OOPS. SORRY. I THOUGHT HE HAD A DRIVER’S LICENSE

By Forough Ghorbani

May2

How cautious does someone have to be when allowing a friend or employee borrow their car? Do you need to ask to see their driver’s license and check the expiry date to ensure that your insurance policy will cover you for any potential accidents? The recent case Wawanesa v. S.C. Construction Ltd.¹ demonstrates that the Courts require insureds to act reasonably in the circumstances. What is “reasonable” will depend on the circumstances. This case provides some comfort to insureds who don’t police their friends and employees before lending their vehicle, as many of us have done in the past.

The respondent, S.C. Construction (“SC”), is a small family-owned carpentry business. Their employee, Jason, had worked for the company for approximately 10 years. On May 4, 2008, one of the owners of SC, Giuseppe, allowed Jason to drive the company van home after work because Jason’s car was not working. Over the previous 10 years, Jason had been permitted to drive the company van home on 4 or 5 occasions, only when Jason’s car was not working or was being repaired.

On that May night, Jason was involved in a motor vehicle accident while driving the company van home. The other individual involved in the accident was injured and sued Jason as the driver and SC as the registered owner of the vehicle (on the basis that SC is vicariously liable for Jason’s negligence, because SC consented to Jason’s use of the vehicle).

It turned out that Jason did not have a valid driver’s license.

Permitting a person to drive your vehicle when they are not authorized by law to do so (e.g. when they do not have a valid driver’s license) is a breach of Statutory Condition 4(1) of your automobile insurance policy.

Wawanesa, the insurer for SC, sought a declaration from the Court that SC breached Statutory Condition 4(1) by allowing Jason to drive the company van without a valid driver’s license and for not notifying Wawanesa of a material change in risk.

The test for determining whether an insured has breached Statutory Condition 4(1) is whether she acted reasonably in all the circumstances. Unless the insured knew or ought to have known that the driver didn’t have a valid driver’s license or unless in the circumstances she should have asked to see the actual license, she will not be found in breach of the Condition. This is a question of fact.

Where an employee is hired as a driver it is obvious that the employer should ask to see the employee’s driver’s license. In this case, Jason was hired as a labourer; he was never permitted to drive the company van during work hours and was not required to do so. Further, he was seen to be driving his own vehicle to work and home for nearly ten years, at times with his family in the car. In all these circumstances the Court found that SC and Giuseppe acted reasonably in not asking to see Jason’s driver’s license before lending him the company van. Wawanesa was required to defend the action.

This case illustrates that insureds will not be held to an unreasonable standard and will not be denied coverage on the basis of technicalities when they acted reasonably in the circumstances. However, in order to avoid a coverage dispute such as this one, it would still be best to ensure that your friend or employee is legally permitted to drive before lending them your vehicle.

 

¹  2012 ONSC 353.

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TAKE ME OUT TO THE BALL GAME

By Ian Mair

May2

Seems everyone’s talking baseball. The team’s off to a good start. Could this be the year? Does the team need another big bat in the middle of the order? Does the team have enough pitching?

Even lawyers are talking baseball. Thing is, some lawyers can’t help looking at baseball a little differently. When a lawyer watches a foul ball, or eyes the kid next to him eating a big chilli cheese dog, or sees the loud drunk in the next section get his second warning, that lawyer’s probably thinking “Uh oh … Lawsuit?” That’s understandable though. You see: The grand old game has been the source of some interesting litigation. I thought it would be fun to tell you about some of it.

TAKE ME OUT WITH THE CROWD

In Newman v. Toronto Blue Jays Baseball Ltd., the Toronto Blue Jays were sued in connection with an injury suffered by a spectator who was struck by a foul ball. On October 5, 1985, 10-year-old Jesse Newman was at a Blue Jays game at Exhibition Stadium. During the 5th inning, a player drove a line drive foul ball into the stands. Jesse’s father ducked as the ball came toward them. But Jesse was eating peanuts and was not paying attention to the ball. The ball hit Jesse near the right eye and Jesse sustained an eye injury. There was swelling around the eye and a laceration over the nasal bridge on his nose. He was treated for a small traumatic cataract. There was a small rupture of the iris of the right eye, but this did not cause a cosmetic or visual complication. He had to wear an eye patch and his vision improved gradually over the next few weeks.

