Spring 2022 – Newsletter
Welcome to In|Sight, Rogers Partners’ quarterly newsletter that offers our unique perspective on relevant legal issues and the internal happenings of the firm.
Think Before You Sign – A Recent Decision on the Implications of Signing a Waiver
By Alon Barda
The issue of waivers has been prevalent in many cases recently and was, yet again, in the recent summary judgment decision of French v. Augusta Motorsports Park, 2021 ONSC 8385.
In July 2015, the main plaintiff was riding his four wheel-wheel drive vehicle up a sand pit at Augusta Motorsports Park when the vehicle tipped backward and landed on him. He was seriously injured as a result of the accident. He sued Augusta based in part on the defendants’ alleged failure to maintain the sand pit.
The defendants moved for summary judgment to dismiss the claim based on the terms of a release of liability and waiver of claims document signed by the plaintiff. The plaintiff took the position that there are genuine issues requiring a trial regarding the interpretation and applicability of the waiver and whether the plaintiff knew that he was signing the waiver.
When the plaintiff arrived at the park, he was presented with and signed a one-page waiver. The evidence is that patrons were told they were signing a waiver and they were asked to read the waiver. The patrons were also given adequate time to read the waiver and volunteers were present to answer any questions about the waiver.
In his affidavit, the plaintiff stated that he understood that he was signing a registration form but not a waiver. He agreed on cross-examination that no one rushed him through the registration process and that he had the opportunity, and was provided with sufficient time, to read the waiver had he chosen to do so. He also agreed that he could have asked questions about the waiver and that he had the opportunity to have the waiver explained to him.
Furthermore, the plaintiff acknowledged that he was participating in an event where he would be driving a four-wheel drive vehicle where there was a risk of injury, and that there were rules associated with attending Augusta.
There were also several warnings signs on the property advising of the event rules and advising patrons that they were signing a release and waiver.
The accident took place in a sand pit that was cordoned off with caution tape. The plaintiff maintained that he had unfettered access to the sand pit during the event and he did not recall any warning signs around the sand pit. He also claimed that he was never told he could not use the sand pit.
Law and Waiver
The motion judge referred to the law on waivers as recently summarized by Justice Myers in Arksey v. Sky Zone Toronto, 2021 ONSC 4564, at paras. 21-24, wherein he held that a person that actually signs the waiver is be presumed to be bound by it.
Moreover, Justice Myers held that there is no obligation on the defendant to ensure that the plaintiff has read the agreement she voluntarily signed. As long as a person is provided with an opportunity to read the agreement, it is up to the person to choose whether to read it or not.
The waiver in the case at bar was a one-page document with the title set out in capital letters:
RELEASE OF LIABILITY, WAIVER OF CLAIMS, ASSUMPTION OF RISKS AND INDEMNITY AGREEMENT
BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE
PLEASE READ CAREFULLY
The motion judge held that a reasonable person could not have missed the title.
The next portion of the waiver asked the patron to warrant and agree as follows:
I am familiar with and accept that there is the real risk of serious injury and death in participation, whether as a competitor, student, official or worker, in all forms of motor sport and in particular in being allowed to enter, for any reason, any restricted area…
I understand that all applicable rules for participation must be followed, regardless of my role, and that at all times during the EVENT the sole responsibility for my personal safety remains with me…
There were further paragraphs setting out “an unqualified assumption” of all risks and a full and final release and waiver of all liability and all claims. The plaintiff also printed his name and signed the waiver.
After reviewing the terms of the waiver, the Court summarized that, by executing the waiver, the plaintiff assumed all risks, released all claims for any cause whatsoever, and agreed not to sue the releasees for any loss or injury regarding of the cause.
The plaintiff raised four arguments that he said required a trial. The first issue raised was whether the plaintiff knew at the applicable time that what he was signing was a waiver. The motion judge found that a reasonable person could not have missed the title of the waiver, which expressly stated it is a release of liability and a waiver of claims.
Furthermore, the signs posted throughout the park would have reinforced to a reasonable person that they had signed a release and waiver and that, by signing, the signor waived certain legal rights. Accordingly, the motion judge held that there was “no obligation on Augusta to ensure that [the plaintiff] read or understood the waiver. By all subjective and objective accounts, [the plaintiff] consented to the waiver he signed.”
The second issue raised was whether the location of the accident was covered by the waiver. In this regard, the plaintiff argued that the waiver did not apply to the sand pit, as it was not part of the “event.” The motion judge found that the sand pit was covered by the waiver for various reasons, including that the waiver was signed to gain admission to the park and the sand pit was located within the park.
The third issue was whether the waiver applied to event participants and not event spectators. On this issue, the Court found that the waiver applied to any injury that the plaintiff might sustain as a result of his “participation in any part of, or [his] presence in any capacity”. Since he was indeed present “in any capacity”, the waiver was found to apply.
Lastly, the motion judge looked at whether the plaintiff understood the waiver’s potential implications. The Court repeated the earlier analysis and held as follows: “there is no general requirement that a party tendering a document for signature take steps to apprise the party signing of onerous terms or to ensure the party signing reads and understands the terms.”
In addition, the motion judge held that, “only where the circumstances are such that a reasonable person should have known that the party signing was not consenting to the terms does such an obligation arise.” As this obligation did not arise in this case, the motion judge held that the waiver applied and he concluded that the case that should be resolved summarily.
It seems as though everyone from personal trainers to indoor playgrounds for children all have extensive waivers that require signing before entry these days. These waivers do not simply protect the vendor from the negligence of the patron but also state that they are not liable for their own negligence.
In this case, there was no need to analyze whether the sand pit was properly sectioned off or whether the plaintiff was advised not to ride in that area. The fact was that the plaintiff signed a broad and strongly worded waiver and his claim was dismissed based on the terms of the release of liability and waiver of claims document signed.
