Arunasalam v. Guglietti Estate, [2010] O.J. No. 3303 (S.C.J.)
The question to be answered in this motion with respect to refusals on examination for discovery was this: when counsel provides a summary of the anticipated evidence of a witness, is counsel required to seek clarification or further information from that witness?
Master Short held that although counsel must provide a summary of the substance of the evidence of a non-party witness, that obligation does not extend to obtaining further particulars and clarification. If the non-party witness is unwilling to provide clarification or further information to counsel opposite, it may be appropriate to bring a motion under Rule 31.10 in order to compel discovery of the non-party.
Rabu, 25 Agustus 2010
Kamis, 19 Agustus 2010
The Duty to Defend
Cadillac Fairview Corp v. Olympia Sanitation Products Inc., [2010] O.J. No. 3306 (S.C.J.)
In the context of slip and fall actions, there is often both an owner/occupier of a property as well as a company hired to maintain the premises. Frequently there is a dispute over whether the contract between the two entities requires the contractor to assume the defence of its principal.
In this decision, the main action arose out of an alleged slip and fall occurring at the Promenade Mall. Cadillac Fairview hired Olympia as part of a cleaning contract in which Olympia agreed to insure and indemnify Cadillac Fairview for any losses arising out of Olympia’s contractual responsibilities. The incident report completed after the fall described that the plaintiff had fallen over something and described the cause of the injury as a “trip and fall” as opposed to a “slip and fall”. Some of the allegations in the Statement of Claim involved allegations of improper design and disrepair of the accident location.
Justice DiTomaso held that Olympia was not required to assume the defence and indemnity of Cadillac Fairview. The Riocan case was distinguished in the circumstances as there were independent allegations of negligence beyond the scope of Olympia’s cleaning contract. In Riocan, the Court held that the true nature of the plaintiff’s allegations fell within the scope of the hold harmless clause, so the contractor was obliged to defend. Justice DiTomaso in this case was unable to determine one particular claim that fell within coverage captured the true essence of the action, and further, it was possible that the plaintiff was injured in a way that was totally unconnected to Olympia’s responsibilities.
This case shows the complicated nature of the duty to defend and indemnify. Cases are determined on the specific facts and allegations made in the Statement of Claim in addition to the contract between the parties. Generally, where there is some allegation of independent negligence plead by the plaintiff, the independent contractor will not be required to assume the defence and indemnify its principal.
In the context of slip and fall actions, there is often both an owner/occupier of a property as well as a company hired to maintain the premises. Frequently there is a dispute over whether the contract between the two entities requires the contractor to assume the defence of its principal.
In this decision, the main action arose out of an alleged slip and fall occurring at the Promenade Mall. Cadillac Fairview hired Olympia as part of a cleaning contract in which Olympia agreed to insure and indemnify Cadillac Fairview for any losses arising out of Olympia’s contractual responsibilities. The incident report completed after the fall described that the plaintiff had fallen over something and described the cause of the injury as a “trip and fall” as opposed to a “slip and fall”. Some of the allegations in the Statement of Claim involved allegations of improper design and disrepair of the accident location.
Justice DiTomaso held that Olympia was not required to assume the defence and indemnity of Cadillac Fairview. The Riocan case was distinguished in the circumstances as there were independent allegations of negligence beyond the scope of Olympia’s cleaning contract. In Riocan, the Court held that the true nature of the plaintiff’s allegations fell within the scope of the hold harmless clause, so the contractor was obliged to defend. Justice DiTomaso in this case was unable to determine one particular claim that fell within coverage captured the true essence of the action, and further, it was possible that the plaintiff was injured in a way that was totally unconnected to Olympia’s responsibilities.
This case shows the complicated nature of the duty to defend and indemnify. Cases are determined on the specific facts and allegations made in the Statement of Claim in addition to the contract between the parties. Generally, where there is some allegation of independent negligence plead by the plaintiff, the independent contractor will not be required to assume the defence and indemnify its principal.
Rabu, 04 Agustus 2010
Definition of "Struck by" or "Hit by" in Auto Insurance
The Court of Appeal for Ontario has decided that coverage under one's own policy for being "struck by" or "hit by" an unidentified automobile includes walking into an unnoticed steel pole protruding from a parked truck. Lewis v. Economical Insurance Group, [2010] O.J. No. 3158 (C.A.).
