Summer 2023 – 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.
The Ontario Superior Court of Justice recently released its decision on a summary judgment motion in Walpole v. Brush, 2023 ONSC 4869. The decision addresses the liability of a landlord for a dog bite on its premises, when the premises has been rented out to tenants.
The plaintiffs were visiting the defendants, Tammy Brush and Larry Osterag (the “Tenants”), at the home the two rented. The home was owned by the defendants Julian Crisol and Marianette Crisol (the “Landlords”). The Landlords knew that the tenants were keeping a dog on the property.
While the plaintiffs were visiting the tenants, one of the plaintiffs was attacked by the tenants’ dog, Chestnut. The Landlords were not present on the property at the time of the attack. The plaintiffs sued both tenants and the Landlords for damages to compensate for the injuries caused.
The Landlords brought a motion for summary judgment, seeking dismissal of the action as against them. They argued that the Dog Owners’ Liability Act places the entirety of the liability for the dog bite at the feet of the Tenants (who owned the dog), and that the Occupiers’ Liability Act does not apply in the circumstances.
The plaintiff argued that the dog involved constituted a hazard on the property, and therefore the landlords could be held liable pursuant to the Residential Tenancies Act.
As with any motion for summary judgment, the Landlords were required to prove that there was no genuine issue for trial. This case required Justice S. E. Fraser to examine the intersection of the Dog Owners’ Liability Act, the Occupiers’ Liability Act, and the Residential Tenancies Act, to determine if any liability could be found against the Landlords due to the behaviour of the tenants’ dog.
The Dog Owners’ Liability Act imposes strict liability on owners of dogs involved in bites or attacks on another person or animal. Section 2 of the Act states:
(1) The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal.
(3) The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages.
Section 3 of the Dog Owners’ Liability Act addresses the issue of the applicability of the Occupiers’ Liability Act. Section 3(1) states:
Where damage is caused by being bitten or attacked by a dog on the premises of the owner, the liability of the owner is determined under this Act and not under the Occupiers’ Liability Act.
A final statute to consider in this case is the Residential Tenancies Act, 2006. Section 20 of the Residential Tenancies Act creates a statutory duty on a landlord to keep a property in good repair. Section 20(1) states:
A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
Section 22 of the Residential Tenancies Act creates an obligation on the landlord to ensure that maintenance standard are complied with. Finally, the claimants argued that Section 44 of the Residential Tenancies Act also creates a duty that any interior common areas, including corridors, vestibules and lobbies, are kept clean and free of hazards. It was the argument of the plaintiffs in this action, that the dog Chestnut constituted a hazard on the property that the Landlords had a responsibility to rectify.
The first matter to be addressed was whether the Occupiers’ Liability Act could apply against the Landlords as the owners of the property. In this case, the incident happened within the home of the Tenants and clearly on their property.
Because the incident happened on the property that was leased to the owners of Chestnut, section 3(1) of the Dog Owners’ Liability Act was applied, and it was determined that the Landlords could not be held responsible under the Occupiers’ Liability Act as it did not apply in these circumstances.
Interestingly, the Court noted that if the attack had occurred on property that is not the property of the owner of the dogs, section 3(1) of the Dog Owners’ Liability Act would not apply, and therefore it is possible that liability in cases where dog bites occur on the property of others or in public, may be transferred to occupiers of the premises in accordance to the Occupiers’ Liability Act.
One can imagine a situation where owners of a dog boarding facility, for example, may be liable under the Occupiers Liability Act for a dog attack on their property if they failed to properly secure the dogs.
The second matter to be addressed was the applicability of the various sections of the Residential Tenancies Act. Justice Fraser determined that the intent of the provisions of the Act was not to create liability for landlords whose tenants had pets. In fact, it was noted that the Residential Tenancies Act specifically prevents landlords from excluding pets from their lease.
It was further noted by the Court that sections 20 and 22 of the Residential Tenancies Act relate to the maintenance standards of the property. Finally, the Court determined that section 40 of Residential Tenancies Act did not apply as the attack took place in a home, which was a rental unit, and not a common area of a residential complex.
Conclusion and Takeaways
Upon determining that neither the Residential Tenancies Act or the Occupiers’ Liability Act applied in these circumstances, the Landlords were granted summary judgment and the action against them was dismissed. The action against the Tenants was allowed to proceed.
This case is interesting for its use of creative arguments in an effort to bring more parties into the lawsuit, including the use of the Residential Tenancies Act as a basis for potential liability against a landlord where their tenant owns a dog.
It is also clear that the location of a dog attack is quite important for the application of the Occupiers Liability Act. This case leaves open the possibility for the occupier of a premises where a dog attack occurs, involving a dog that does not belong to the occupier, to be held liable for the dog attack pursuant to the Occupiers’ Liability Act. Parties to a potential dog attack lawsuit should be aware of the importance of location in the application of the law to such actions.
It is clear from this case, however, that landlords will not be held responsible for a dog attack that occurs at the dog’s owner’s residence, only by virtue of being the landlord of the premises.
In Morris et al. v. Prince et al.  the plaintiff was involved in a pedestrian accident, wherein he was hit by the defendant, operating a pickup truck. The plaintiff commenced an action against the defendant driver as well as the City of London.
One of the major issues to be determined, and what I will be specifically focusing on, is if the City of London breached its duty of care or failed to keep the subject intersection in a state of repair, and was therefore liable for the plaintiff’s damages.