Accordingly, those signing a waiver would be very wise to take time to understand what they are signing because that signature can have significant implications should something unfortunate occur.
Rogers Partners Insurance Coverage Checklist
By Stephen G. Ross and Andrew Yolles
There are a number of issues that should be considered when performing a coverage analysis. On a high level, non-exhaustive basis, those issues include the following:
Is the Person or Entity Covered/Insured: Coverage typically extends to:
- Named insured;
- Additional insureds pursuant to an additional insured endorsement; and potentially,
- Within the expanded definition of insured in the policy i.e. family member of insured; employee of insured corporation, etc.
Did the Loss or Triggering Event Occur During the Policy Period?
- Occurrence based – date of loss falls in policy period;
- Claims Made – claim made in writing during policy period, and reported as required by the policy.
Does the Claim Fall Within the Grant of Coverage?
- Carefully review the insuring agreement in the policy, and consider whether the claim(s) advanced against the insured falls within the scope of the grant of coverage provided;
- Consider the cause of the loss – under certain policies, certain causes of loss, like flooding, are not covered;
- For liability claims, are the property damages and /or bodily injuries claimed for covered?
- Consider whether fundamental nature of policy is potentially contingent on certain underlying conditions or events being met, e.g.: coverage only available if there is no underlying coverage such as in a contingent lessor’s policy. This is different than a priority provision as there is no overlap in coverage in such circumstances;
- Is the coverage grant worded so as to cover only direct and not indirect or consequential losses?
- Does the grant not extend to intentional acts (note: s. 118 of the Insurance Act, as it relates to intentional and criminal acts)?
Are the Damages Covered?
- Does the policy cover only compensatory damages?
- Does the policy purport to cover punitive damages?
- Is the coverage of punitive damages against public policy and/or otherwise unenforceable?
Geographic Limits of Coverage
- Location of loss: consider the policy territory definition as it is often confined to Canada and the US.
- Consider whether there are any operative exclusions;
- Find and carefully review exclusion section in policy;
- Exceptions: look for and consider any exceptions to the stated exclusions.
Relief from Forfeiture
- Consider whether any potential coverage breach or denial could be relieved against by the courts on application by the insured;
- Relief typically applies to imperfect compliance rather than non-compliance with a term of coverage and will usually only be granted where the insured has “clean hands” and the insurer has not suffered prejudice as a consequence of the breach or failure of the insured.
Waiver and Estoppel
- Consider whether the insurer could be seen to have waived or be estopped from relying on the breach of condition or failure by the insured;
- Waiver: generally includes conscious and deliberate waiving of legal rights by the insurer. Detrimental reliance on the waiver by the insured is not required;
- Estoppel: generally includes an express or implicit communication by insurer to insured that it does not intend to rely on the policy term or breach thereof. The insurer must have intended this assurance to affect the legal relationship between it and the insured, and the insured must have relied on the assurance to the insured’s detriment.
Non-Waiver Agreements and/or Reservation of Rights Letters
- Communication from insurer to insured which makes it clear that by undertaking investigations and steps in furtherance of the contract, the insurer is not affirming coverage. The purpose is to permit investigations prior to making a decision on coverage.
- Be mindful of canons of construction and interpretation whereby coverage granting language is construed broadly and coverage limiting provisions are construed narrowly;
- Any genuine ambiguity is to be resolved against the insurer;
- Contra proferentem (ambiguity is interpreted against the interests of the drafter – usually the insurer).
Other Insurance Clauses – Priority of Coverage
- Consider whether the loss may be covered by another overlapping policy of insurance available to the insured;
- Consider the ‘other insurance’ clauses in the policy;
- Generally speaking, if the policies cover the same risk at the same layer, then they are overlapping;
- If they are overlapping, then if both either say they are excess or both say they are primary, then they would likely share pro rata; otherwise, follow the priority provisions as stipulated e.g. if one policy says it is primary and the other says it is excess.
Duty to Defend vs. Duty to Indemnify
- Duty to defend is based on allegations in the statement of claim and not on what may be found by the court to have occurred, whereas duty to indemnify is based on the facts as ultimately found by the court;
- To determine if there is a duty to defend, a careful analysis of the allegations in the statement of claim against the insured needs to be undertaken and compared with the grant of cover and the exclusion sections of the policy;
- Duty to defend is, generally speaking, broader than the duty to indemnify and requires only the mere possibility of indemnification under the policy (if the allegations in the statement of claim are proven true) to be triggered;
- If there is a chance that one or more of the damages sought may not be indemnified against if awarded against the insured (i.e. punitive damages), then that needs to be explained in a carefully worded reservation of rights letter from the insurer to the insured.
Duty to Defend and Covered vs. Uncovered Claims
- If uncovered claims are, or can be, defended at no extra cost through the defence of covered claims, then there is no allocation issue;
- If there are extricable defence efforts that will be expended in defence of uncovered claims, then an allocation of defence costs between insurer and insured is appropriate;
- Generally speaking, allocation of defence costs occurs at the end of the case, once the nature of the defence efforts are known and quantifiable. In the interim, the insurer is usually required to defend (fund) all defence efforts during the conduct of the litigation.
Duty to Defend: Concurrent Duty to Defend Between Two or More Insurers
- Distinct from the situation between insurer and insured set out above. This is an allocation between insurers who have an overlapping or concurrent duty to defend the insured;
- Allocation is appropriate in this context and will depend upon whether only some (or all) of the allegations against insured engage overlapping duties between insurers and the anticipated efforts expended by defence counsel on the various allegations or claims;
- Court will often allocate defence costs 50/50 between two concurrent insurers during conduct of litigation, with potential reallocation to occur at end of the case based on the issues identified above.