The facts are described as follows: "On a spring day in 2003, Bonnie Lewis walked out of a variety store and struck her head on a steel pole protruding from a truck parked the wrong way on the street in front of the store. The pole was unmarked, grey and nearly invisible. Ms. Lewis did not see the pole until she hit it. The pole struck her above her right eye near her temple. She fell to the ground, unconscious. She suffered a serious head injury, which has left her cognitively impaired."
Since the truck could not be identified, Ms. Lewis sued her own insurance company for damages for personal injuries. Both her automobile policy and the OPCF Family Protection Endorsement, which was additional insurance she had purchased, provided coverage for personal injuries resulting from an accident involving an unidentified or uninsured automobile. As Ms. Lewis was not an occupant of an automobile when she was injured, she was entitled to coverage only if she was "struck by" or "hit by" an unidentified automobile.
A motions judge concluded that Ms. Lewis was not "struck" or "hit by" the truck, or the pole that protruded from it, because the truck was not moving at the time. Instead, it was Ms. Lewis who struck or hit the pole.
The Court of Appeal concluded otherwise and finds that she is entitled to coverage.
Laskin J.A. added that "my interpretation of these words [struck or hit by] would not open the floodgates to injury claims by persons who walk into unidentified parked cars. This is a case about coverage, not liability or negligence. If the owner or driver of a parked car was not negligent, the claimant would have no legal entitlement to damages."
Whether the plaintiff is now entitled to damages "depends on her being able to prove that the unidentified owner or driver of the truck was negligent."
It seems that the Court is saying that if the plaintiff is not entitled to damages then it should be determined on the issue of negligence and not coverage. Coverage should be interpreted broadly whereas negligence must be proven strictly.
The facts are described as follows: "On a spring day in 2003, Bonnie Lewis walked out of a variety store and struck her head on a steel pole protruding from a truck parked the wrong way on the street in front of the store. The pole was unmarked, grey and nearly invisible. Ms. Lewis did not see the pole until she hit it. The pole struck her above her right eye near her temple. She fell to the ground, unconscious. She suffered a serious head injury, which has left her cognitively impaired."
Since the truck could not be identified, Ms. Lewis sued her own insurance company for damages for personal injuries. Both her automobile policy and the OPCF Family Protection Endorsement, which was additional insurance she had purchased, provided coverage for personal injuries resulting from an accident involving an unidentified or uninsured automobile. As Ms. Lewis was not an occupant of an automobile when she was injured, she was entitled to coverage only if she was "struck by" or "hit by" an unidentified automobile.
A motions judge concluded that Ms. Lewis was not "struck" or "hit by" the truck, or the pole that protruded from it, because the truck was not moving at the time. Instead, it was Ms. Lewis who struck or hit the pole.
The Court of Appeal concluded otherwise and finds that she is entitled to coverage.
Laskin J.A. added that "my interpretation of these words [struck or hit by] would not open the floodgates to injury claims by persons who walk into unidentified parked cars. This is a case about coverage, not liability or negligence. If the owner or driver of a parked car was not negligent, the claimant would have no legal entitlement to damages."
Whether the plaintiff is now entitled to damages "depends on her being able to prove that the unidentified owner or driver of the truck was negligent."
It seems that the Court is saying that if the plaintiff is not entitled to damages then it should be determined on the issue of negligence and not coverage. Coverage should be interpreted broadly whereas negligence must be proven strictly.
Selasa, 27 Juli 2010
Unidentified Vehicle: The Corroborating Evidence Rule
Is a passenger in an insured's motor vehicle an "independent witness" who can corroborate the insured's evidence concerning the involvement of an unidentified motorist for the purposes of the OPCF 44R Family Protection Endorsement? Is the passenger an "independent witness" if the passenger has also sued the insurer under the unidentified coverage provisions and therefore has an interest in the outcome?
D.A. Wilson J. recently said yes to these questions in Pepe v. State Farm Mutual Automobile Insurance Co., [2010] O.J. No. 2138 (S.C.J.).
