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Drinking and boating accident sparks disagreement among judges Canadian Underwriter





In a recent divided ruling over the constitutional rights of drivers suspected of being drunk after causing an accident, the Supreme Court of Canada has narrowly upheld the conviction of an Ontario woman who operated a boat while impaired.

R. v. Culotta, released this past Friday, shows disagreement among judges on the power police should have in asking suspects questions and using blood samples taken from drivers who are taken to hospital after an accident.

Christie Culotta was operating a boat with four other women at about 2 in the morning in the rain on Lake Muskoka. The boat crashed, injuring all five, who were taken to hospital.

Culotta was convicted in 2017 of two counts of operating a vessel while having a blood alcohol content of more than 80 mg per 100mL.

She appealed her conviction, arguing some of her Charter rights were violated and therefore some evidence should have been excluded.

Two of three Court of Appeal for Ontario judges (Ian Nordheimer and William Hourigan) hearing Culotta’s case upheld her conviction in their ruling released in January, 2018. Dissenting was Judge Gladys Pardu, who would have quashed the conviction.

Using blood samples taken more than three hours after the accident, a toxicologist had concluded that Culotta’s blood alcohol level – at the time the boat collision occurred – would have been anywhere from 119 to 172 mg per 100 mL.

Those hospital records should have been excluded, Culotta argued.

Judges Rosalie Silberman Abella and Sheilah Martin of the Supreme Court of Canada agreed. Those two were outvoted by Chief Justice of Canada Richard Wagner, Michael Moldaver and Malcolm Rowe.

Friday’s decision was unusual in that the Supreme Court of Canada did not publish its own analysis. Rather, Moldaver – writing for the majority – explained the Supreme Court of Canada would uphold the Court of Appeal for Ontario decisions for “substantially” the same reasons Justice Ian Nordheimer of the Court of Appeal for Ontario upheld Culotta’s conviction.

The dissenting Supreme Court of Canada judges cited reasons given in 2018 by Judge Pardu.

What’s not in dispute is that some of Culotta’s Charter rights were violated. Ultimately, the evidence considered by the judge who originally convicted Culotta can be used in court without bringing the administration of justice into disrepute, the majority of judges hearing her appeal ruled.

In 2017, trial judge Gregory Mulligan of the Ontario Superior Court of Justice found that police violated Culotta’s right to be free from unreasonable search and seizure. This is because they sealed two of her blood samples taken at hospital. But Mulligan ruled those samples are excluded from evidence, while other hospital records could be entered as evidence.

In explaining why he dismissed Culotta’s appeal, Judge Ian Nordheimer noted that Culotta’s blood samples were taken at the “direct instruction of the emergency room physician” who also ordered that those samples be tested for alcohol level.

The technician took extra blood samples.

Two vials of blood were sealed and were later obtained by police through a search warrant.

“Whether the lab technician did or did not take other blood samples for the police, some blood would have been taken from the appellant, and it would have been tested for blood-alcohol concentration regardless. Consequently, the Charter infringement regarding the two vials of blood is independent of the other blood samples taken,” wrote Nordheimer.

Culotta countered that this “ignores the fact that all the blood was drawn” from Culotta at the same time and was part of the same course of events.

After the 2013 boating accident, a police officer entered the ambulance. Culotta admitted to him that she was the driver and had been drinking. Culotta was arrested, taken to a hospital in Bracebridge and had blood samples taken.

The arresting officer asked Culotta whether she wanted a lawyer to which Culotta replied, “No, my parents should be here soon. We have a family lawyer.”

The judges who would have quashed Cullotta’s conviction found that Culotta “did invoke her right to counsel.”

But Nordheimer  countered that Culotta did not specifically ask to speak to her lawyer. Culotta also asked police whether she would get “to blow into one of those machines to prove that I’m not drunk,” Nordheimer noted, adding Culotta was “well aware” that police were investigating her for possibly operating a vessel while impaired.