Court of Appeal Rejects Late Notice Defence
By Annie Levanaj, Student-at-Law
The Ontario Court of Appeal, in Graham v. Toronto (City), 2022 ONCA 149, recently considered whether a claim against a municipality was barred due to the plaintiffs’ failure to comply with the 10 day notice requirement.
The issues involved in the appeal are relevant not only to claims against municipalities, but also to general occupiers’ liability claims involving snow or ice. As of January 29, 2021, the Occupiers’ Liability Act has required plaintiffs to comply with a 60 day notice requirement for accidents involving snow or ice.
The action arose after Ms. Robyn Graham tripped on a pothole in a pedestrian crosswalk in Toronto on January 2, 2018, suffering injuries as a result. Ms. Graham and her husband claimed against the City of Toronto (the “City”) in respect of Ms. Graham’s injuries.
Section 42(6) of the City of Toronto Act, 2006, (the “Act”) requires a plaintiff to give notice of the accident to the City within 10 days of its occurrence. Ms. Graham did not give the City notice of her claim until March 22, 2018, almost three months after her trip and fall.
The Underlying Motion
The City brought a motion for summary judgment dismissing the action due to Ms. Graham’s failure to comply with the notice requirements in section 42(6) of the Act.
The motion judge dismissed the City’s motion and found that Ms. Graham’s failure to provide the 10-day notice did not bar her action, as there was a reasonable excuse for the late notice and the City was not prejudiced in its defence.
The motion judge further granted reverse summary judgment to the plaintiffs and dismissed the City’s statutory notice defence, declaring that the plaintiffs’ action was not statute-barred by s. 42(6) of the Act, despite the plaintiffs not having brought a cross-motion.
The City appealed on two grounds:
- The summary judgment was the product of an unfair process; and
- The motion judge erred in not finding the plaintiffs’ action barred by s. 42(6) of the Act.
The Court of Appeal’s Analysis
The City submitted that the motion judge acted in a procedurally unfair manner by granting the plaintiffs’ reverse summary judgment in the absence of a notice of cross-motion.
The Court of Appeal began its analysis of this issue by citing Drummond v. Cadillac Fairview, 2019 ONCA 447, and stated that summary judgment motions are intended, in part, to achieve fair and just results. It explained that a motion judge may grant judgment against the moving party even where the responding party has not filed a notice of cross-motion for summary judgment if the court gave the moving party some notice of that potential outcome.
The Court of Appeal highlighted different ways the court can ensure a moving party has notice of the risk of a reverse summary judgment, including:
- in judicial regions where scheduling a summary judgment motion must pass through some form of triage or practice court, the motion scheduling request form can inquire whether the responding party intends to ask for a reverse summary judgment;
- at the start of a motion hearing, the judge can inquire whether a reverse summary judgment will be sought;
- if, during the course of the hearing, the judge forms the view that he or she might grant a reverse summary judgment, the judge should so inform the parties to allow them to respond; and
- if, during the course of preparing reasons disposing of the motion, the presiding judge forms the view that granting a reverse summary judgment might be appropriate in the circumstances, the judge should so inform the parties and afford them an opportunity to make further submissions.
Here, the motion judge had emailed counsel while her decision was under reserve and advised that, when ruling on summary judgment motions, she usually relies on certain precedents. She highlighted specific paragraphs in the decisions and requested counsel to inform her if they wished to make submissions on the cases. In one of the cited cases,the judge had granted reverse summary judgment in favour of a party despite that party not having brought a cross-motion.
Therefore, the Court of Appeal found that this submission failed, as the motion judge had put the parties on notice and afforded them an opportunity to make submissions.
The City argued that the motion judge erred in applying section 42(8) of the Act, which establishes that to overcome a failure to provide a timely notice, a plaintiff must establish 1) a reasonable excuse for the delay; and 2) the defendant was not prejudiced in its defence as a result of the delay.
The Court of Appeal was not persuaded by the City’s submissions on this ground. The Court stated that “to determine whether a plaintiff has demonstrated a reasonable excuse, a court must decide whether, in all of the circumstances of the case, it was reasonable for the plaintiff not to give notice until she did”.
The motion judge had found that the plaintiff did not realize her injuries were serious until several months after the incident, when physiotherapy was not helping. The motion judge held that it was reasonable for the plaintiff to wait and see whether her injuries would heal before deciding to sue. Further, the motion judge noted that the delay in providing notice (approximately three months) was not lengthy.
The Court of Appeal held that the motion judge’s reasons demonstrated that she identified and applied prevailing jurisprudence concerning s. 42 (6) and (8) of the Act, took into account all the circumstances, did not fail to appreciate the relevant evidence, did not misapprehend the evidence, and did not draw any unreasonable inferences.
The City had argued that it could not conduct timely investigations as a result of the plaintiff’s late notice. In particular, the City stated that it was not able to take measurements of the pothole before it was repaired.
The motion judge had identified a large body of evidence that led her to conclude that the delay in giving notice would not prejudice the City in its defence, including:
- Ms. Graham took clear photos of the pothole within the 10 day period;
- The City took photos of the pothole on January 19, 2018, 17 days after Ms. Graham’s fall in response to a complaint about the hole by another person;
- The City’s field investigator who took photos determined the pothole required repair which was quickly done;
- The City did not adduce any evidence explaining why the field investigator did not measure the dimensions of the pothole, though he had the opportunity to do so; and
- The plaintiffs filed an expert report which opined on the dimensions of the pothole using the January 2018 photos, and the City did not cross-examine the expert.
The Court of Appeal gave deference to the motion judge’s findings and rejected the City’s position that it was prejudiced.