The plaintiff claimed damages resulting from injuries suffered when he was struck by a motor vehicle while crossing Fanshawe Park Road West at its intersection with Aldersbrook Gate in the City of London. The plaintiff was walking northbound along the pedestrian crosswalk on the west side of the intersection, and he was struck by a pickup truck driven by the defendant as he was turning left from Aldersbrook Gate onto Fanshawe Park Road.
At the time of the accident the visual condition of the intersection was as follows: the sun had set, a light rain was falling, the truck’s driver-side window was tinted, and the pole supporting the traffic signal and two overhead lights on the centre median of the west pedestrian crosswalk was missing, as it had been knocked down a month prior (the traffic light was on a temporary structure).
The plaintiff claimed negligence against the driver of the defendant vehicle and the Corporation of the City of London. A third party claim had been commenced against Guild Electric Ltd.
The issues to be decided at trial were:
- Did the City of London fail to maintain the intersection in a “state of repair” by virtue of failing to replace the missing lights, thereby breaching its duty of care owed to users of its roads?
- If yes to issue 1, was the intersection deemed to be in a “state of repair” by virtue of the minimum maintenance standards provided for in regulations enacted under the Municipal Act, 2001?
- If no to issue 2, did the state of non-repair of the intersection cause the plaintiff’s injuries?
- Is Guild Electric liable for any portion of the damages for which the City is liable?
- If the City and/or Guild are liable for the losses suffered by the plaintiff, what is the apportionment of liability?
- Quantum of damages to which the plaintiffs are entitled arising from the injuries suffered by the plaintiff in the collision.
I will specifically be discussing the liability of the City of London as outlined in Issue #1 and #2.
Section 44 of the Municipal Act, outlines the duty of care and remedy, if the duty of care is breached:
44. (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
(2) A municipality that defaults in complying with subsection (1) is subject to the Negligence Act, liable for all damages any person sustains because of the default.
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) it did not know and could not reasonably have expected to have known about the state of repair of the highway or bridge;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.
(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them.
(5) The minimum standards may be general or specific in their application.
The Court of the Appeal, in Fordham v. Dutton-Dunwich (Municipality)  laid out the four-step test for analysing a cause of action against a municipality for non-repair:
- Non-repair: the plaintiff must prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair;
- Causation: the plaintiff must prove the “non-repair” caused the accident.
- Statutory Defences: Proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies.
- Contributory negligence: a municipality that cannot establish any of the three defences in s. 44(3) will be found liable. The municipality can, however, show [another defendant]’s driving caused or contributed to the plaintiff’s injuries.
The court noted that a municipality must keep its roads in a reasonable state so that users of the road may travel upon them safely, but a municipality is not an insurer of the safety of the users of its roads and cannot be held to a standard of perfection. What constitutes a reasonable state of repair depends on the various facts and is ultimately determined on a case-by-case basis.
The standard of care of a municipality must meet in fulfilling its duty of reasonable repair was laid out by the Court of Appeal in Fordham. Fordham outlines that a municipality’s standard of care is to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. This is not a measure of perfection.
However, the standard of care for road authorities rests on the notion of the ordinary motorist driving without negligence. An ordinary driver is expected to adjust his or her behaviour according to the nature of the roadway and the driving conditions. If a driver does not adjust their driving accordingly, they cannot sustain an action for negligence against the municipality even where the conditions of a road present a hazard.
According to Fordham, the City of London owed a duty to the defendant driver (who was the only driver involved) to replace the missing lights within a reasonable time, provided that the defendant driver, at all material times, was an ordinary driver exercising reasonable care.
The question to be determined was whether the defendant driver paid attention to his surroundings and otherwise exercised reasonable in the circumstances, and therefore would be considered to be exercising reasonable care.
The defendant driver testified that as he was waiting for the traffic light to turn green, he was scanning the intersection for pedestrians, but he did not see the plaintiff. However, the defendant driver was convicted of making an unsafe left turn under the Highway Traffic Act, and he admitted his guilt and negligence for making the unsafe turn. As such, the court did not accept the defendant’s driver evidence that he scanned the intersection for pedestrians before making his left turn.
In the case of the subject intersection, at the time of the accident, it would have been obvious to an attentive driver that the lights on the median were missing, thereby creating a potential hazard for pedestrians using the crosswalk. Furthermore, the defendant driver was apparently familiar with this intersection.
The defendant driver had a duty in the circumstances to adjust the manner in which he executed his left turn to account for the reduced visibility in the north section of the crosswalk. The court decided that the defendant driver ought to have reduced his speed and rolled down his (tinted) window in order to survey the crosswalk better before making his turn.
Given the conclusion that the defendant driver did not scan the crosswalk prior to commencing his turn, it was concluded that he was not an attentive driver, as such, he was a negligent driver. Therefore the municipality’s duty to the defendant driver would not be as high as laid out in Fordham. It followed that unless the lighting at the intersection equated to being in a “state of non-repair”, the City of London would not be responsible for the plaintiff’s losses.
The court noted that at the time of the accident, the crosswalk was lit by multiple sources of illumination (two overhead streetlights positioned one at each end of the crosswalk, the headlights of the stopped eastbound traffic, natural atmospheric light, the temporary traffic signal on the median and the headlights of defendant driver’s vehicle).
Therefore, there was sufficient illumination from all other sources of light to have enabled an ordinary driver exercising reasonable care to detect the plaintiff while he was waiting to cross and then walking on the crosswalk.
