Thursday, April 28, 2011

McGarry v. Co-operators Life Insurance Co., 2011 BCCA 214

In interpreting an insurance policy, the British Columbia Court of Appeal in McGarry v. Co-operators Life Insurance Co. treated employee beneficiaries of the policy as third-party beneficiaries who cannot intrude upon the privity to contract between the employer and insurance provider. McGarry, the appellant, was an employee suffering from a total occupational disability who was entitled to long term disability benefits under the employer's insurance policy provided by the respondent party. The respondent claimed that while the policy mandated payment of benefits up to 65 years, the payment was capped to 2 years per the employer's application form.

Hinkson J.A., writing for the majority, held that when language of the policy is unambiguous, the court should give effect to the clear language “reading the contract as a whole”. The dispute centred on what constituted as parts of the insurance contract in question and the significant aspect of the decision lies in the clarification that the contract as a whole includes both the benefit policy itself and the employer application form. Hinkson J.A. reasoned that the master group insurance policy allowed employers such as Five Star Paving Co. Ltd to select the particular type of insurance coverage they want to be available for their employees. Therefore, the employer’s application form for such coverage is instrumental in determining the terms of the insurance policy.

Mackenzie J.A. dissented by reasoning that since policy provisions state that applications cannot conflict with policy terms, the terms of the policy must prevail over the application. He further reasoned that since employees benefitting from the insurance plan are not directly involved in contract negotiations, they inadvertently rely on the clarity and transparency of the insurance policy. Consequently, Mackenzie J.A. found that the employer application cannot amend the policy itself without infringing upon employees' expectations.

April 28, 2011
http://www.courts.gov.bc.ca/jdb-txt/CA/11/02/2011BCCA0214cor1.htm

Jen-Yii Liew & Minsuk Kim

Wednesday, April 20, 2011

Smith v. Casco Inc., 2011 ONCA 306

In Smith v. Casco Inc., the Ontario Court of Appeal considered whether, in the light of ss. 44 and 46 of the Pension Benefits Act, R.S.O. 1990, c. P.8 ("PBA"), a plaintiff is bound by a spousal waiver she signed in respect of her husband's pension. Writing for the court, Justice Gillese held that the Casco version of the spousal waiver departed in substance from the form prescribed by the Superintendent of the Financial Services Commission, and was invalid. Gillese J.A. referred to s. 28(d) of the Interpretation Act, R.S.O. 1990, c. I.11 (Int. Act) in arriving at her conclusion, noting that, while the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F (Leg. Act) had since succeeded the Interpretation Act, the Interpretation Act was in force at the time the plaintiff signed the Casco waiver, and moreover nothing in the Legislation Act suggested it was intended to apply retroactively. The appeal was dismissed.

The plaintiff’s husband worked for Casco for 39 years, and was a member of the pension plan. In about February 2000, he was offered early retirement as part of an exit incentive program which would provide for a substantial bonus payment, as well as his full pension. The plaintiff had always been entirely dependant on her husband’s income, and the Casco pension was critical to the Smiths’ retirement plans. Mr. Smith was offered 14 plan options to choose from. The option he chose would pay him more as long as he was alive, but would ultimately leave his wife without a survivor’s pension, if he predeceased her: a spousal waiver was required. Mr. Smith brought the Casco-version waiver home with him one day at lunchtime, and told his wife she had to sign. Having given the form a cursory glance, the plaintiff signed. Two weeks later Mr. Smith retired, seemingly in good health. However, three and a half years later – in December 2003 – he died of cancer. Only then did the plaintiff learn that her husband’s pension was guaranteed for only five years – or, roughly, only another year and a half. After June 2005, the plaintiff would receive nothing more. She brought an action against Casco for negligent misrepresentation in respect of the information provided to her and her husband as to the pension plan options available at the time of her husband’s retirement. The trial judge found in the plaintiff’s favour. A majority of the Divisional Court upheld the trial judge’s decision. Casco appealed with leave to the Ont. CA.