Since the motion judge did not make a finding about the dimensions of the pothole, the Court of Appeal found that her decision does not bar the City from advancing a defence at trial that the crosswalk was in a proper state of repair.
The Court of Appeal dismissed the appeal. The City will therefore not be able to assert a late notice defence at trial.
This decision shows that a plaintiff may have a reasonable excuse for providing late notice if he or she reasonably believed that the injuries from the accident would heal. Moreover, other cases, such as Crinson v. Toronto (City), 2010 ONCA 44, have indicated that, if a plaintiff has very severe injuries which affect his or her mental state, there may be a reasonable excuse for providing late notice.
In other words, the initial severity of a plaintiff’s injuries, or lack thereof, can both be relevant factors in determining whether the plaintiff has a reasonable excuse.
However, it must be kept in mind that a plaintiff has to satisfy both elements of the test. Specifically, the onus is on the plaintiff to show that there is a reasonable excuse and that the defendant is not prejudiced as a result of the delay.
In Kanner v. The Corporation of the City of Hamilton, 2017 ONSC 6795, Justice Braid noted that, with the passage of time and the absence of notice, a defendant may be unable to properly investigate and respond. Documents may be destroyed due to retention policies. Further, without proper notice, it may not be possible to obtain timely evidence which would otherwise have been available from employees and potential witnesses.
In Langille v. Toronto (City), 2010 ONSC 443, Justice Frank stated that “[t]he question is not how much prejudice the [defendant] has suffered but whether it has suffered prejudice”. Justice Frank accepted the evidence of the defendant that, had timely notice been given, full investigations would have been conducted. Her Honour held that “…these lost opportunities together with the diminished recall of those involved amount to prejudice”.
Therefore, if a lack of timely notice prevented the defendant from conducting investigations, the plaintiff most likely will not succeed on the notice issue.
Amendments to Rules on Trial Readiness, Late-Served Evidence, and Timing of Pre-Trial Conferences
New amendments to the Rules of Civil Procedure are anticipated to increase compliance with the deadlines for expert reports and decrease late requests for adjournments of trials. Trial judges will have more discretion to refuse to admit evidence when there is non-compliance with the Rules. The amendments will also likely lead to more productive pre-trial conferences.
The amendments are contained in Ontario Regulation 18/22, which came into force on March 31, 2022.
Certificate of Readiness
Under subrule 50.03.1(1), all parties are now required to serve and file a certificate of readiness at least 30 days prior to the pre-trial conference. There is a specific form (Form 50A).
The parties have to indicate in the form whether they intend to call expert evidence at trial and, if so, whether the experts’ reports, other than supplementary reports, were served within the required time.
The time for serving expert reports has not been amended. Subrules 53.03(1) and (2) require originating expert reports to be served at least 90 days before the pre-trial conference and responding expert reports to be served at least 60 days before the pre-trial conference.
If an expert report is not served within these timeframes, the amendments require the party to provide an explanation in the certificate of readiness. This will likely cause parties to pay greater attention to the deadlines to serve expert reports, which in turn will cause fewer adjournments of trials due to late-served expert reports.
Prior to the amendments, the deadline for serving expert reports could be extended or abridged at a pre-trial conference or case management conference, or on a motion. These mechanisms remain in place, but under clause 53.03(4)(c), the parties are also permitted to consent to an extension as long as it does not affect the trial date.
The certificate of readiness must be filed regardless of whether a party has already obtained an extension of time to serve an expert report.
Leave to Admit Evidence
Subrule 53.08(1) provides that evidence is only admissible with leave of the trial judge in the following circumstances outlined in subrule 53.08(2):
1. Subrule 30.08 (1) (failure to disclose document).
2. Rule 30.09 (failure to abandon claim of privilege).
3. Rule 31.07 (failure to answer on discovery).
4. Subrule 31.09 (3) (failure to correct answers on discovery).
5. Subrule 53.03 (3) (failure to serve expert’s report).
6. Subrule 76.03 (3) (failure to disclose witness).
Under the amendments, the words “failure to serve expert’s report” in paragraph 5 of subrule 53.08(2) have been changed to “failure to comply with requirements re experts’ reports”.
Previously, the rule stated that “leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial [emphasis added]”.
This test has been modified. The amendments require the party seeking leave to satisfy the trial judge that there is a reasonable explanation for the failure to comply with the Rules.
Subrule 53.08(1) states:
(1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,
(a) there is a reasonable explanation for the failure; and
(b) granting the leave would not,
(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or
(ii) cause undue delay in the conduct of the trial [emphasis added].
Notably, along with requiring an explanation for the failure to comply with the Rules, the word “shall” has been replaced by the word “may” in regards to granting leave.
Therefore, the trial judge has greater discretion to refuse to admit evidence where there is non-compliance with the Rules, including late-served expert reports. This should cause parties to take greater care in complying with disclosure and production requirements in the Rules.
Rule 50.02 has been amended to require the pre-trial conference to take place approximately one to four months prior to the trial.
Previously, parties were supposed to schedule a pre-trial conference within 180 days of setting an action down for trial. However, there was no specified timeframe as to when the pre-trial conference had to take place. In some cases, pre-trial conferences were being held one to two years prior to the trial. This is not ideal since a lot can happen during the interim period. The complexion of the case can greatly change by the time of trial.
Under the amendments, the parties still have to schedule a pre-trial conference within 180 days of setting an action down for trial, but the pre-trial conference must be held 30 to 120 days prior to the trial, with limited exceptions.
Specifically, subrule 50.02(2.1) states:
(2.1) Unless otherwise provided by a court order or applicable practice direction, a pre-trial conference shall be scheduled for a date that is not more than 120 days and not less than 30 days before the later of the following dates:
1. The first day fixed for the trial.
2. The first day of the sitting during which the trial is expected to be held.
This change applies to actions set down for trial on or after March 31, 2022.
