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by Kevin Mitchell

Rental 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 Inkpen

Production 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-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 Dan Inkpen

Private 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 Naumis

Garage 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 Inkpen

Threshold 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.

Debruge v. Arnold

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