As such, given the other sources of illumination, it was concluded that the intersection was in a reasonable state of repair.
The court discussed Issue #2 in case it was determined that Issue #1 was wrongly decided. The available defences were discussed, particularly the defence of the minimum maintenance standards in the Municipal Act. Section 10 of the MMS deals with the minimum standard for streetlights (referred to as luminaires).
On December 21, 2015, s. 10(1) read as follows: For conventional illumination, if three or more consecutive luminaires on a highway are not functioning, the minimum standard is to repair the luminaires within the time set out in the Table to this section after becoming aware of the fact.
Pursuant to clause 10(5)(a) of the MMS (as it read in 2015, at the time of the accident), luminaires are deemed to be in a state of repair for the purpose of subsection (1), if the number of non-functioning consecutive luminaires does not exceed two.
Accordingly, it is a complete defence to the plaintiff’s claims if it is found that the number of non-functioning consecutive streetlights at the time of the collision was less than three.
There were only two non-functioning streetlights at the subject intersection at the time of the accident. There were other non-functioning streetlights on the street where the accident occurred, but they were not consecutive to the subject intersection. As there were no more than two consecutive streetlights on the subject road that were non-functioning, the missing streetlights were deemed to be in a state of repair.
The City of London would be able to rely on the defence that they met the minimum maintenance standards at the time of the accident.
It can be challenging to establish negligence as against a municipality given the Municipal Act and the case law, in the case of a motor vehicle accident. The standard of care a municipality must meet is to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. The key is that the drivers must be exercising reasonable care at the time of the accident, and whether that was the case is determined on a case-by-case basis. Morris v. Prince, 2023 ONSC 3922 (CanLII), <https://canlii.ca/t/jz36x>  Ferguson v. The Corporation of the County of Brant, 2013 ONSC 435 (CanLII), <https://canlii.ca/t/fvqm3>
The recent decision of the Ontario Superior Court of Justice in Armstrong v. Farahi, 2023 ONSC 5069 dealt with a motion to dismiss a defamation action as an impermissible SLAPP (Strategic Lawsuits Against Public Participation) lawsuit.
The defendant Amir Farahi wrote a Column in London newspaper Our London on February 2, 2017 about then-London City Councillor William Armstrong. In this article, Farahi raised questions about Armstrong’s approach to conflicts of interest due to Armstrong voting in favour of constructing the East London Community Centre in East Lions Park “despite owning a rental property at a location that puts him in the notification zone” for the proposed building site.
Armstrong served a libel notice to the newspaper, which led the newspaper to subsequently publish a correction and apology to Armstrong.
Armstrong issued a statement of claim for defamation in the amount of $250,000 against Farahi, the newspaper, and the newspaper’s owner. The defendants brought a motion for an order dismissing the defamation action as an impermissible SLAPP lawsuit.
Section 137.1 of the Courts of Justice Act (“CJA”) aims to prevent SLAPP lawsuits that unduly limit freedom of expression on matters of public interest.
Under the s. 137.1 analysis, the defendant first bears the burden to satisfy the court that the proceeding arises from an expression made by the defendant, and that the said expression relates to a matter of public interest. If the defendant fails to discharge its burden, the motion is dismissed.
However, if the defendant meets this threshold, the burden then shifts to the plaintiff to satisfy the test under s. 137.1(4) of the CJA, that:
a. There are grounds to believe that the proceeding has substantial merit;
b. There are grounds to believe that there is no valid defence(s) to the claims; and
c. The harm suffered by the plaintiff as a result of the defendants’ expression is sufficiently serious that the public interest in permitting the plaintiff’s action to proceed outweighs the public interest in protecting the defendants’ expression.
Does the action arise from an expression relating to a matter of public interest?
To satisfy the threshold burden, the moving party must show on a balance of probabilities that the proceeding arises from an expression made by the moving party, and that the expression relates to a matter of public interest (1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 [“Pointes”]).
Armstrong conceded that the Column is an expression relating to a matter of public interest, satisfying the defendants’ threshold question.
Are there grounds to believe that this proceeding has substantial merit?
To satisfy this burden, the plaintiff must show that the defamation action has a “real prospect of success” and must be “legally tenable and supported by evidence that is reasonably capable of belief” (Pointes, at para. 49).
To do so, the plaintiff must establish three elements:
a. The words complained of were published, meaning that they were communicated to at least one person other than the plaintiff;
b. The words complained of referred to the plaintiff; and
c. The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.
The defendants conceded the first two elements of the test. Justice Cook found that the third element was also established, drawing on the decision in Roshard v. St. Dennis, 2013 BCSC 1388, at para. 26, wherein an allegation of a public official acting within a conflict of interest was found to be damaging and actionable in defamation.
Are there grounds to believe that the defendants have no valid defence?
To satisfy the second part of the merits hurdle, the plaintiff must show that “there are grounds to believe that the defences have no real prospect of success.” (Pointes, at para. 59). The defences raised were that of fair comment and responsible communication.
The plaintiff argued that both defences raised must fail because the publication was malicious. However, Justice Cook did not accept that the Column was so reckless that it could amount to malice. In Botiuk v. Toronto Free Press, 1995 CanLII 60 (SCC),  3 S.C.R. 3, at pp. 34-35, the Court held that malicious conduct is not established merely by relying “solely on gossip and suspicion”.