Section 46.(1) of the Pension Benefits Act provides that “persons entitled to a joint and survivor pension benefit may waive [that] entitlement … by … written waiver in the form approved by the Superintendent…” The Casco version of the waiver was not in the approved form. Gillese J.A. assumed without deciding that waiver might nonetheless be effected using a form other than the Superintendent-approved version. The question became: was the Casco version effective? Casco relied on s. 28(d) of the Interpretation Act, which provided that “where a form is prescribed, deviations therefrom not affecting the substance ... do not vitiate it”. However, Gillese J.A. found five significant differences between the Casco version and the approved form. The critical substantial deviation was this: the Casco waiver did not meet the purpose for which it was required – to advise that, by signing the form, a person waives all of his or her entitlement to a joint and survivor pension. Casco argued further for application of the doctrine of non est factum. Gillese J.A. held that, where the legislature has provided a prescribed form, that doctrine does not apply. Given her decision that the Casco waiver was invalid, Gillese J.A. held further that the question as to the plaintiff’s failure to read the document was irrelevant, and, likewise, the question of contributory negligence did not arise.

April 20, 2011
Link to Decision

Leo Elias & Liam Oster
*

Prevost v. Ali, 2011 SKCA 50

In Prevost v. Ali, the Saskatchewan Court of Appeal found that internet research done by the patient does not constitute the "outside information" necessary to negate a doctor's disclosure obligation.

The exemption for the disclosure obligation comes from Ferguson v. Hamilton Civic Hospitals, which states that outside information may negate a doctor's duty to disclose if the patient is “properly informed by or from some person or source.” As stated in Ferguson, at the heart of that analysis is the question of whether “the patient is subjected to the procedure, he or she has been properly informed by or from some person or source."

In Prevost, Jackson J.A., writing for a unanimous court, refused to apply this reasoning to a situation where the patient has conducted their own research over the internet, and it is impossible to verify the material researched, the patient’s comprehension of the material, or the material’s influence over the patient’s decision to accept the surgery. The doctor admitted that he never discussed the risks of surgery with the patient. Consequently, Justice Jackson held that the patient was not properly informed as per the Ferguson test and upheld the damage award at trial.

April 20, 2011
Link to Decision

Leo Elias & Liam Oster
*

Tuesday, April 19, 2011

R. v. Russel, 2011 ONCA 303

The Ontario Court of Appeal held in R. v. Russel that judges have the jurisdiction to set the rates of compensation for assigned amicus curiae. This case involved the appeal of four criminal proceedings, in which, for various reasons, the trial judges assigned an amicus curiae and set their rates of compensation. The Attorney General argued that while a judge is able to appoint an amicus, they do not have the power to set rates of compensation.

The Attorney General argued that the courts do not have the power to set rates of compensation for amicus curiae because they have no jurisdiction to allocate public funds. The power to allocate public funds and order payment from the Consolidated Revenue Fund rests only with Parliament or the Legislature (Auckland Harbour Board v. The King, [1924] A.C. 318 (P.C.)). The principle is recognized in Ontario through s. 11.1 of the Financial Administration Act, which states that money cannot be paid from the Consolidated Revenue Fund unless the payment is authorized by an Act of the Legislature. The Court held that the power of the court to set rates of compensation for amicus and order the payment does not contravene this principle. It is recognized by both parties that the court may appoint an amicus where it is necessary to avoid an injustice, and the power to set rates of compensation is held to be corollary. Moreover, the Court found the power to order payment of amicus from public funds is authorized in the meaning of s. 11.1 of the Financial Administration Act by both the Proceedings Against the Crown Act (s. 22) and the Financial Administration Act (s. 13), both of which state that where a court properly orders payment, it may be paid from the Consolidated Revenue Fund. A court therefore has the power to set amicus and their rate of compensation and order payment from the Crown.

April 19, 2011
Link to Decision

Mary Phan
*

Friday, April 8, 2011

Wellington v. Ontario, 2011 ONCA 274

In Wellington v. Ontario, the Ontario Court of Appeal explored the issue of whether the families of victims of crime committed by police officers have the right to sue the Special Investigation Unit ("SIU") for negligent investigation. The court held that there is no private law duty of care owed by the SIU to the family of the victim and that any duty owed by the SIU was owed to the public as a whole, and that nothing in the relevant legislation or the relationship between the parties was sufficient to establish a private law duty of care.

The victim was a 15-year-old boy named Duane who was allegedly pursued by two police officers without legal justification. When Duane attempted to drive away, one of the officers, allegedly without legal justification, began shooting at Duane and fatally wounded him. Duane’s mother and sister sued the SIU for negligent investigation and sought general and punitive damages, claiming that the SIU did not conduct a competent investigation by failing to properly interview the officers, allowing the officers to keep their firearms, and closing the investigation before receiving the pathologist’s report.