By having a pre-trial conference close in time to the trial date, the parties should be “trial ready” at the pre-trial conference. In most cases, all evidence on which the parties intend to rely at trial should be available by the time of the pre-trial conference. This should make the pre-trial conference more productive. Moreover, knowing that the trial is imminent, the parties may be more amenable to settlement at the pre-trial conference.
Presently, in some regions, a trial date is scheduled after the pre-trial conference. This will likely have to change because, due to the amendments, the trial date will have to be known before the pre-trial conference can be scheduled. That being said, it remains to be seen how regional practice directions may impact this process.
Clause 50.07(1)(a.1) permits the presiding judge or associate judge at a pre-trial conference to adjourn the trial if necessary. This is subject to the direction of the regional senior justice or his or her designate.
Prior to the amendments, rule 50.12 permitted a judge or associate judge to order costs of a pre-trial conference. This power is more specifically outlined in the amendments. Subrule 50.12(2) provides:
If the judge or associate judge determines that a pre-trial conference over which the judge or associate judge presided was unproductive for reasons relating to a party’s conduct, an order made under subrule (1) may require that the costs be paid immediately.
This seems to be a clear signal that parties must be fully prepared for pre-trial conferences, or else they may be ordered to pay costs.
Summary of Amendments
- Each party must serve and file a certificate of readiness regarding expert reports at least 30 days prior to the pre-trial conference.
- Parties can consent to extend the time to serve expert reports as long as it does not affect the trial date.
- If evidence is only admissible with leave due to a party’s failure to comply with the Rules, the party seeking leave must provide a reasonable explanation for the failure.
- The amendments give the trial judge greater discretion to refuse to admit evidence in situations of non-compliance with the Rules. This includes late-served expert reports.
- Pre-trial conferences will take place 30 to 120 days (approximately one to four months) prior to the trial, unless a court order or applicable practice direction provides otherwise.
- If a pre-trial conference is unproductive due to a party’s conduct, costs may be ordered to be paid immediately.
Costs at the LAT - Unlikely to Act as a Deterrent to Future Conduct
By Alon Barda
One of the more controversial changes when the adjudication of SABS disputes was transferred from FSCO to the LAT is the ability of the Tribunal to award costs. At FSCO, the arbitrator could award “all or part of such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations, to the maximum set out in the regulations.” This included various types of expenses, such as filing fees, legal fees, and disbursements, which were specifically set out in a Schedule attached to the Regulation.
The legislative authority now to award costs is within the Common Rules of Practice & Procedure applicable to LAT proceedings and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”).
Section 17.1(1) of the SPPA states that a Tribunal “may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding.” However, there are limitations.
Section 17.1(2) of the SPPA states that the Tribunal shall not make an order to pay costs unless the following apply: “a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and b) the tribunal has made rules under subsection (4).”
As such, while the Tribunal may order a party to pay all or part of another party’s costs in a proceeding, the cost award is statutorily limited to circumstances wherein the conduct of a party has been unreasonable, frivolous or vexatious, or a party has acted in bad faith.
The section in the LAT Rules for costs mirror that in the SPPA. Section 19.1 of the LAT Rules states that, “where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.”
Section 19.5 and 19.6 were added to the LAT Rules when they were updated on October 2, 2017 (the previous rules were known as the Licence Appeal Tribunal Rules of Practice and Procedure).
Section 19.5 sets out the factors that will be considered by the Tribunal in awarding costs, such as the seriousness of the misconduct, prejudice to other parties and the potential impact an order for costs would have on individuals accessing the Tribunal system.
Furthermore, while the SPPA allows an order for a party to pay “all or part of another party’s costs in a proceeding”, s.19.6 of the LAT Rules outlines that the amount of costs shall not exceed $1,000 for each full day of attendance at a motion, case conference or hearing.
As such, while the LAT has jurisdiction to allow for the payment of the other party’s costs under very limited circumstances, the LAT exercised its jurisdiction pursuant to ss.17.1(4) to limit even the amount of costs recoverable.
As we approach almost six years at the LAT, it remains that, in the rare circumstances where costs were awarded, it is an exceedingly low amount. This was once again seen in the recent case of Blas v. Aviva Insurance Canada, 2021 CanLII 127471 (ON LAT).
In Blas v. Aviva Insurance Canada, the claimant was injured in an accident on August 24, 2017. The claimant sought benefits from her insurer, including various medical benefits and costs of examinations. The insurer denied the benefits on the basis that they were not reasonable and necessary.
The Tribunal ultimately found entitlement to a psychological assessment and a medical benefit for psychological services. The Tribunal found that there was no entitlement to the other seven medical benefits/cost of examinations in dispute.
On the issue of costs, the Tribunal noted that the awarding of costs is a discretionary remedy applicable where the Tribunal finds that a party has acted unreasonably, frivolously, vexatiously, or in bad faith in accordance with Rule 19.1 of the Tribunal’s Common Rules. Furthermore, the adjudicator stated that Rule 19.5 provides “the discretion to deny or grant the request for costs or award an amount I deem appropriate.”
Notably, the Tribunal does not reference Rule 19.6, which states that the amount of costs shall not exceed $1,000 for each full day of attendance at a motion, case conference or hearing.” The amount that the Tribunal may deem appropriate cannot exceed $1,000 pursuant to the LAT Rules.
The Tribunal highlighted that “in considering the test for costs, the Tribunal may look at the level of seriousness of the misconduct, whether the conduct was in breach of any Tribunal orders, or whether the alleged behaviour in some way interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process.”
Furthermore, “the Tribunal may consider whether the alleged conduct resulted in prejudice to the other parties, and the potential impact a costs award may have on individuals relying on the Tribunal process.”