Justice Cook pointed out that Farahi wrote only one article on Armstrong, though he wrote about municipal issues over the course of four years at Our London. Thus, Armstrong did not establish that the defences failed on the ground of malice.
Fair Comment on a Matter of Public Interest
Armstrong conceded that the Column amounted to expression on a matter of public interest, thereby shifting the onus of the plaintiff to show grounds to believe that the defendants cannot establish an element of the defence such that the defence has no real prospect of success.
Was the Expression Recognizable as a Comment?
A fair comment must be one that would be understood by a reasonable reader as a comment, rather than a statement of fact. Justice Cook was satisfied that Armstrong had established grounds to believe that the defendants could not establish that the Column was recognizable as a comment.
The defendants themselves granted that the Column may not be recognized as opinion, going so far as seeking Armstrong’s comment prior to publication. Therefore, the defence of fair comment is not available, on the basis that the Column was not recognizable as opinion.
Responsible Communication on a Matter of Public Interest
The defence of responsible communication on matters of public interest requires the defendants to prove that:
a. the publication was on a matter of public interest; and
b. the publication was responsible in that the defendants were diligent in trying to verify the allegations made.
With the first element already satisfied, the judge needed to assess the adequacy of the publisher’s diligence. Justice Cook found that the defendants were not reasonably diligent in verifying the fundamental facts in the Column and post-publication conduct was not considered as relevant in assessing the adequacy of the due diligence. Thus, the defence of responsible communication was unavailable in the circumstances.
Does the public interest in permitting the proceeding to continue outweigh the public interest in protecting the expression?
Section 137.1(4)(b) of the CJA requires the plaintiff to prove on a balance of probabilities that, due to the harm likely to have been or to be suffered by him as a result of the Column, “the public interest in allowing the underlying proceeding to continue outweighs the deleterious effects on expression and public participation” (Pointes, at para. 82).
The harm analysis involves consideration of the harm suffered or likely to be suffered by the plaintiff as a consequence of the defendant’s expression. The presumption of damages in defamation is itself sufficient to demonstrate the existence of harm caused by the expression. Accordingly, the harm analysis was satisfied.
The weighing exercise requires the court to consider “what is really going on in the case” with a view to striking the appropriate balance between the protection of individual reputation and freedom of expression, the competing values at the heart of anti-SLAPP legislation (Pointes, at para. 81).
Justice Cook found that Armstrong had not discharged his burden of demonstrating that the harm he suffered is sufficiently serious that the public interest in letting him proceed with this action outweighs the public interest in protecting the political expression involved.
This case bore hallmarks of an impermissible SLAPP lawsuit:
- This action is the plaintiff’s second defamation case involving expressions on matters of public importance, with the first action being dismissed by the Court of Appeal as an impermissible SLAPP lawsuit;
- The plaintiff issued his claim in April 2017 but did not serve it until late 2017, potentially for the strategic purpose of intimidating Farahi during the election cycle; and
- The plaintiff did not present evidence of substantial damages suffered as a result of the Column.
Armstrong failed to satisfy the Court that the harm that he suffered due to the Column was sufficiently serious that the action should be permitted to proceed.
The motion was allowed, and the action was dismissed.
Despite the low evidentiary bar in anti-SLAPP motions, it is potentially crucial for the plaintiff to present evidence of harm suffered if one is to be successful in showing that the public interest in permitting the proceeding to continue outweighs the public interest in protecting expression.
Further, the plaintiff’s history of previous defamation actions and the use of SLAPP lawsuits as strategic tools to intimidate could negatively affect the outcome of future SLAPP lawsuits.
By Nasra Esak
What happens when a passenger of a stolen vehicle, who is unaware that the vehicle is being driven without consent, is injured in a subsequent motor vehicle accident? Is the passenger excluded from receiving coverage from the owner’s insurer under the standard Ontario Automobile Policy (“Policy”)? The Ontario Court of Appeal recently clarified this issue in Burnham v. Co-operators General Insurance Company, 2023 ONCA 384.
The plaintiff was a passenger in the back seat of a stolen pick-up truck involved in a motor vehicle accident on August 25, 2014. The driver of the stolen vehicle was killed due to the collision and the plaintiff sustained serious injuries. The plaintiff alleged to be asleep during the accident and claimed to have no reason to believe that the vehicle was stolen. The owner of the vehicle was insured by the Co-Operators General Insurance Company (“Co-Operators”) and reported the vehicle as stolen on August 22, 2014.
The plaintiff brought two actions. He brought one against the uninsured driver of the stolen vehicle, and another against Co-Operators, the insurer of the vehicle. In his action against Co-Operators, the plaintiff sought recovery for any damages caused by the negligent operation of the vehicle, pursuant to the uninsured motorist provisions of the Policy.
The Co-Operators brought a Rule 21 motion on the grounds that the plaintiff had no cause of action and alleged that Section 1.8.2 of the Policy prohibits coverage when the vehicle under the Policy is driven without consent.
The motion judge ruled in favor of the Co-Operators and held that the plaintiff had no cause of action as his claims for uninsured motorist coverage were precluded under the Policy, regardless of whether he was aware the vehicle was stolen at the time of the accident. The motion judge dismissed the plaintiff’s claim against the Co-Operators, which resulted in liability for the Motor Vehicle Accident Claims Fund (the “Fund”).
The Minister of Public and Business Services (the “Minister”) appealed the decision on behalf of the Fund. The plaintiff did not participate in the appeal.
