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.
Rabu, 06 Februari 2013
Rabu, 30 Januari 2013
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.
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.
Rabu, 23 Januari 2013
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.
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.
Rabu, 16 Januari 2013
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.):
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.
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.
Rabu, 09 Januari 2013
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.
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.
Senin, 24 Desember 2012
Happy Holidays
Happy holidays from the Ontario Insurance Law Blog. We'll be back in January with our weekly posts. We wish you all the best in 2013.
Rabu, 19 Desember 2012
When Has FSCO Mediation Failed - Part 2
Last week, we blogged on the Court of Appeal`s decision in Hurst v. Aviva, which held that insureds may proceed to bring court actions or arbitration proceedings if 60 days have passed since an application for mediation at FSCO has been filed and no mediation has taken place.
The Court released its decision in Younis v. State Farm Insurance Company, 2012 ONCA 836 (C.A.) concurrently with Hurst. In the Hurst actions, the 60 day period had elapsed prior to the insured filing a court action. In Younis, however, the claimant applied for mediation on July 14, 2011 and filed a court action a few days later. State Farm`s motion to stay the action took place well after the 60 day period had elapsed. Justice Sloan refused to stay the action.
The Court of Appeal allowed the appeal. The Court held that the insured commenced his action in contravention of the statutory requirement by not waiting 60 days. Since Younis had not waited until mediation had failed, his action was barred. To allow otherwise would permit insured person to immediately commence civil actions and the statute did not permit this tactic.
The Court released its decision in Younis v. State Farm Insurance Company, 2012 ONCA 836 (C.A.) concurrently with Hurst. In the Hurst actions, the 60 day period had elapsed prior to the insured filing a court action. In Younis, however, the claimant applied for mediation on July 14, 2011 and filed a court action a few days later. State Farm`s motion to stay the action took place well after the 60 day period had elapsed. Justice Sloan refused to stay the action.
The Court of Appeal allowed the appeal. The Court held that the insured commenced his action in contravention of the statutory requirement by not waiting 60 days. Since Younis had not waited until mediation had failed, his action was barred. To allow otherwise would permit insured person to immediately commence civil actions and the statute did not permit this tactic.
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