Taking blood samples requires consent from the patient, argues the Canadian Civil Liberties Association, which had intervener status in the case. “When there is an overlay of police involvement, hospital staff and doctors must obtain an informed consent that includes explaining what is necessary and is not for treatment.”


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Multiple trucking violations by Humboldt semi driver noted in government report Canadian Underwriter





MELFORT, Sask. – A Saskatchewan government report says the driver of a semi-truck should not have been on the road the day he flew through a stop sign and caused a crash with the Humboldt Broncos team bus.

The report filed during the sentencing hearing for Jaskirat Singh Sidhu notes 51 violations of federal trucking regulations on drivers’ hours and 19 violations of Saskatchewan trip inspection rules.

It includes the 11 days prior to the April 6, 2018, crash at a rural intersection that killed 16 people and injured 13 others.

The wreckage of a fatal collision, involving a bus carrying the Humboldt Broncos junior hockey team, outside of Tisdale, Sask., is seen Saturday, April, 7, 2018. THE CANADIAN PRESS/Jonathan Hayward

“If Jaskirat Singh Sidhu had been stopped and inspected on April 6, 2018, prior to the incident he would have been placed under a 72-hour out-of-service declaration … preventing him from operating a commercial vehicle,” says the report.

The document is signed by two senior Saskatchewan government officials and is included in the RCMP’s forensic collision reconstruction report.

It expresses concerns about the distances Singh was driving as well as the amount of time he took off to rest.

The report notes that if Singh had accurately documented his time at work on April 1 it ‘would have resulted in the driver being in violation of the maximum on-duty time of 14 hours for the day.”

The report says questions remain about what happened the day of the crash.

“We have strong concerns regarding the timelines of Jaskirat Singh Sidhu’s day on April 6, 2018, as there are unanswered questions as a result of the incomplete log on that day,” it says.

“The identified mileage and distances required to travel to the locations identified in the log and known locations also cause concerns.”

Sidhu had been driving for about a month before the crash occurred.

The owner of the Calgary-based trucking company, Sukhmander Singh of Adesh Deol Trucking, faces eight charges relating to non-compliance with federal and provincial safety regulations in the months before the crash.

They include seven charges under the federal Motor Vehicle Transport Act: two counts of failing to maintain logs for drivers’ hours, three counts of failing to monitor the compliance of a driver under safety regulations, and two counts of having more than one daily log for any day.

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Signs of progress on national flood program for Canada Canadian Underwriter





Canada is making good progress on a national flood program, pending a final decision by federal, provincial and territorial (FPT) ministers responsible for emergency management.

“What they are looking at is one national insurance solution to improve outcomes for high-risk Canadians across the country,” Craig Stewart, vice president of federal affairs at Insurance Bureau of Canada (IBC) told Canadian Underwriter in an interview Tuesday. “There may be regional insurance pools adapted to local conditions, but it would be nationally coordinated.”

FPT ministers responsible for emergency management have mandated IBC to lead a national working group to take a look at options and what they would look like. IBC provided three options:

  • A pure market approach (like in Germany and Australia) where governments exit disaster assistance
  • A broadened version of the status quo, but with better-coordinated insurance and disaster assistance
  • Deployment of a high-risk pool analogous to Flood Re in the United Kingdom.

The next step is for the working group, which Stewart chairs, to cost out the pool. “The pool needs to be capitalized as it was in Flood Re,” Stewart said. “So, we need to figure out where that money is going to come from. Is it going to come from governments? Is it going to come from insurers? Where is it going to come from?”

A final decision will be made by ministers after the high-risk pool is costed, which Stewart expects to be completed by June. Decisions on eligibility, how to capitalize the pool, and on any cross-subsidization await the results of that costing analysis.

In addition, this spring, the ministers will hold a technical summit on flood data and science. “Our view of the risk many not align with the government’s view of the risk,” Stewart said. “We need to bridge the gap. This symposium is going to focus on essentially the data and science of flood modelling.”

In early 2020, there will be the launch of a consumer-facing flood risk portal. IBC has been working with the federal government to develop the authoritative flood portal, where consumers can discover their risks and what to do about them.