Damages were assessed at $25,000. But Jesse’s action was dismissed on the basis that the Blue Jays had met the required standard of care. The court held that the Blue Jays were not required to protect everyone in the ballpark from the possibility of foul balls. A protected area was provided directly behind home plate where Jesse would have been protected from the risk of foul balls. Alternatively, Jesse could have sat in the bleachers, where he would have been protected from a foul ball. The court held that the Blue Jays had provided protection in accordance with an acceptable standard, based on the norm in the industry. They were not required to screen every section in the stadium.

BUY ME SOME PEANUTS AND CRACKER JACK

We couldn’t find any cases about the food at a baseball game in Canada. That’s a good thing. But food contamination is a potential issue whenever large groups of people are served food. The consequences can be serious. Take, for example, a class action brought by Nicky Troulos against Tiffany Gates Food Corporation in 2008. Class members sought damages for food poisoning suffered when the purchasers of contaminated salads became ill. The people in the class became ill with shigella sonnei bacteria after consuming Greek-style pasta salad manufactured by the defendants. The affected individuals were assessed damages based on the number of days that they had been ill. The amounts awarded for damages ranged from $1,000 for persons who had been ill for one to three days, to $8,000 for persons who had been ill for in excess of 22 days. In total, approximately $2.3 million was awarded to be divided among 564 class members in the Ottawa and Toronto areas where the salads had been sold.

I DON’T CARE IF I NEVER GET BACK

In the case of Davidson v. Toronto Blue Jays Baseball Ltd., the plaintiff refused to show his ticket to an employee of the stadium at a baseball game. After a dispute with an usher, the plaintiff was arrested by three off-duty police officers. The plaintiff brought an action for damages for false arrest. The court held that the arrest was unlawful because there were no reasonable and probable grounds for the arrest. The jury found that the plaintiff had been humiliated, embarrassed, intimidated, harassed and subjected to unnecessary pain and suffering at the bottom of the exit stairs where he was forced to the ground and held. The jury awarded the plaintiff punitive damages in the amount of $125,000.

LET ME ROOT, ROOT, ROOT FOR THE HOME TEAM

Grace Crass of Wernersville, Pennsylvania was a 75-year-old woman who claimed she was injured in the stands at a baseball game while watching a 2008 Reading Phillies minor league game. She claimed her legs were injured by the Phillies mascot, the Phillies Phanatic. She claimed the massive green bird / anteater climbed through the stands and onto her legs. She alleged the incident set off the arthritic process in her knees which ultimately required her to have two knee replacements. Apparently, the Phillies Phanatic is no stranger to litigation. He had been sued prior to this case. One such incident involved an alleged injury when the large green creature hugged a fan in an overly aggressive manner.

IF THEY DON’T WIN, ITS A SHAME

For it’s one, two, three strikes, you’re out / At the old ball game.

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THE PLAY’S THE THING

By Bronwyn Martin

May2

Have you ever wondered if lawyers can be entertaining? Have you ever wanted to see a group of 30 lawyers break into dance? Now is your chance!

For the past three years the Nightwood Theatre has put on a Shakespearean comedy that is performed by members of the legal community. This has become an important annual fundraiser for the Toronto-based theatre company, with the proceeds of the play going towards enhancing Nightwood’s productions and training programs.

This year’s play is Much Ado About Nothing, a comedy full of love, razor sharp wit, devious villains, witless watchmen and the ultimate battle of the sexes.

MMW is a proud sponsor of this year’s show, and Bronwyn Martin will be participating as one of the chorus members of the show which will be performed from June 7 to June 9.

For more information about the show, and about Nightwood, please visit: nightwoodtheatre.net/index.php/lawyer_show/lawyer_show_2012

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YOU CAN’T BRING TEETH TO A FIST FIGHT

By Michael Kealy

Apr5

Michael Kealy’s recent trial win for a client who had part of his lips bitten off by the defendant has been reported in The Lawyers Weekly. Check out the story here, or learn more about the law of intentional torts and the related defences in the Trial Decision.