In this case, the court held, relying on the Cooper-Anns Test, that it was plain and obvious that there was no prima facie duty of care. The court relied on precedent in concluding that a duty of care is excluded in claims of negligence against public authorities where there is no possibility of a duty of care outlined in the statute governing that public authority. Also, the case law does not support a duty of care by a police chief or SIU to the families of victims. Since the Police Services Act sets out the duty of the SIU as only a public duty, there is no possibility for the SIU to have a private law duty and be liable to the victim’s family in negligence.

April 8, 2011
Link to Decision

Pedram Moussavi
*

R v. Parchment, 2011 BCCA 174

In R v. Parchment, the BC Court of Appeals considered the question of whether the Court can exercise section 684 of the Criminal Code, RSC 1985, c C-46, to appoint counsel to assist a self-represented, incarcerated offender prepare an appeal where the offender’s ability to do so is constrained by practical and security institutions in which the offender is housed.

The accused did not receive Legal Aid on the basis that his appeal had little merit and applied under section 684 for an appointment of counsel. At the Supreme Court, Madam Justice Huddart denied the application, regarding the accused as being able to represent himself. The accused reopened his application on the basis that he was constrained in his ability to prepare for his appeal by the limitation on computer time, inability to print material and the limited access to the law library at his place of incarceration and reopened the application for a defence counsel to assist specifically with preparing for the appeal. A Justice in Chambers does not have the authority to entertain a fresh application for the appointment of counsel without a change in circumstances. While Chiasson J.A. was not convinced there was a change of circumstances in this case, he held that he had authority to consider the application as the accused had changed relief requested from the appointment of counsel to represent him to the appointment of counsel to assist him in preparing for the hearing.

While Chiasson J.A. found that he had the authority to appoint counsel under section 684 to assist an incarcerated offender with preparing for appeal, he did not exercise that authority in this case, finding the resources afforded to the accused sufficient.

April 8, 2011
Link to Decision

Mary Phan
*

Thursday, April 7, 2011

Wormell v. Insurance Corp. of British Columbia, 2011 BCCA 166

In Wormell v. Insurance Corp. of British Columbia, the British Columbia Court of Appeal considered the meaning of the words “at a site” for the purposes of s. 72 of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 (the "Act"). The court determined that the words “at a site” means a site, “such as a construction site, a building site, or some other ‘work site’.”

Brent Wormell was injured by a sawmill attached to a crane hook mounted in the centre line of Bradley Hagen’s flatbed truck. The truck had stopped at a government weigh station where the attendant advised Hagen that the truck was overweight. Hagen moved the truck to an isolated area and prepared to move the sawmill off the truck with the crane in order to reduce the truck’s weight. The trial judge determined that Hagen’s negligence in continuing to operate the crane when there was no slack on the chain connecting to the sawmill was the cause of Wormell’s injuries. Wormell sought to obtain payment under s. 76(2) of the Act, which allows claimants to recover from the vehicle owner’s insurer.

S. 72(2) of the Act states that insured shall not be indemnified for “injury, death, loss or damage arising... out of the operation of attached equipment at a site where the attached equipment is being operated” unless the equipment is included in a list of exceptions. Cranes are not included in that list. The purpose of the provision is to exclude losses arising from business operations from qualifying under the insurance policy. The Insurance Corporation of British Columbia ("ICBC") argued that the accident occurred “at a site where the attached equipment is being operated”, and that it was therefore not liable for the damages.

Finch, J.A. reasoned that, applying the principles of interpretation regarding insurance policies set out in Progressive Homes Ltd v. Lombard General Insurance Co of Canada, a 2010 Supreme Court of Canada case; Dreidger‘s approach to statutory interpretation; and the presumption against tautology, the words “at a site” mean a work site or similar. This interpretation allows Wormell to recover from ICBC. According to the Court, allowing the phrase “at a site” to include anywhere the crane is being operated, as urged by ICBC, would effectively strike out the words “where the attached equipment is being operated” because the crane would then be “at a site” whenever and wherever it was being operated. This is contrary to the presumption against tautology: all words in a provision are assumed to have meaning. This is also contrary to the intention of the drafters, as the crane was not being used for business operations.