“Elevating consumer awareness of flood risk is key,” Stewart said. “Consumers aren’t going to be incented to protect themselves or to buy insurance unless they know their risk.”

In May 2018, FPT ministers responsible for emergency management tasked IBC to lead the development of options to improve financial outcomes of those Canadians at highest risk of flooding. IBC worked with a wide range of insurers, government experts, academics and non-governmental organizations to produce the three options, which were tabled with ministers last week.

The ministers released the first-ever Emergency Management Strategy for Canada: Toward a Resilient 2030 on Jan. 25. The document provides a road map to strengthen Canada’s ability to better prevent, prepare for, respond to, and recover from disasters.

“In less than two years, Canadian insurers have secured a mandate with every province and territory to finalize development of a national flood insurance solution, have successfully catalyzed a national approach to flood risk information, have secured over two billion dollars in funding for flood mitigation, and have succeeded in securing a funded commitment for a national flood risk portal,” Stewart said.

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Insurers disagree over meaning of ‘household’ in policy language Canadian Underwriter





A dispute over what exactly constitutes a “household” in a home insurance policy has reached the Court of Appeal for Ontario.

Several members of the Weiner family were sued after a person drowned in 2010 in a vacation home on Lake Eugenia, about 70 kilometres west of Barrie.

The homeowner was Enid Weiner, who had moved to a nursing home in 2008 or 2009 and has since passed away.

The home was insured by Intact. Enid Weiner was the only named insured, but the policy provided liability coverage for relatives of the named insured while those relatives were “living in the same household” as the named insured.

Whether this means Intact is also providing liability coverage for Enid Weiner’s adult son, Scott Weiner, was a source of disagreement among judges and insurers alike.

Scott Weiner, along with his wife and daughter, were named defendants in the drowning-related lawsuit. Also named was the estate of Enid Weiner. Scott Weiner used his mother’s house as a cottage but did not live there permanently.

Scott Weiner’s own insurer, TD Insurance, settled the lawsuit. TD Insurance took Intact to court arguing Intact has a duty to defend the lawsuit.

As it stands, TD has lost its case.

“The mere fact of co-residence is not enough to constitute membership in a household,” wrote Ontario Court of Appeal Justice Bradley Miller in Ferro v. Weiner, released Jan. 28, 2019.

Initially, Ontario Superior Court of Justice Pamela Hebner ruled in favour of TD. In her ruling, released Apr. 12, 2018, she ordered Intact to pay $62,500, or half the cost of settling the lawsuit.

Justice Hebner found that Scott Weiner was in the same household as his mother. He came to the cottage when he wished and took care of it as if it were his own place.

But Justice Miller of the appellate court countered that, at the time of the accident, Enid was living in a nursing home.

“Scott lived with his family in the city and had organized his life around his urban household. Prior to entering the nursing home, Enid lived with Scott’s brother, and not with Scott and his family,” added Miller, citing several court rulings, including Wawanesa Mutual Insurance Co. v. Bell, released in 1957 by the Supreme Court of Canada.

Wawanesa v. Bell arose after Murley Miller was killed in 1955 while driving a Vauxhall car owned by his brother, John Milley.  Other victims of that accident sued Miller’s estate. Murley lived at John’s home in Sarnia.

The court in the 1957 case defined the term “household” in the following way:

“The ‘household,’ in the broad sense of a family, is a collective group living in a home, acknowledging the authority of a head, the members of which, with few exceptions, are bound by marriage, blood, affinity or other bond, between whom there is an intimacy and by whom there is felt a concern with and an interest in the life of all that gives it a unity.”

Members of a household could include domestic servants and distant relatives living there permanently, the court found in 1957.

“Although a household is not synonymous with a family, the existence of a household is evidenced by the extent to which its members share the intimacy, stability, and common purpose characteristic of a functioning family unit,” Judge Miller of the Court of Appeal for Ontario wrote in 2019 in Ferro v. Weiner.

Members of a household “typically share a residence and resources, and integrate their actions and choices on an ongoing and open-ended basis,” added Miller.

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