Amendments to the Minimum Maintenance Standards - Part 2

This week we continue our review of the amendments to the Minimum Maintenance Standards which came into effect on January 25, 2013.

Part 2: New Requirement to Monitor Weather

The MMS did not previously require weather monitoring, although municipalities generally did so as part of winter maintenance operations.  The MMS now require municipalities to monitor the weather, both current and forecast for the next 24 hours.  From October 1 to April 30, weather must be monitored three or more times per day, at intervals determined by the municipality.  From May 1 to September 30, weather must be monitored once per day.  This amendment is clearly a response to Giuliani, in which the municipality was faulted for failing to monitor the weather and deploy resources in time to avoid the formation of ice on the road. 

The MMS definition of weather as “air temperature, wind and precipitation” tells municipalities what to monitor but the MMS do not state how this is to be done.  In addition, the MMS allow municipalities to determine the intervals at which the weather is monitored.  While these factors will allow monitoring systems to reflect local conditions, including budgetary constraints, we can expect to see claims challenging municipal decisions about the intervals at which weather is monitored and the methods used to do so.

Amendments to the Minimum Maintenance Standards - Part 1

The Minimum Maintenance Standards under the Municipal Act, 2001 were amended by Ontario Regulation 47/13, which came into effect on January 25, 2013.  Many of the amendments are a response to the Court of Appeal decision in Giuliani v. Halton (Regional Municipality), [2011] O.J. No. 5845 (C.A.) in which the court’s interpretation of the snow clearing and icy roadways standards limited their use as a defence to civil actions.  The amendments also provide more specific guidance to municipalities whose systems of winter road maintenance are based on the Minimum Maintenance Standards.  

In our next series of posts, we will be reviewing the changes to the MMS.

 

Part 1: New Definitions Added to Section 1

 

Section 1 of the MMS now contains the following definitions:

• “Ice” is defined as “all kinds of ice, however formed”.  Ice was not previously defined.
• “Snow accumulation” is defined as the natural accumulation of newly-fallen snow, wind-blown snow and/or slush that covers more than half a lane width of a roadway.  This definition was previously contained in the snow accumulation standard in section 4 of the MMS, which has been replaced as discussed below.
• “Substantial probability” is defined as “a significant likelihood considerably in excess of 51 per cent”.  This definition relates to patrols and maintenance activities that are done in anticipation of snow accumulation or ice formation, discussed below.  This definition may be the subject of debate in future civil cases, as it does not specify how much more than 51 per cent is “considerably in excess”.
• “Weather” is defined as “air temperature, wind and precipitation”.  Weather was not previously defined.

Examination for Discovery: Attendance of Parties

When a party has selected an individual to be examined on behalf of a corporation, is another corporate representative entitled to attend to observe discoveries?

In Cody v. Culley 2013 ONSC 199 (S.C.J.), the issue was whether a corporate representative could attend the examination for discovery of the individual chosen to be examined by the opposing party.  The plaintiffs argued that a corporation cannot have a different representative attend discoveries when the adverse party has selected a representative.  Master Glustein permitted the representative to attend.  A corporation has the right to attend examinations for discovery as an independent legal entity.  The corporate representative chosen by the adverse party is not required to have any decision-making power and a corporation may want someone at the discoveries who can decide litigation issues or at least report back to management for such decisions.  The attendance of such an individual could assist in the settlement process or provide more informed instructions to counsel.  The individual would not be attending to be examined, but to be the person who acts on behalf of the corporation to assist in the litigation decision-making process.

This decision could be useful to those representing corporate entities such as municipalities who wish to have a member of the Corporation observe discoveries to get a sense not only what the evidence might be but also how effective the witness may be.

Defendant Who Crosses Centre Line Prima Facie Negligent

The Court of Appeal has set aside a jury verdict that dismissed an action against a defendant who crossed out of his lane and collided with another vehicle.

In El Dali v. Panjalingham, 2013 ONCA 24 (C.A.), the plaintiff was injured in an automobile accident when the defendant lost control of his vehicle on an icy road, crossed the centre line, slid into oncoming traffic, and hit the plaintiff's vehicle.  The plaintiff remained on his side of the road and was able to bring his vehicle to a complete stop.  The police officer who attended the scene decided not to lay charges due to weather conditions.  The defendant did not testify at trial and called no other evidence to explain his driving.