The claimant argued that an award for costs was warranted since the insurer waited approximately 16 months to remove her from the MIG after the insurer’s s. 44 assessor found that her injuries fell outside the MIG.
While the Tribunal found that the claimant had not established that a number of the disputed OCF-18’s were reasonable and necessary, the Tribunal nevertheless found that the insurer acted unreasonably and awarded $200 in costs. In particular, the Tribunal found that the insurer’s conduct in removing the claimant from the MIG was unreasonable.
The Tribunal noted that it did not agree with the insurer’s position on removing the claimant from the MIG as it occurred well after the insurer’s examination and the delayed removal blocked the claimant’s “access to an increased pool of funds for an unreasonable period of time.” Further, the insurer ultimately approved an OCF-18 that would likely have been approved much sooner had the claimant been removed from the MIG “in a more timely manner”.
The Tribunal ultimately levied a $200 award against the insurer for the unreasonable 16-month delay in removing the claimant from the MIG. The Tribunal noted that the insurer, as a sophisticated party, should have known that its delay could result in a costs award against it.
The insurer waited too long to remove the claimant from the MIG after the finding by its own assessor that the claimant’s injuries do not fall within the MIG. This likely impacted the file handling and appears to represent the type of unreasonable conduct that warrants a cost award. Nevertheless, this is unlikely to act as any form of deterrent for future practice considering the amount.
The Tribunal also addressed another important point that appears to come up from time to time in these MIG cases. The Tribunal noted that the insurer “appears to assert that because J.B. was removed from the MIG on psychological grounds, the OCF-18’s for physical assessments and/or treatment were not reasonable and necessary.”
The Tribunal disagreed and held that a “removal from the MIG does not limit an applicant to treatment solely on the grounds they were removed from the MIG. Removal from the MIG allows an applicant to seek funding for treatment both within and outside of the grounds on which they were removed from the MIG.”
It is important for insurers to remember that a removal from the MIG on either psychological or physical grounds means a removal from the MIG entirely.
A Permanent Alteration of Function – Leg Injuries and Catastrophic Impairment
By Alon Barda and Jennifer Singh
The decision of Patchett v. Optimum et al is the first decision to consider s. 3.1(1) 2. iii of the SABS at the LAT and the Divisional Court. Pursuant to this section, an impairment is a catastrophic impairment if an insured person sustains an impairment that results in a severe impairment that meets the following criteria:
iii. Severe and permanent alteration of prior structure and function involving one or both legs as a result of which the insured person’s score on the Spinal Cord Independence Measure (SCIM), Version III, item 12 (Mobility Indoors)…and applied over a distance of up to 10 metres on an even indoor surface is 0 to 5.
Arbitrator Boyce rendered the decision for the Tribunal and also the reconsideration decision. The matter was then appealed to the Divisional Court.
On February 3, 2018, the claimant (appellant) was struck by an SUV while walking to her vehicle in a parking lot of a grocery store. She fell to the ground, injuring her right foot and leg. Her injuries included a right tibial fracture and right metatarsal fracture as well as various other injuries to her lower extremities.
She was transported via ambulance to the hospital. She remained in the hospital until March 31, 2018 and underwent multiple surgeries for her injuries. She was then transferred to a long-term care facility for a 90-day program. She was released home on June 29, 2018. She was provided with assistive devices, including a wheelchair, bath/transfer bench and a walker. On August 2, 2018, the claimant required a further surgery to address an infection at her surgical site.
The claimant submitted a CAT application on March 26, 2019. On July 3, 2019 her application was denied based on the s.44 insurer examinations, which concluded that the claimant did not meet the threshold for a CAT impairment designation under Criterion 2 – severe impairment of ambulatory mobility or use of arm or amputation.
In particular, the orthopaedic surgeon and occupational therapist who completed reports as part of the CAT IE assessments on June 11, 2019 and June 13, 2019 found that the claimant scored greater than 5 on the Spinal Cord Independence Measure (“SCIM”). As such, they determined that the claimant was not catastrophically impaired.
LAT Decision and Reconsideration
Adjudicator Boyce determined that, to satisfy the definition of catastrophic impairment under s. 3.1(1) 2. iii, there must be:
(i) a severe and permanent alteration of the structure of one or both legs; and
(ii) a severe and permanent alteration of function of one or both legs.
Adjudicator Boyce accepted that the claimant scored a 4 on the SCIM in September 2018, which met the threshold for a CAT designation. However, he highlighted that the claimant registered a score of greater than 5 on July 3, 2019, which did not meet the threshold for CAT designation. Accordingly, Adjudicator Boyce concluded that the functional alteration of the claimant’s leg function had been temporary and did not meet the CAT criteria that it be permanent.
At para. 19 of the LAT Decision, Adjudicator Boyce stated:
… my plain reading of the language of the first component of criteria 2(iii) leads me to believe that there must be “severe and permanent alteration of the structure of one of both legs” (“structure”), and “severe and permanent alteration of function of one or both legs” (“function”). On a plain reading, I find that the “function” referenced by the latter relates to mobility, namely the ability to traverse across a flat surface for a distance of 10 metres with or without a mobility aid. The SCIM scale is the test that is to be used to determine the applicant’s functional mobility.
Adjudicator Boyce continued:
While there is no dispute that the “structure” of the applicant’s leg has been severely and permanently altered, I find the language of the “function” condition also requires the applicant’s alteration of function to be “severe and permanent”. As we know, the severity and permanency of the “function” condition is assessed using Item 12 of the SCIM. As a result, on my plain reading, I find criteria 2(iii) requires a permanent alteration of function in the leg, measured by a permanent score between zero and five on Item 12 of the SCIM.