Issue on Appeal
Did the motion judge err in his interpretation of s. 1.8.2 of the Policy by finding that plaintiff, who was a passenger of a stolen vehicle, was precluded from uninsured motorist coverage under this exclusion in the Policy, even if the allegation that he did not know the vehicle was stolen were proven to be true?
Court of Appeal’s Decision
Uninsured automobile coverage is a statutory requirement included in every motor vehicle liability insurance policy, subject to limitations provided by in s.265 of the Insurance Act. The Policy is a statutory contract that includes uninsured automobile coverage but also includes certain exclusions. The exclusion at issue in this appeal, Section 1.8.2, reads as follows:
1.8.2 Excluded Drivers and Driving Without Permission
Except for certain Accident Benefits coverage, there is no coverage (including coverage for occupants) under this policy if the automobile is used or operated by a person in possession of the automobile without the owner’s consent or is driven by a person named as an excluded driver of the automobile policy or a person who, at the time he or she willingly becomes an occupant of an automobile, knows or ought reasonably to know that the automobile is being used or operated by a person in possession of the automobile without the owner’s consent.
Except for certain Accident Benefits coverage, there is no coverage under this policy for a person who, at the time he or she willingly becomes an occupant of an automobile, knows or ought reasonably to know that the automobile is being used or operated by a person in possession of the automobile without the owner’s consent.
The Court of Appeal held that since the exclusion provision arises from a statutory contract, the principles of statutory interpretation apply. As such, the statutory provisions are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature.
The Court of Appeal considered the two paragraphs of s.1.8.2 and held that each of the paragraphs appear to exempt certain passengers from the exclusion who are unaware that the vehicle they are traveling in is being driven without consent. Considering the above, the Court held that the questions which must be considered are, which passengers are covered by the exemption, and if the plaintiff falls into the exempted category.
Position of the Parties
The Co-Operators submitted that, based on the clear and unambiguous language of the Insurance Act, there is no coverage for any occupant of a vehicle insured under the Policy once it is driven without the consent of the owner.
The Minister, on behalf of the Fund, submitted that the Policy was amended in 2010 to ensure parties in the position of the passenger with no knowledge that the insured vehicle is stolen would be exempt from the exclusion in s. 1.8.2. He considered the distinction between “an automobile”, as utilized in the 2005 legislative amendment to the provision, and “the automobile” as reflected in the 2010 amendment of the Policy.
The Minister argued that the amendment to “the automobile” and the knowledge requirement added to the first paragraph, expanded coverage to include innocent passengers with no knowledge that the insured vehicle was operated without consent. By this interpretation, the plaintiff could claim coverage under the Co-Operators policy.
The Minister also submitted that the Co-operators’ reading of s. 1.8.2 is contrary to the principles of statutory interpretation and overlooks the legislative purpose of the provision to expand coverage to innocent passengers.
Court of Appeal Analysis
The Court of Appeal held that the motion judge erred in his interpretation of the Policy as excluding coverage for the plaintiff. The Court noted that they favored the interpretation advanced by the Minister for the following reasons:
- This interpretation flows from the text of the first paragraph of s. 1.8.2 which excludes coverage to occupants of a stolen vehicle, where those occupants know or ought to know the vehicle is being driven without permission of the owner;
- This interpretation allows for a coherent distinction between the two paragraphs which comprise s. 1.8.2 of the Policy, with the first paragraph exempting an innocent passenger in the insured, stolen vehicle (“the automobile”), and the second paragraph dealing with a passenger covered by the Policy in any stolen vehicle other than the insured vehicle (“an automobile”);
- This interpretation accords with the legislative history and the goal in the 2010 amendments of addressing the gap left by the 2005 amendments regarding innocent passengers in an uninsured vehicle; and
- This interpretation is consistent with the legislative intent of the Policy to increase insurance coverage for uninsured vehicles and decrease recourse to the Fund.
As such, the Court of Appeal set aside the dismissal of the action and held that the motion judge erred in his interpretation of the Policy excluding coverage for the plaintiff.
This decision by the Ontario Court of Appeal clarifies the interpretation of insurance provisions in the context of unauthorized automobile use and emphasizes the importance placed by the courts in safeguarding the needs of innocent parties when interpreting legislation.
This case should provide notice to insurers that the courts will interpret insurance provisions in accordance with the legislature’s intent and that exclusion provisions will be interpreted and applied, in cases such as this, narrowly.
 Insurance Act, R.S.O. 1990, c. I.8
 As confirmed in Rizzo & Rizzo Shoes Ltd. (Re),  1 S.C.R. 27
Section 3 of the Statutory Accident Benefits Schedule (“SABS”) defines the term “accident” as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical device”. A claimant is not able to receive SABS if the incident giving rise to the injury is not defined as an “accident”.
If this is an issue, The Licence Appeal Tribunal (“Tribunal”) can, usually as a preliminary issue hearing, make a determination on what is an “accident” for the purposes of receiving SABS. This decision can be sent for a Reconsideration Decision and then appealed to the Divisional Court should a party feel that the Tribunal made an incorrect finding. This was the situation in Madore v Intact Insurance Company, 2023 ONSC 11.
The appellant, Clayton Madore (“the appellant”) appealed the decision of first instance and reconsideration decision of Adjudicator Grant from the Tribunal which held that his fall from his insured camper trailer was not an “accident” as defined by the SABS. The finding of Adjudicator Grant meant that the appellant was not able to receive accident benefits, despite having sustained serious injuries in his fall.