A jury found there was no negligence on the part of the defendant and dismissed the case.  The plaintiff appealed.  The Court of Appeal allowed the appeal and ordered a new trial. The defendant breached s. 148 of the Highway Traffic Act by crossing the centre line of the road and a driver who does so is prima facie negligent.  The driver then bears the onus of explaining that the accident could not have been avoided with the exercise of reasonable care.  The explanation need not come from the defendant, but must come from someone or the defendant will be held at least partially responsible.  The fact the police officer did not lay charges and that there were icy road conditions were not sufficient to support the jury's conclusion.  Defence counsel suggested a 50% apportionment in her closing, which also suggested the defendant bore some responsibility.

Those defending similar claims will have to consider the appropriate evidence to call in order to rebut the onus to explain how the accident occurred without negligence.

Litigation Privilege - Production of Lawyer's Notes of Interview

A recent case deals with production of statements taken by an opposing party.  It provides a summary of the principles relating to litigation privilege.

In Hart v. Canada (Attorney General), 2012 ONSC 6067 (S.C.J.), the plaintiff brought a motion seeking production of notes that had been made by counsel for the defendant several years earlier when the plaintiff was a potential witness in another lawsuit arising out of the same factual nexus.  The notes appeared to be an almost verbatim translation of the interview.  The defendant argued the notes were protected by litigation privilege.  The Master ordered the notes to be produced and the defendant appealed.

The appeal was dismissed.  Litigation privilege cannot restrict disclosure of an opposing party's statements.  Information or statements that are obtained from an opposing party cannot be confidential from that party.  To the extent a document is a mere recording of information given by the opposing party, it is not subject to litigation privilege, even though it was created with a view to anticipated future actions; however, if the document contains something more that amounts to a solicitor's work product, then it is privileged.  Counsel for the defendant would be permitted to make a proposal to redact certain parts of the document that contained information that was more than simply a record of the plaintiff's interview and statement, such as margin notes, underlining and highlighting.

It appears that the key fact was that the notes contained an almost verbatim recording of the plaintiff's interview.  If the notes contained the solicitor's strategies or theories, the outcome may have been different.

Definition of "Accident" Under the SABS

How far can the definition of "accident" under the SABS be stretched?

In Dominion of Canada v. Prest, 2013 ONSC 92 (S.C.J.), the insured was washing his car and tripped over a curb sticking out from the wall of his parking garage.  He claimed that his right hand was touching the car as he fell, and therefore he was entitled to accident benefits.  Dominion sought a determination as to whether the incident met the definition of an "accident" within s. 3(1) of the SABS, which defines "accident" as "an incident in which the use or operation of an automobile directly causes an impairment."

Justice McNamara held that the incident was not an "accident".  He used the two part test set out by the Court of Appeal in Chisholm v. Liberty Mutual (2002), O.R. (3d) 776 (C.A.) and Greenhalgh v. ING (2004), CanLii 21045 (C.A.):

(a)  Did the incident arise out of the use or operation of an automobile (the “purpose test”); and

(b)  Did such use or operation of an automobile directly cause the impairment (the “causation test”).

Justice McNamara held that the vehicle was not being used or operated at the time of the incident and was not a direct cause of the impairment.  The use of the car had ended without injury being suffered and tripping over the curb was a new intervening act. The insured was not entitled to accident benefits, showing that there is indeed a limit to how far the definition can be stretched.

Loss Transfer - Cost of Assessments

Early this year, we blogged on a decision by Justice Greer holding that the costs of insurer generated assessments under s. 42 of the SABS are not recoverable under the loss transfer provisions (Wawanesa v. Axa).  The matter was appealed to the Court of Appeal.

The Court of Appeal decision is found at 2012 ONCA 592.  The Court dismissed the appeal.  Section 275(1) of the Insurance Act provides:

The insurer responsible under subsection 268(2) for the payment of statutory accident benefits to such classes of persons as may be named in the regulations is entitled, subject to such terms, conditions, provisions, exclusions and limits as may be prescribed, to indemnification in relation to such benefits paid by it from the insurers of such class or classes of automobiles as may be named in the regulations involved in the incident from which responsibility to pay the statutory accident benefits arose.

Justice Weiler held that the words "in relation to" convey a connection between two related subject matters.  A "connection" must be between statutory benefits paid and the cost of the assessment, and only exists if the ABs were actually paid.  If the assessment only saved some benefits from being paid unnecessarily there would be full indemnification, but no indemnification if no benefits were paid.  The legislature could not have intended such an anomalous result. In addition, the connection should be between insurer generated assessments and ABs paid to the insured, whereas the cost of the assessment is paid to the doctor who conducts the assessment.

Justice Blair wrote a dissenting opinion, preferring a wide scope to the words "in relation to" that would include the cost of assessments.

Giving the dissenting opinion, perhaps this matter will be headed to the Supreme Court for final clarification, especially given the rising costs of assessments.