Sections 1.5(c) and 1.5(d)(i) of the OPCF 44R, known as the Family Protection Endorsement, read as follows:
(c) where an eligible claimant alleges that both the owner and driver of an automobile referred to in clause 1.5(b) cannot be determined, the eligible claimant's own evidence of the involvement of such automobile must be corroborated by other material evidence; and
(d) "other material evidence" for the purposes of this section means (i) independent witness evidence, other than evidence of a spouse ... or a dependent relative ...; or (ii) physical evidence indicating the involvement of an unidentified automobile..
Wilson J. found that: "It is clear that the intention of this section is to limit the ability of individuals to make claims against their OPCF 44R policies for claims involving unidentified vehicles unless there is independent evidence to corroborate the involvement of a vehicle whose driver or owner cannot be ascertained. Further, the individual who corroborates the evidence of the claimant cannot be the spouse or a dependant of the claimant." (para. 10)
In the instance before Wilson J., the independent witness was a passenger in the plaintiff's vehicle and a girlfriend at the time of the accident but not at the time of the motion. Wilson J. concluded that this witness did not fit into the narrow class of persons excluded, namely a spouse or relative, and therefore she was an independent witness who could provide corroborating evidence.
It would seem that allowing a passenger, who has also sued the insurer under the unidentified coverage provisions and therefore has an interest in the outcome, to be the witness required under the Endorsement, defeats the intent of having "independent" corroborating evidence. On the other hand, it seems a correct finding on a plain and narrowly construed interpretation of the Endorsement's wording.
D.A. Wilson J. recently said yes to these questions in Pepe v. State Farm Mutual Automobile Insurance Co., [2010] O.J. No. 2138 (S.C.J.).
Sections 1.5(c) and 1.5(d)(i) of the OPCF 44R, known as the Family Protection Endorsement, read as follows:
(c) where an eligible claimant alleges that both the owner and driver of an automobile referred to in clause 1.5(b) cannot be determined, the eligible claimant's own evidence of the involvement of such automobile must be corroborated by other material evidence; and
(d) "other material evidence" for the purposes of this section means (i) independent witness evidence, other than evidence of a spouse ... or a dependent relative ...; or (ii) physical evidence indicating the involvement of an unidentified automobile..
Wilson J. found that: "It is clear that the intention of this section is to limit the ability of individuals to make claims against their OPCF 44R policies for claims involving unidentified vehicles unless there is independent evidence to corroborate the involvement of a vehicle whose driver or owner cannot be ascertained. Further, the individual who corroborates the evidence of the claimant cannot be the spouse or a dependant of the claimant." (para. 10)
In the instance before Wilson J., the independent witness was a passenger in the plaintiff's vehicle and a girlfriend at the time of the accident but not at the time of the motion. Wilson J. concluded that this witness did not fit into the narrow class of persons excluded, namely a spouse or relative, and therefore she was an independent witness who could provide corroborating evidence.
It would seem that allowing a passenger, who has also sued the insurer under the unidentified coverage provisions and therefore has an interest in the outcome, to be the witness required under the Endorsement, defeats the intent of having "independent" corroborating evidence. On the other hand, it seems a correct finding on a plain and narrowly construed interpretation of the Endorsement's wording.
Kamis, 22 Juli 2010
Are SABS assessors "experts"?
Those of you defending accident benefits actions may wish to review this case before your next discovery.
Babakar v. Brown (2010), 100 O.R. (3d) 191 (Div. Ct.)
The defendant insurer had the plaintiff assessed pursuant to s. 42 of the SABS to determine whether he continued to be entitled to benefits. Based on these reports, the insurer terminated benefits and the plaintiff brought an action against the insurer. During examination for discovery, the claims examiner refused to answer certain questions about the s. 42 reports on the basis that they constituted cross-examination of expert witnesses, beyond the permissible limits of r. 31.06(3).
The master ordered the questions answered and an appeal to the Superior Court was dismissed on the basis that the experts retained by the insurer were not "experts" within the meaning of r. 31.06(3).
The Divisional Court allowed the appeal. The experts were chosen by the insurer to help it make a determination under the SABS and as such, they were engaged by or on behalf of a party being examined in the action in relation to a matter in issue in the action. The discoverability of their evidence is therefore governed by r. 31.06(3).