The appellant was inspecting and cleaning the roof of his “fifth wheel” camper trailer to ensure its safety for highway travel in preparation for a family road trip on the date of the incident.
In the course of the inspection, the appellant fell off of the roof of the trailer. He sustained numerous injuries including a fractured skull, broken left ankle and double wrist fracture, nerve damage in his right ear resulting in hearing loss in both ears and nerve and retinal damage to his right eye as a result of the fall. The appellant had no recollection of the incident of the fall largely due to his injuries. There were no witnesses to his fall.
The Tribunal Decision
At first instance, the Tribunal found that the incident did not meet the definition of “accident” under s.3(1) of the SABS. In order for an incident to be considered an “accident” under the SABS it must meet the purpose test and causation test (Greenhalgh v Ing Halifax Insurance Co., 2004 CanLII 21045 (“Greenhalgh”)).
The Adjudicator found that the incident satisfied the “purpose test”: whether the incident arises out of the ordinary and well-known activities for which automobiles are used. It was held that cleaning the trailer was found to be an ordinary activity for which automobiles are used.
The incident failed on the second test, the “causation test”: whether the use or operation of the automobile directly caused the impairment and whether there was any intervening act that resulted in the impairment that cannot be said to be part of the “ordinary course of things”.
The Adjudicator found that that there was no evidence that the appellant had tripped on the roof of the trailer or pickup truck, or had struck either of them as he fell, or that the “trailer itself caused the fall.” The Adjudicator held that there was no evidence of direct causation, stating that the “loss of footing due to misfortune” was not part of the “ordinary course of things.”
The appellant’s request for reconsideration was dismissed.
Finding at Divisional Court
The Divisional Court overturned the decision of the Tribunal and found in favour of the appellant finding that the incident giving rise to his injuries was an “accident” as defined by the SABS. The appellant was found to have access to accident benefits.
The Divisional Court found that the Adjudicator “introduced a requirement” that, in addition to proving the injury arose out of the use or operation of the trailer, the appellant must also prove that his fall was caused by “tripping on some part of the trailer” and “that the injuries were directly caused by the trailer” to establish the direct causation of the appellants injuries.
It was found that there is ample case law support that contact with an automobile is not a requirement to meet the definition of “accident” under the SABS. The Divisional Court further stated that the requirement from the Tribunal that the appellant’s fall “was the result of tripping on some part of the trailer” is contrary to the Court of Appeal’s decision in Greenhalgh.
The test to determine if an incident is an “accident” as defined by the SABS is:
- Did the incident arise out of the use or operation of an automobile (purpose test)?
- Did such use or operation of an automobile directly cause the impairment (causation test)?
The Divisional Court held that the appellant “did not need to prove a direct physical connection between the cause of injury and an automobile” and only had to show that he was injured in the course of cleaning and inspecting the roof of his trailer.
It was held that the Adjudicator erred in holding that the appellant’s “loss of footing, due to misfortune” was an intervening act. Ultimately, the Divisional Court concluded that it was “speculative to conclude that Madore fell due to “loss of footing, due to misfortunate”, and that “misfortune” was an intervening act that broke the chain of causation.”
Relying on the Ontario Court of Appeal decision in Chisholm v Liberty Mutual Group, 2002 CanLII 45020 the Divisional Court stated that “an incident is not an intervening act if it is a normal incident of the risk created by the ‘use or operation’”.
The Divisional Court concluded that the appellant fell when he was physically on top of the trailer conducting an inspection and cleaning.
“Slipping and falling off a trailer that is 12 feet high must be seen as a normal incident of the risk created by such use and is reasonably foreseeable.”
The appellant was found to meet the purpose and causation test as outlined in Greenhalgh.
Finally, the Court stated that the SABS are remedial and constitute consumer protection legislation. Therefore, relying on the fact that the appellant cannot say exactly what caused his fall (because of the brain injury he sustained from the fall) as a defence for to his claim for SABS is not in keeping with the remedial nature of the legislation.
The use and operation of an automobile being the direct cause of a claimant’s injuries does not necessarily mean that the automobile has to cause the injury.
The Tribunal has on numerous occasions, as outlined by the Divisional Court, found that the use of an automobile for a normal motoring purpose (including embarking/disembarking/a circle check before starting, etc.) and that normal use causing an injury without an intervening event or force, can be enough for the causation test to be met.
The Tribunal has had varying decisions with respect to what incidents constitute an “accident” for the purpose of receiving SABS. The Divisional Court outlined many of these decisions in their own decision for this matter.
All parties will want to be aware of the latest interpretation of what constitutes an “accident” before proceeding to the Tribunal or Divisional Court and ensure that one is not importing additional requirements into the definition of an “accident”.
Effective June 1, 2016, the test for catastrophic impairment for SABS was changed from using the GCS score to the GOS-E to better reflect an assessment of the insured person’s functional ability one, six or twelve months (or more) after an accident (depending upon the level of impairment – the GOS-E test) rather than whether they initially suffered a serious enough brain injury on the day of the accident or while hospitalized immediately after (many of which heal moderately or fully – the GCS test).