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CHANGING HORSES MIDSTREAM

By Forough Ghorbani

Mar8

Gordyukova v. Certas Direct Insurance Company, 2011 ONSC 6535

This recent Divisional Court decision provides that issues within accident benefits claims can be continued within the context of an arbitration or a court action provided that both proceedings were commenced within the applicable limitation period under the Insurance Act, R.S.O. 1990, c.1-8.

Julia Gordyukova was injured in a motor vehicle accident on November 9, 2001. She applied for accident benefits from her insurer. A dispute arose over Julia’s entitlement to certain medical benefits; mediation failed, however, an agreement was reached regarding Julia’s entitlement to income replacement benefits (IRBs). Julia then issued a statement of claim seeking damages for accident benefits, aggravated and punitive damages and a declaration that she is and will remain entitled to continued accident benefits pursuant to the terms of her automobile insurance policy.

Julia was paid IRBs for approximately 3 ½ years after which her insurer determined that she was no longer entitled on the basis of medical reports; mediation failed. It was, however, agreed that Julia’s previously issued statement of claim included a claim for IRBs.

In 2005, Julia’s insurer advised her that she had reached the $100,000.00 non-catastrophic limit for medical and rehabilitation benefits. Julia then submitted an application for determination of catastrophic impairment which was rejected. Mediation failed. Julia then filed for arbitration with respect to her catastrophic impairment status.

Julia’s insurer took the position that the issue of whether Julia was catastrophically injured should be heard at the same time as the court action. The arbitrator agreed on the condition that Julia provide notice to discontinue the court action. Julia provided the said notice and the issues were set to be heard together at arbitration.

On the eve of arbitration, Julia’s insurer brought a motion for a preliminary issue claiming that Julia was time barred from arbitrating her entitlement to IRBs pursuant to s. 281.1 of the Insurance Act.

Section 281.1 provides that a court proceeding or arbitration shall be commenced within two years after the insurer’s refusal to pay the benefit claimed.

Both the court action and arbitration were commenced within the two year limitation period.

The arbitrator found that Julia was not time barred from presenting her claim for IRBs at the arbitration. The arbitrator concluded that commencing an arbitration or court action within two years of an insurer’s refusal to pay the benefit fully satisfies the limitation requirement for that claim, even if one is subsequently added to a later proceeding. This is compatible with the legislative text and the purpose of the limitation period and produces the most reasonable and just result.

The arbitrator’s decision was overturned by the Director’s Delegate. Julia brought an application for judicial review before the Divisional Court.

The Divisional Court found the arbitrator’s decision to be both reasonable and correct. If the decision of the Director’s Delegate was allowed to stand, the insurer would have been allowed to initially argue that the proceedings should have been heard together and then subsequently claim a breach of the limitation period in adding the claim for IRBs to the arbitration which they requested in the first place. This result would have placed insureds in an impossible situation in other cases.

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MMW BURNS SUPPER

By Ian Mair

Mar7

January 25th is the birthday of Robert Burns, Scotland’s most celebrated poet. On January 25, 2012, MMW marked the occasion of Burns’s 203rd birthday with a traditional Burns Supper for our clients and friends. The MMW Burns Supper was held at historic Sir William Campbell House in Toronto. A bagpiper played outside the door to welcome our guests and the skirl of the pipes could be heard up and down University Avenue. Tourists stopped to listen, or perhaps it was to gawk at the sight of lawyers wearing kilts outdoors in January.

Inside, in front of a roaring fire, we were treated to a selection of single malt scotch whiskey. Suitably warmed up, we were piped into the ballroom on the second floor, for a supper of haggis, neeps and tatties as well as the poetry and music of Robert Burns.

Robin Moodie acted as master of ceremonies. Vern Rogers delivered the Selkirk Grace. Ian Mair recited Burns’s “Toast to a Haggis”. Colin Chant delivered a Toast to the Immortal Memory. Forough Ghorbani recited Burns’s poem, “To a Mouse”. Michael Kealy delivered a Toast to the Lassies and Bronwyn Martin delivered a Response to the Toast to the Lassies. Amy Moodie sang for us some of Burns’ s famous old songs, accompanied by Iain Leslie on guitar. Best of all, our guests got into the act. Poems were ably recited by Anthony Sydney-Cariglia , Erica Barton, Dan Pinnington and Joseph Picha.