Babakar v. Brown (2010), 100 O.R. (3d) 191 (Div. Ct.)
The defendant insurer had the plaintiff assessed pursuant to s. 42 of the SABS to determine whether he continued to be entitled to benefits. Based on these reports, the insurer terminated benefits and the plaintiff brought an action against the insurer. During examination for discovery, the claims examiner refused to answer certain questions about the s. 42 reports on the basis that they constituted cross-examination of expert witnesses, beyond the permissible limits of r. 31.06(3).
The master ordered the questions answered and an appeal to the Superior Court was dismissed on the basis that the experts retained by the insurer were not "experts" within the meaning of r. 31.06(3).
The Divisional Court allowed the appeal. The experts were chosen by the insurer to help it make a determination under the SABS and as such, they were engaged by or on behalf of a party being examined in the action in relation to a matter in issue in the action. The discoverability of their evidence is therefore governed by r. 31.06(3).
Rabu, 14 Juli 2010
Discovery by Videoconference
Midland Resources Holdings Ltd. v. Sharif (2010), 99 O.R. (3d) 550 (S.C.J.).
In this case, the plaintiff was living in Moscow and had a medical condition and his physician recommended against lengthy airplane trips. He brought a motion seeking to be examined for discovery by videoconference.
Justice Newbould granted the motion and refused to follow a prior Master's decision that held that video conferencing should be used rarely. The Court held that given the high costs of modern litigation, videoconferencing should be encouraged. The Order was granted pursuant to r. 34.07(1)(f).
It seems that in modern litigation it is increasingly common for parties to be outside of Ontario. Videoconferencing can be useful in such cases to help decrease some of the costs in litigation, which accords with the new emphasis on proportionality and access to justice.
In this case, the plaintiff was living in Moscow and had a medical condition and his physician recommended against lengthy airplane trips. He brought a motion seeking to be examined for discovery by videoconference.
Justice Newbould granted the motion and refused to follow a prior Master's decision that held that video conferencing should be used rarely. The Court held that given the high costs of modern litigation, videoconferencing should be encouraged. The Order was granted pursuant to r. 34.07(1)(f).
It seems that in modern litigation it is increasingly common for parties to be outside of Ontario. Videoconferencing can be useful in such cases to help decrease some of the costs in litigation, which accords with the new emphasis on proportionality and access to justice.
Rabu, 07 Juli 2010
Audiotaping Independent Medical Examinations
In Adams v. Cook (2010), 100 O.R. (3d) 1 (C.A.), the defendant sought an independent medical examination of the plaintiff by a specialist in physical medicine and rehabilitation. The plaintiff would consent only if the examination was audio recorded. In the initial motion, plaintiff's counsel swore an affidavit alleging there was a systemic bias by those conducting IMEs. He made no allegations against the specific specialist selected by the defendant. The motions judge refused to order the IME without audiotape and the Divisional Court dismissed the appeal. The defendant then appealed to the Court of Appeal.
The Court of Appeal allowed the appeal. In order to show that audio or video recording is necessary, there must be something more than an allegation of general bias among doctors who perform IMEs; there has to be something specific to the case.
The Court was invited to opine on whether there should be routine recording of IMEs in all cases; however, it declined to do so, preferring to leave this issue for the Rules Committee.
Independent medical examinations seem to be an area ripe for disputes between plaintiffs and defendants. The Court of Appeal's decision is one that may assist the defence in opposing requests to record the examination, although it seems that the Court of Appeal has left the door open for plaintiffs to argue for recording of IMEs in specific cases.
The Court of Appeal allowed the appeal. In order to show that audio or video recording is necessary, there must be something more than an allegation of general bias among doctors who perform IMEs; there has to be something specific to the case.
The Court was invited to opine on whether there should be routine recording of IMEs in all cases; however, it declined to do so, preferring to leave this issue for the Rules Committee.
Independent medical examinations seem to be an area ripe for disputes between plaintiffs and defendants. The Court of Appeal's decision is one that may assist the defence in opposing requests to record the examination, although it seems that the Court of Appeal has left the door open for plaintiffs to argue for recording of IMEs in specific cases.
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