At paragraphs 20 to 24 of the decision, Adjudicator Boyce expresses the view that a score of between zero and five on the SCIM on a “temporary basis at any single point post-accident” is not sufficient to receive a CAT designation where that mobility impairment is not permanent.
Accordingly, Adjudicator Boyce concluded that, although the appellant did have a severe and permanent alteration of the structure of one or both of her legs, she did not suffer a permanent alteration of function in her leg, as measured by “a permanent score between zero and five on Item 12 of the Spinal Cord Independence Measure (“SCIM”).
Furthermore, he held that a score of between zero and five on the SCIM on a “temporary basis at any single point post-accident” is not sufficient to receive a CAT designation where that mobility impairment is not permanent.
On the evidence, it appeared that the claimant “was using a single crutch (and progressing to a cane, according to the report) at the time of the s. 44 IE’s in June 2019 and that she no longer registered a SCIM scale of zero to five.”
Adjudicator Boyce indicated that appellant’s temporary need to use two crutches was not comparable to an insured who loses a limb “for the rest of their life” and therefore “requiring a mobility aid on a permanent basis.”
In considering the applicable provision, Adjudicator Boyce stated that, on its face, s. 3.1(1) 2. iii of the SABS requires a permanent loss of mobility function that is measured by a score of 0 to 5 on the SCM “on a permanent basis” and that this section is not intended to “include the very rare category of individuals involved in an accident who have permanent structural damage to a leg but have only temporary mobility impairments requiring the use of bilateral aids”.
Adjudicator Boyce held that requiring a permanent mobility score at between zero and five would not unfairly punish the claimant, whose “specific impairment, the temporary duration of same, the narrow window during which she required two mobility aids and her positive prospects for recovery, are a seemingly rare combination of facts.”
Arbitrator Boyce rejected the request for reconsideration. He summarized the claimant’s position to be that he erred by inserting a requirement of permanency to the SCIM score, “instead of addressing when it would be appropriate to administer the SCIM, and whether to accept the score once given.”
He found that he had made no error in the LAT decision and that, as was set out in his decision, “a CAT designation like the one the applicant seeks requires a permanency of mobility impairment.”
Adjudicator Boyce repeated the findings in his decision, wherein he found that claimant’s mobility impairment was not permanent and “that had the Legislature intended for the level of impairment to be anything but a permanent one, it would have specified the appropriate time to measure the impairment on the SCIM, as it did under the other criteria for CAT under s. 3.”
Furthermore, he repeated paragraphs 23 and 24 of his LAT Decision wherein he found that the claimant’s position would lead to an absurd result “where out of all of the CAT impairments under s. 3.1 – paraplegia, amputation, loss of vision in both eyes and traumatic brain injuries among them – that the severe impairment of ambulatory mobility is the only criteria that would qualify for CAT despite being temporary.”
Divisional Court Appeal
The claimant appealed on the grounds that Adjudicator Boyce erred in law:
- by not accepting the agreed statement of facts that the appellant suffered a permanent severe alteration of prior structure and function in her right leg as a result of the February 3, 2018 accident;
- by ignoring the medical evidence on file that the appellant routinely used two mobility aids (crutches) and not a cane and by concluding that her mobility impairment was not permanent when it had been agreed that it was;
- by inserting a permanency requirement into the SCIM test where no such language exists in s.3.1(1)2(iii);
- by suggesting the all other criteria under s. 3.1 of the SABS require a permanent impairment of function; and
- by ignoring the plain language of s. 3.1(1) 2(iii) and failing to interpret this provision in an inclusive manner as required by the consumer protection nature of the SABS.
Divisional Court Decision
The Court highlighted that the standard of review is one of correctness and an appeal to the Divisional Court from a decision of the LAT is on a question of law only.
The Court noted that Adjudicator Boyce applied the modern and proper approach to his interpretation of s. 3.1(1) 2. iii.
The Court rejected the first ground of appeal and held that the adjudicator accepted all the facts contained in the agreed statement of facts as requested. In this regard, the Court held that, in the agreed statement of facts, the parties agreed that the claimant’s functional mobility had improved from an SCIM score of 4 on September 11, 2018 to a score of over 5 in June 2019. The Court noted that these are facts “which, on their face, led to the conclusion that the appellant’s mobility impairment of 4 on the SCIM was not permanent.”
Accordingly, the court held that, “having correctly determined that s. 3.1(1) 2. iii required the functional impairment to be permanent, Adjudicator Boyce correctly concluded that the appellant had not satisfied that requirement.”
As such, the Court held that the decision of the adjudicator was correct in law in both the LAT decision and reconsideration, and the appeal was dismissed.
This was the first time the LAT and the Divisional Court considered the application of s. 3.1(1) 2. iii of the SABS. As set out by the Divisional Court, the adjudicator correctly determined that s. 3.1(1) 2. iii requires the functional impairment to be permanent.
As such, an insured who suffers a severe and permanent alteration of the structure of the right leg, but is not left with a severe and permanent alteration of the function of that leg generating a SCIM score of 0 to 5, will not be considered catastrophically impaired pursuant to s. s. 3.1(1) 2. iii of the SABS.
 2021 ONSC 8466
 2020 CanLII 98722 (ON LAT).
 2021 CanLII 30271 (ON LAT).
What's Happening at Rogers Partners
- We’re pleased to welcome Nicholas Fernandes to the firm as an associate lawyer. Nicholas started with us in January 2022.
- In January 2022, an article by Kayley Richardson was published in Ontario Accident Benefit Case Summaries. The article is called “Income Replacement Benefits And CERB: To Deduct Or Not To Deduct? – Take 2”.
- In March 2022, Meryl Rodrigues presented at the Osgoode Personal Injury Law and Practice conference. Meryl spoke on “The Latest in Damages”.