There are very few LAT decisions that discuss the purpose, use, application and the other nuances associated with the Extended Glasgow Outcome Scale (“GOS-E”). The GOS-E scale is used in determining whether an applicant is catastrophically impaired in accordance with Criterion 4. Section 3.1 (1) 4 of the Schedule, known as Criterion 4, is a two pronged test that consists of the following:
a) There must be diagnostic evidence of brain trauma; and
b) The insured person must have at least an Upper Severe Disability (Upper SD or Upper SD*) or Lower Severe Disability (Lower SD or Lower SD*), six months or more after the accident or a Lower Moderate Disability (Lower MD or Lower MD*) one year or more after the accident under the Extended Glasgow Outcome Scale (“GOS-E”) when assessed in accordance with the article by Wilson, J., Pettigrew, and Teasdale, G., Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale: Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998 (the “GOS-E Guidelines ”).
There are three LAT cases which have interpreted the use of the GOS-E questionnaire: Abdi v. TD General Insurance Company (“Abdi”) , Adams v. Federated Insurance Company of Canada (“Adams”) [2}, and a recent decision by the LAT, Chaffey v Wawanesa Mutual Insurance Company (“Chaffey”) .
Purpose and Use of the GOS-E
In Chaffey, Adjudicator Hines outlined that the purpose of the GOS-E is to determine the level of disability that the applicant suffered following a head injury. The guideline provides a structured interview which is broken down into eight categories of function:
2) independence in the home;
3) independence outside the home;
4) restrictions in travel;
5) restrictions with work;
6) restrictions in social and leisure activities;
7) disruptions to relationships with family and friends; and
8) return to normal life.
The GOS-E structured interview is meant to take a snapshot of the applicant’s current status (in the past week) and does not consider past impairment or future prognosis. The interview addresses the capabilities of the individual, although does not consider the circumstances to which an individual may have the capability to perform an action but refuses to do so.
The applicant’s scores place them on a scale which has 8 levels, ranging from 1 which is death to 8 which is good recovery. Level 1-5 would represent injuries that are determined to be CAT. Level 6-8 represent injuries that are non-CAT.
In Adams, Vice Chair Lester discussed the parties’ approach to answering the questions in the GOS-E questionnaire. It was noted that the GOS-E was not intended to provide detailed information about specific difficulties faced by individual patients, but to give a general index to overall outcome. This means that assessors must contemplate the responses as a general index of overall capabilities and not in consideration of the specific details of the person’s individual circumstances.
The applicant’s assessors took an overly specific view of the GOS-E questionnaire and answered each question contemplating every intricate detail concerning the applicant.
The respondent took a more generalized approach to the GOS-E questionnaire and answered the questions with an overall view of whether the applicant is capable of completing the task and how the applicant reacts when an error is made.
The adjudicator felt the respondent’s approach more in line with the purpose and scope of the GOS-E questionnaire.
Who should administer the GOS-E?
In determining whether the injury meets the designation of catastrophic impairment, section 45 (2) of the Schedule states the following:
(2) The following rules apply with respect to an application under subsection (1):
1. An assessment or examination in connection with a determination of catastrophic impairment shall be conducted only by a physician but the physician may be assisted by such other regulated health professionals as he or she may reasonably require.
2. Despite paragraph 1, if the impairment is a traumatic brain impairment only, the assessment or examination may be conducted by a neuropsychologist who may be assisted by such other regulated health professionals as he or she may reasonably require.
In Abdi, Adjudicator Neilson noted that both the applicant’s and the respondent’s occupational therapist completed the GOS-E, rather than their neuropsychologists. As such, the reports did not comply with s.45(2).
In Adams, Vice Chair Lester discussed this further and noted that responses to the GOS-E questionnaire require judgment and insight into the TBI to determine whether the incapability stems from the effects of the TBI or another impairment. An occupational therapist can only assess the applicant`s function, as such, the occupational therapist must play a secondary role.
In Chaffey, Adjudicator Hines found the interpretation of s.45(2) in Abdi and Adams, persuasive. She agreed that clinical judgment is required in distinguishing between the impact of the brain injury on the applicant’s function versus other injuries.
As such, she agreed that a GOS-E administered by an occupational therapist should only be used as an aid. In Chaffey, both the applicant and respondent’s GOS-E assessments were administered by an OT, as such, both assessments were deemed to have limitations.
When should the GOS-E be administered?
In Abdi, it was noted that the timing of the GOS-E assessment is set out in ss. 3.1(1) 4 (ii) A to C of the Schedule. The applicant will have sustained a catastrophic impairment if he or she sustains an Upper Severe Disability or Lower Severe Disability six months or more after the accident, or a Lower Moderate Disability one year or more after the accident.
The adjudicator is required to determine if the applicant meets the test associated with the specific period outlined in the Schedule, regardless of when the assessment was conducted. As such, there is no specific timeframe for when the assessment needs to be completed.
What is the adjudicator’s Role in the GOS-E?
In Abdi, Vice Chair Lester discussed what an adjudicator’s role is in applying the GOS-E. While the adjudicator’s determination of whether the applicant sustained a catastrophic impairment involves the consideration of medical opinions, it is common knowledge that the test for catastrophic impairment is a legal test and not a medical test.
Vice Chair Lester determined that it was the adjudicator’s role to look at each part of the GOS-E checklist and determine whether the applicant could participate in the activity. If the applicant is unable to participate in activities because of their brain injury, then the adjudicator must include that in the GOS-E scale.
Vice Chair Lester noted that if the adjudicator’s role was only to decide which expert opinion was to be preferred, the matter would become a contest of experts.
