also found that the motions judge made a palpable and overriding error when he held that Zeus was not in Wilk’s possession at the time of the incident. The Court held that the critical time to determine possession was the time just before the incident. As Wilk was the person exercising actual control of the dog just prior to the incident, and she was best placed to prevent the bite that occurred, Zeus was in her possession.
Accordingly, Arbour’s appeal was allowed.
Court of Appeal Puts Wilk in the Doghouse
The Court of Appeal held that to establish liability for animals in negligence, special circumstances must exist. The owner of an animal cannot be negligent if the animal acts in an unexpected way and injures someone.
The Court of Appeal agreed with the motions judge that Wilk had failed to prove that Arbour, as Zeus’s owner, could have reasonably foreseen the danger that could result in Wilk’s damages. The Court held that Wilk’s decision to leave the safety of the path, and proceed down the icy slope to retrieve the dog, interrupted the alleged chain of causation and was an intervening act: “Given this voluntary, intervening act, Mr. Arbour’s alleged negligence was not the proximate cause of Ms. Wilk’s injury.”
Accordingly, Wilk’s cross appeal was dismissed.
Following this case, I am now trying to talk my 11-year old out of her aspirations to start a neighbourhood dog-walking business.
The obligation of a Municipality to maintain a sidewalk and the Provincial Minimum Maintenance Standards were at the heart of a recent decision out of the Ontario Superior Court of Justice, Barbeau v. City of Kitchener.
In Barbeau, the plaintiff tripped on uneven adjacent concrete sidewalk slabs. Through unscientific means, the plaintiff argued that the height differential between the two slabs was at least 26mm, more than the acceptable tolerance of 20mm in accordance with the Provincial Minimum Maintenance Standards. Through slightly more scientific means, the City measured the offset between the two horizontal plains of concrete slabs at anywhere between 11 and 19mm.
Significant evidence was led by the Municipality about the operational systems in place to inspect and repair imperfections in sidewalks that posed a danger to public health and safety. The City was able to establish that they expended large sums of money annually to investigate and repair imperfections in the sidewalks under their jurisdiction through a surprisingly thoughtful and comprehensive system.
The court ultimately ruled against the plaintiff on the basis that her unscientific method of measuring the height differential between the horizontal planes of the adjacent sidewalk slabs – specifically by taking a photograph of a 26mm loonie coin placed upright on the lower slab to demonstrate that the height differential was at least 26mm. The defendant, on the other hand, used a carpenter’s square placed on the lower slab at a right angle with the side of the ruler against the rise of the higher slab. The court preferred the Municipality’s methodology of measuring the imperfection and the plaintiff’s claim failed as a result.
The court noted that the Provincial standards in this instance were ‘reasonable’, being in the context of a ‘small residential street’ and noted no comment was being offered on the reasonableness of that standard in other contexts. It is worth noting that in this case, even though there was an imperfection in the sidewalk that was right on the cusp of the tolerance allowed by minimum maintenance standards, the court found no liability on the municipality and suggested that there is an obligation on pedestrians “to pay reasonable attention to see upcoming height differentials on the sidewalk surface”.
Neil is a Partner of Samis+Company. Neil focuses exclusively on insurance-related litigation. He has handled a broad range of matters before the Ontario Superior Court of Justice and the Financial Services Commission of Ontario, as well as advocating on behalf of his clients in private arbitrations.