- Stephen Ross recently presented at a Law Society of Ontario conference called “Substantive Law for Litigators: Torts”. The conference was in March 2022, and Stephen’s topic was “Municipal and Government Liability”. Natalia Sheikh co-authored a paper with Stephen for the conference.
- Kevin Adams is co-chairing The Advocates’ Society LAT Advocacy Conference in May 2022.
- Alon Barda will be presenting on “Top Cases and Recent Trends at the LAT” at The Advocates’ Society LAT Advocacy Conference.
- In April 2022, Kevin Adams will be involved in an Osgoode program called ”Motor Vehicle Accident Law and Practice: Tort and Accident Benefits”. Kevin is presenting on loss transfer and priority disputes.
- In July 2022, Tom Macmillan will be a panelist at The Advocates’ Society’s program on Cybersecurity and Privacy Law for Litigators.
- Stephen Ross has been recognized by his peers for inclusion in the 2022 Canadian Lexpert Directory.
- Rogers Partners is a proud supporter of the Starlight Insurance Charity Campaign, which is having its annual gala on May 7, 2022.
- See the RP Blog for regular updates on the law and our firm.
From the Desk of Kathryn Orydzuk
With International Women’s Day falling last month, I took some time to reflect on my experience as a young woman in the legal profession and the particular challenges and opportunities that I have encountered in my almost three years of practice.
This reflection is not meant to be a comprehensive analysis of the challenges that women in the legal profession face, nor am I going to touch upon the topic of intersectionality, which is absolutely deserving of attention, but is beyond the scope of my personal reflection here.
In my year of call (2019), the Law Society of Ontario’s Annual Report published that in total, 43.5% of licensees were female. Interestingly, of the licensees under the age of 30, 2,301 were female and 1,672 were male, which indicates that there were more female lawyers under the age of 30 than male. Indeed, according to this report, females out-represent males in practice up to the age of 49. This is contrasted with the category of those practicing over the age of 65, in which there were 7,640 males versus 1,617 females.
This increase in female representation, however commendable, does not appear to tell the whole story. There are a multitude of fantastic articles written by female lawyers more experienced and familiar with the academic study of the challenges that women face when practicing in the male-dominated field of law than me that I have come across over the past few years. I especially enjoyed Canadian Women in the Legal Profession: From Non-‘Persons’ to Chief Justices by Sara Collin, Women in the Ontario Legal Profession: Change and Continuity – or Tranformation? by Mary Jane Massman and The invisible women: Women in Law Summit explores how to help women lawyers and partnership numbers by Anita Balakrishnan.
While there are many challenges highlighted by the aforementioned lawyers and scholars, there was one observation that resonated with me in particular. Firstly, a number of articles addressing this subject touch on the topic of the lack of retention of female lawyers in the profession, in other words, the “exodus” of female licensees from the profession in comparison to their male counterparts. This trend shows up particularly in the statistics surrounding the number of female partners versus males.
In particular, with regard to the “exodus”, Sara Collin’s article referenced the three main reasons cited by the Canadian Bar Association as follows: discrimination, carrying a heavier load of childcare and domestic duties, and a lack of work-life balance.
Personally, and in speaking with my fellow female lawyers, I believe that there is a true and deep-seated fear associated with these considerations. For example, when we turn our minds to the future of our personal lives, especially with regard to growing our families, the questions inevitably creep in: Will I fall behind my peers? Will my career trajectory suffer? Will I be able to maintain the same pace of work? If not, what does that mean for my advancement in the firm? Will my colleagues resent me for having to take over my workload while I am on leave? Will my clients forget about me and move on to another lawyer? And, ultimately, will I continue my practice?
My understanding is that these questions are directly related to the knowledge that women tend to carry a heavier load of childcare and domestic duties. It also speaks to the persisting systemic problem identified in the aforementioned articles that women must try much harder and be significantly better before they get equal recognition to their male counterparts.
For me, at least, there has been some mental reprieve from these pressures as I have had the opportunity to witness many counsel practicing successfully while maintaining that critical work-life balance. This highlights why the representation in the profession of female lawyers is important to me. Representation allows me to see with my own eyes that my fears can be managed; that the issues I have identified can be addressed.
I was exceptionally fortunate to have Kari Barry, a female lawyer practicing in Sault Ste. Marie, as my articling principal. From Kari, I received the best substantive legal mentorship a budding lawyer could ask for. I was instilled with a strong foundation of legal ethics and I learned top-tier strategies for practice, all while getting hands-on file experience. I use those skills everyday.
However, as I enter this stage of my life and practice, and as I write this reflection, I find myself thinking more on some of the non-legal things I learned from Kari as she mentored me. This is a critical point that I want to make in this reflection – the importance of female mentorship is more than the items listed in the articling rubric and it is more than learning the substantive law of the practice. It is gaining an understanding of how we, as female lawyers, can navigate the often treacherous waters in the profession that lead to the aforementioned “exodus”.
Near the end of my articling period, Kari welcomed her third son into the world. I was able to observe Kari’s commitment to both her family and her practice during my time with her. I personally witnessed her many successes in both areas. When the questions and doubts start to creep in, I consider myself lucky to have Kari’s example to refer back to and to gain the courage to proceed as I truly wish, without letting my fears hold me back.
My fortune continues with Rogers Partners LLP where I not only have the opportunity to receive the benefit of mentorship from more experienced female partners and associates, but I have the honour and privilege of working with newer calls and students as well. Given the impact that my mentorship experiences have had on me in shaping the lawyer that I am becoming, I do not take this responsibility lightly.
I hope that this reflection has communicated to you, the reader, the specific reasons why female representation and mentorship have had a positive impact on me, and I hope it gives some indication of the ways that the profession stands to benefit from addressing the particular challenges that female lawyers face.