In Chaffey, given the limits of the occupational therapist assessed GOS-E of both the applicant and respondent, Adjudicator Hines assessed the categories of function of the GOS-E which were in dispute to determine whether the applicant could participate in the activity.
The GOS-E needs to reflect the applicant’s functional capabilities that have been impact by the brain injury specifically.
The GOS-E is nuanced. Given those nuances, a physician or neuropsychologist is required to administer the GOS-E to determine whether the functional limitations are as a result of the brain injury suffered in the accident. An occupational therapist can administer a GOS-E, but only as an aid to the physician or neuropsychologist.
Once the parties have the reports, it is the Adjudicator’s role to assess the GOS-E. Ultimately the Adjudicator will be looking at the big picture, as the GOS-E reflects the general functional capabilities of the applicant. Abdi v TD General Insurance Company, 2021 CanLII 127474 (ON LAT), <https://canlii.ca/t/jl7cg> (request for reconsideration denied)  Adams v Federated Insurance Company of Canada, 2022 CanLII 38859 (ON LAT), <https://canlii.ca/t/jp6hb> (request for reconsideration denied)  Chaffey v Wawanesa Mutual Insurance Company, 2023 CanLII 42635 (ON LAT), <https://canlii.ca/t/jx8qj>
- Jason Frost recently joined the firm as a partner. Jason has vast experience handling statutory accident benefits claims.
- Antoinette Monardo, Jordan Petruska, and Celina Stoan (Fotiadis) recently joined the firm. They’re great additions to our talented group of associates!
- Nasra Esak, Emmanuel Couture-Tremblay, and Katrina Taibi completed their articles, were called to the bar, and are continuing with the firm as associates. Congratulations!
- We’re happy to welcome our new articling students to the firm: Megan Chan, Eli Feldman, Itai Gibli, and Samuel Pevalin. They’re off to a great start!
- Stephen Ross, Kevin Adams, Anita Varjacic, Brian Sunohara, David Rogers, and Jason Frost have been named in the 2024 edition of the The Best Lawyers in Canada.
- In April 2023, Kevin Adams spoke at the Osgoode Motor Vehicle Accident Law and Practice course on the topic of Loss Transfer and Priority Disputes.
- Stephen Ross and Anita Varjacic presented at the Ontario Bar Association’s annual Anatomy of a Trial conference in June 2023.
- Our Equity, Diversity and Inclusion Committee recently organized a cultural heritage potluck. It was a terrific success!
- Rogers Partners LLP proudly sponsored the Starlight Insurance Gala in support of Starlight Children’s Foundation Canada on their mission to brighten the lives of seriously ill children and their families – from hospital to home.
- See the RP Blog for regular updates on the law and our firm.
As another summer is ending, I look back over the past few summers and cannot help but wonder where did the time go? How did we get through the past few years? Why did we not embrace a hybrid work environment sooner? Why did we not see the value is remote court appearance for routine attendances like trial scheduling court?
These are just some of the questions that come to mind as I reflect over the past few years and look forward to another summer season.
It is hard to believe that the Covid pandemic was declared in March 2020, over three years ago. As we entered into those early days, I like many others, was foolishly optimistic that the crisis would pass in weeks, not years as turned out to be the case. As weeks turned into months, and months into years, I often wondered if it was ever going to end and if things were going to return to “normal”.
Now as we look through those dark days in the proverbial rear-view mirror, I am grateful for the positive changes that have come from this, but personally and professionally. In my humble view, the legal profession has benefited from Covid in a number of ways. Here are my top 3:
1. Virtual Court Attendances – long gone are the days when I get up at a dreadfully early hour to head to the airport to catch a flight to a far destination, without many options like Timmins or North Bay for what would end up being a 45 minute court attendance.
The shift to virtual attendance for many court attendances was long overdue in my view and has many positives. Clients benefit as they are only billed for the short time court attendance, rather than the short court time and then comparatively longer travel time and associated disbursements. Lawyers benefit in the same way, with suddenly more “free” time that would have been spent travelling.
2. Focus on Mentorship – some times you don’t know what you are missing, until it is almost gone (or if you never had it in the case of students and new lawyers who came into the profession during Covid). Mentorship of students and young lawyers was one of the first victims of Covid. I am guilty of it, as I am sure are many others. Once I became used to working at home, not interacting with others and almost even hibernating at home at times, it was easy to forget about those who still needed assistance and mentoring. It just is not the same over zoom.
The good news is that once the problem was recognized, at least in our firm, we have doubled-down and have been making a concerted effort to make mentorship a priority again. This includes formal mentorship meetings, but also informal mentorship that naturally happens in a vibrant office when people are around or can grab a coffee or a drink after work.
3. Enabling remote work – some love it, while others hate it. I believe the flexibility that a hybrid work schedule offers benefits everybody. Hopefully the days when people are coming into the office with a cold or the flu are a thing of the past. Now, people can stay home and not spread illness at the office, but they do not need to call in sick. This benefits everyone.
Our current firm policy is that everyone is required to come in the office 5 days in 10 at a minimum. The days are flexible and up to the individual. That flexibility allows everyone to create the work schedule that works best for them, depending on family requirements, personal appointments and the like. Being in the office at least half the time allows everyone to maintain work connections and enhances the office atmosphere. Win – win in my view.
There are so many other lessons learned from Covid. While there were certainly negatives from the whole experience, I prefer to look at the positives.