April 7, 2011
Link to Decision

Catherine Marchant & Alexa Mingo
*

Charlie v. Canada Safeway Limited, 2011 BCCA 202

In Charlie v. Canada Safeway Ltd., the British Columbia Court of Appeal stated that there is a single standard of care for occupiers under the Occupiers’ Liability Act. This standard requires that the occupier [defendant] take reasonable care in all the circumstances that a person [the plaintiff] will be reasonably safe in using the premises.

In Charlie, the plaintiff was injured by slipping on exposed water while on the defendant’s premises, a supermarket. The court held that the type of hazard is a relevant factor in determining whether a defendant has exercised reasonable care, but it does not increase or lower the standard of care required of that defendant. Groberman J.A., writing for the court, rejected the argument that there are different standards of care in "due diligence" cases and "unsafe conditions" cases. He held that a water hazard, though difficult to prove, does not require the higher evidentiary standard of certainty, and that the evidence must only establish the presence or absence of water on the balance of probabilities.

The Court upheld the summary judgment dismissing the plaintiff’s claim.

April 7, 2011
Link to Decision

Liam Oster
*

Wednesday, April 6, 2011

Johnson v. Johnson, 2011 BCCA 190

In Johnson v. Johnson, the British Columbia Court of Appeal held that a custodial parent’s failure to apply for the federal Child Tax Benefit was irrelevant for the purpose of calculating guideline support, and no set-off amount should be applied to her stated income.

In Johnson, both parents shared custody of the children of the marriage. The respondent, also a custodial parent, had successfully applied for the Child Tax Benefit, but the appellant had failed to apply for the benefit, despite her eligibility. Since the benefit would have been split between them if the appellant had been receiving the benefit, and since the parties were informally splitting the benefit between themselves, the Court held that the trial judge had erred by considering the mother’s failure to apply for the benefit.

Ultimately, the Court allowed the appeal largely on separate grounds.

April 6, 2011
Link to Decision

Liam Oster
*

Friday, April 1, 2011

Brown v. Cape Breton (Regional Municipality), 2011 NSCA 32

In Brown v. Cape Breton, the Nova Scotia Court of Appeal considered the application of settlement privilege to a related action that raised the possibility of “double recovery”. Bryson J.A., writing for the court, held that settlement communications should be approached as a “class” privilege, noting that they attract policy considerations akin to those relevant to solicitor-client and litigation privileges. He disagreed with a series of Ontario cases that approached settlement privilege on a case-by-case basis, finding that settlement communications are prima facie privileged. He concluded that the exception for double recovery might apply if the communications were found relevant to the issue of damages, but that this question was to be remitted to the trial judge.

At trial, the plaintiff alleged that in 2002 she sustained a serious and permanent knee injury when she fell from bleachers at a municipal ball field in Cape Breton. She alleged that she suffered further injuries to the same knee, two years later, when, while riding her bike, she was hit by a car. Having brought actions in respect of both injuries, she settled the second claim following discoveries. Cape Breton then sought disclosure of the settlement agreement and related correspondence. Ms. Brown refused, and the municipality successfully brought a motion for disclosure. Ms. Brown sought leave to appeal the decision of the Chambers judge (unreported).

Bryson J.A. reasoned that case-by-case privilege does not do justice to the policy underlying settlement privilege. If settlement discussions and agreements are not prima facie privileged, then the hope that parties work towards informal resolution of disputes is at risk. Moreover, the “truth seeking” purpose of litigation is not seriously impaired by protecting settlement communications, which arise only with a view to resolving a dispute, and typically would not exist but for the privilege. So, as a matter of policy, the argument for non-disclosure is stronger; settlement communications must benefit from the greater certainty class privilege confers. Noting that disclosure is appropriate where relevance of the evidence is linked to necessity established on the basis of a compelling policy reason, Bryson J.A. recognized a widely acknowledged exception for “double recovery”. However, he held that the chambers judge made an error in law by ordering disclosure without properly analyzing the relevance of the communications to the issue of damages. Granting leave and allowing the appeal, he concluded: “[This exception] could form the basis of a disclosure order in this case, should the trial judge ultimately determine that the communications sought here were relevant and necessary to avoid double recovery.”

April 1, 2011
Link to Decision

Tony Drake, Leo Elias & Marc Gibson
*