It was great fun, and before the night was through we found ourselves talking about making this an annual affair. Will ye no come back agin?

 

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OCCUPIER’S LIABILITY AT A WEDDING; OR, RISK AND RISKY MOVES ON THE DANCE FLOOR

By Michael Kealy

Mar3

We’ve all been there. At the family wedding. Having a few drinks. At some point, the dance floor opens up and becomes flooded with people sweating out the alcohol or trying to impress the room with their moves.

The party-goers are responsible for their own risky moves: the Carlton dance is long since over; the Chicken Dance will get a decent reaction but looks silly; and air guitar only works for those who have practiced in advance.

But what about the dance floor itself? The drink is usually flowing at a wedding, and it sometimes flows out of a glass and onto the floor. Whose fault is it when a party-goer slips on a spilled drink and falls? The answer, as always, depends.

An occupier of a property, such as the owner of a hall or hotel that hosts a wedding, has an affirmative duty under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 to make its premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm. This duty is not absolute. The property owner must only take reasonable care (see Waldick v. Malcolm (1989), 70 O.R. (2d) 717 (C.A.)).

An older Court of Appeal case provides some guidance on this point. Basically, the occupier can’t be expected to guarantee the condition of the dance floor at all times. They need to keep an eye on the floor, but don’t have to clean it up in real time.

The facts in this case, McPhail et al v. T and L Club (Brantford), [1968] 2 O.R. 840-842 (C.A.), seem quaint in 2012. The plaintiff was dancing at a dance hall and fell on a piece of cheese on the dance floor during an intermission in the music. The occupier defendant was found liable at trial.

There was no evidence at trial as to when or how the piece of cheese, which was found on the plaintiff’s shoe, came to be on the dance floor where the plaintiff slipped. While the trial judge and the Court of Appeal accepted that the plaintiff slipped on the cheese, there was no evidence that there were other pieces of cheese or pieces of cracker on the floor, or that this had been a problem throughout the night.

The defendant had two men working the bar who would also pick up bottles or glasses left on the tables. At the same time, they would scan the dance floor for debris. There was no evidence at trial of complaints to them or to any other servant that the floor needed cleaning.

In setting aside the trial decision and determining the defendant should not have been held liable, the Court of Appeal noted as follows:

“We do not think that the defendant’s obligation to make the premises reasonably safe can be fixed at a level of constant inspection to thwart possible injury from bits of food or even cigarette butts which might be dropped on the floor. The defendant is not an insurer; and the situation was not one which exposed the female plaintiff to an unreasonable risk of harm. Different considerations might apply if the defendant had no one on duty to make collections of bottles and glasses and inspections of the floor. That is not this case.”

This makes sense. At some point, people have to accept some personal responsibility for themselves. Common sense dictates that if you see a spill on the dance floor, you should notify the staff. But if you ignore the spill and boogie on, then accept that you may have only yourself to blame if you find yourself in a heap on the floor, twisting the night away – in agony.

Final note: Don’t try air guitar unless you really know how to do it well.

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COURT OF APPEAL NARROWS SCOPE OF DEFENCES AVAILABLE TO MUNICIPALITIES IN ROAD AUTHORITY CASES

By Colin Chant

Feb6

Although it has been late in coming to Southern Ontario this year, winter weather is finally upon us.

As municipalities scramble to keep roads safe for winter driving conditions, they would do well to note the recent Ontario Court of Appeal decision of Giuliani v The Regional Municipality of Halton and the Town of Milton 2011 ONCA 812 [Giuliani].

Giuliani clarifies the circumstances under which municipalities may rely on the defences to liability set out in the Minimum Maintenance Standards for Municipal Highways (MMS) under the Municipal Act, 2001 when defending road authority cases.

With Giuliani, the Court of Appeal has adopted a strict construction of the MMS, and has narrowed the scope of defences available to municipalities under section 44(3)(c) of the Act.

The likely effect of the case will be to make it harder for municipalities to defend against road authority cases.

Background

On a snowy morning in April 2003, the plaintiff suffered catastrophic injuries when she lost control of her vehicle and collided with a vehicle in the oncoming lane.

She commenced an action claiming that the defendant road authorities had failed to keep the road in a condition that was reasonable in the circumstances.

The trial judge found that the defendants did not take reasonable steps to maintain the road by monitoring the weather or inspecting the roadway, and found them liable. He further concluded that the MMS under O. Reg. 239/02, did not apply and did not afford the defendants with a defence. He deemed the plaintiff 50% contributorily negligent for driving too fast and awarded her $375,000 in damages.

The defendants appealed, claiming that the trial judge had erred by finding that a defence under the MMS did not apply.

Section 44 of the Municipal Act, 2001

Section 44(1) of the Municipal Act, 2001 requires municipalities to maintain roadways in a reasonable state of repair. Section 44(2) creates legal liability where municipalities fail to meet the standard under subsection (1).

Section 44(3) sets out three defences to a municipality’s liability:

a. When the municipality did not know or could not have been expected to have known about the state of repair of the highway or bridge;

b. It took reasonable steps to prevent the default from arising; or

c. At the time the cause of action arose, the minimum standards established under the regulations to the Act applied to the highway in question and to the alleged default and those standards have been met.

The subparagraphs under subsection 3 are disjunctive, and will be satisfied if any one of the three criteria is met.

A municipality is not liable for negligently failing to maintain a highway if it complied with the minimum standards that applied to its failure.

Minimum Maintenance Standards for Municipal Highways

The minimum standards referred to in section 44(3)(c) of the Act, are embodied in the MMS. Originally set out in O. Reg 239/02, the MMS were amended by O. Reg 23/10. In Giuliani, O. Reg. 239/02 applied.

Section 4 of the MMS sets out minimum standards for clearing accumulated snow after it reaches a specified depth. Section 4 establishes for different classes of roadway the depth at which the MMS are triggered, and time frames within which a municipality must a) deploy snow removal resources, and b) clear accumulated snow.

Section 5 of the MMS establishes similar standards for icy roadways regarding the deployment of municipal resources and the treatment of roadway surfaces.

The Appeal

The trial judge made finding with regards to both section 4 and 5 of the MMS; however, the appeal dealt specifically with the trial judge’s finding regarding section 5.

The Court of Appeal held that the standards under section 5 of the MMS are directed at situations when the roadway has become icy, not before, and that the requirement to deploy resources and treat the roadway is only triggered by the municipality’s knowledge that the roadway is icy, and not by knowledge that it may or will become icy.

In Giuliani, the trial judge did not find the defendants for failing to treat the roadway after becoming aware that it was icy. Rather, the trial judge’s finding of liability was directed at the failure of the defendants to take reasonable steps to avoid the formation of ice before it became icy by monitoring the weather and deploying resources much earlier so as to avoid the formation of ice. Accordingly, section 5 did not apply, and the requirement under section 44(3)(c) of the Act that the MMS apply to both the highway where the accident occurred and to the alleged default was not met, with the result that the defence under the MMS did not apply.

The appeal was dismissed.

 

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NO SUIT FOR YOU: THE RIGHT TO SUE PROVISIONS OF THE WORKPLACE SAFETY AND INSURANCE ACT

By Bronwyn Martin

Feb6

Under the Workplace Safety and Insurance Act, a worker employed by a Schedule 1 employer who is injured in the course of employment is barred from commencing a civil action against another Schedule 1 employer. This is because Schedule 1 employers are required to contribute to the WSIB insurance fund.

The rationale behind this legislative provision is rooted in the historic “trade-off” which forms the foundation of the Ontario worker’s compensation system. This trade-off ensures that workers who are injured in the course of employment receive benefits through a non-fault insurance plan while at the same time employers are protected against civil actions by those same workers.

The protection that is offered to employers serves as a useful tool for Schedule 1 employers who are named as defendants in civil actions. Where the evidence suggests that the plaintiff was injured while they were in the course of their employment with a Schedule 1 employer, an application may be brought before the Workplace Safety and Insurance Tribunal (WSIAT) to determine if the plaintiff’s right to sue is statute barred.

On such an application, the WSIAT considers the nature of the employment relationship as well as the place, time and activity surrounding the accident. Where it finds that either the worker was in fact an independent operator, as opposed to a worker, the plaintiff will be permitted to continue with their action. Similarly, where there the place, time and activity giving rise to the accident are not sufficiently connected with the employment itself, the civil action may proceed.

The Divisional Court recently considered the employment relationship of the plaintiff in Wood v. Enbridge Gas Distributions Inc. 2011 ONSC 5494. In Wood, the plaintiff was a pipe fitter who was injured in an explosion. He then commenced an action, alleging that he was an independent contractor of Double G Gas Services (“Double G”) at the time of the explosion. The defendant brought a right to sue application before the WSIAT, in which it alleged that the plaintiff was in fact a worker. The WSIAT agreed, and the plaintiff appealed.

In dismissing the appeal, the Court emphasized a number of findings of the WSIAT. Particularly, while it was accepted that the both the plaintiff and Double G intended that the plaintiff would be an independent contractor, it did not mean that he actually was an independent contractor. In this regard, the WSIAT focused on the realities of the employment relationship, and not simply on what the contractual arrangement reflected.

This case highlights the importance and nuance of the right to sue provisions contained in the Workplace Safety and Insurance Act. However, it also serves as a reminder to look beyond the contract, tax returns and labels and to instead focus on the true nature of the employment relationship. By thinking outside the box, the exposure that comes with a civil action may be avoided.

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YOU CAN’T SPELL CATASTROPHIC WITHOUT CA

By Forough Ghorbani

Feb2

On December 23, 2011 the Ontario Court of Appeal released a decision which has clarified the method by which catastrophic impairment may be assessed under the Statutory Accident Benefits Schedule (SABS).

The case, called Kusnierz v. Economical Mutual Insurance Co., deals with the situation where a person’s injuries do not fall under one of the specific categories of injuries described in the SABS. In earlier decisions, such as Desbiens v. Mordini¹ , our courts had allowed for the combination of physical and psychological impairments in order to assess whether an individual is “catastrophically impaired”; however, in October 2010, in determining that Mr. Kusnierz was not catastrophically impaired, Justice Lauwers held that the combination of physical and mental impairments was not permitted under the SABS. Now, the Court of Appeal has respectfully disagreed, and overturned Justice Lauwers’ lower court decision. In doing so, the Court of Appeal has affirmed that, in fact, the SABS permits the combination of mental and physical impairments for the assessment of catastrophic impairment.

This decision is important because if an individual is found to be catastrophically impaired, meaning their injuries result in a 55% whole person impairment, he or she is entitled to enhanced medical and rehabilitation benefits up to $1 million rather than the standard coverage provided in the SABS ($100,000 for accidents before September 1, 2010 and $50,000 for accidents on or after September 1, 2010).

In this particular case, Mr. Kusnierz was involved in a motor vehicle accident in 2001 which resulted in the loss of his left leg below the knee. Following the accident and as a result of the amputation of his leg Mr. Kusnierz began to suffer from depression which was found to meet the DSM-IV diagnostic criteria for both a major chronic depression disorder and post-traumatic stress disorder.

Mr. Kusnierz was insured by Economical Insurance Company at the time of the accident and he sought accident benefits under the SABS. The parties agreed that Mr. Kusnierz was entitled to benefits; however, they disagreed as to whether his injuries and sequelae resulted in “catastrophic impairment”. If Mr. Kusnierz’s physical and mental impairments were considered separately for the determination of catastrophic injury, he would not meet the 55% whole body impairment requirement.

“… the SABS permit the combination of mental and physical impairments for the assessment of catastrophic impairment.”

The Court of Appeal’s decision involved a review of the SABS as well as the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The Court of Appeal determined that the SABS and the Guides allowed for and in certain instances called for the assessment of an individual’s physical impairments in combination with his/her mental impairments.

Economical argued that allowing combinations of psychiatric and physical impairments would expand the number of persons deemed catastrophically impaired. The Court of Appeal disagreed. In oral argument, Economical conceded that there are only a very few cases where an individual has a permanent physical impairment and a permanent psychiatric impairment which if assessed separately would not be catastrophic but would be if assessed together.

The Court of Appeal concluded that allowing this approach promotes fairness and the objectives of the statutory scheme.

Overall this case is in line with the tendency of the courts to allow for an integrated interpretation of a person’s injuries under the SABS. It is now clear that a person’s psychological injuries can be taken into consideration in combination with their physical injuries in an assessment of catastrophic impairment.

¹ [2004] O.J. No. 4735

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