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How waivers of liability could be harder to enforce Canadian Underwriter




The Supreme Court of Canada could make a landmark decision on whether clients facing personal injury lawsuits can enforce waivers in court.

In Schnarr v. Blue Mountain Resorts Limited, the Court of Appeal for Ontario ruled in early 2018 that two plaintiffs who were injured while skiing are bound by waivers to which they agreed.

Those plaintiffs – David Schnarr and Elizabeth Woodhouse – submitted last month their application for leave to appeal to the Supreme Court of Canada, said Shantona Chaudhury, partner with law firm Pape Chaudhury LLP, which is representing Schnarr and Woodhouse.

The next step is for a three-judge panel (Rosalie Silberman Abella, Clement Gascon and Russell Brown) to decide whether or not Canada’s top court will hear the appeal.

“Whatever the Supreme Court would have to say about this will affect other provinces,” Chaudhury told Canadian Underwriter Wednesday.

The outcome will affect sports and recreation clients – such as those who provide facilities for mountain bike riding, rock climbing, scuba diving and paintball, lawyer John Olah told Canadian Underwriter earlier. Olah is one of the Beard Winter LLP lawyers defending Blue Mountain Resorts in Schnarr’s lawsuit.

When the Supreme Court will make decide whether to hear the appeal is not clear. It normally it takes four to six weeks for the court to decide whether or not to hear an appeal, Chaudhury suggested. The timeline depends on several factors including holiday schedules.

Regardless of what the Supreme Court says, both lawsuits are expected to go to trial, Chaudhury said Wednesday.

The question before the Court of Appeal for Ontario was not whether the plaintiffs are bound by the waivers. Instead, the question was whether the waivers are invalid due to Ontario’s Consumer Protection Act.

If the Supreme Court of Canada rules that the Ontario Consumer Protection Act makes waivers invalid, clients could look at what Quebec businesses are doing to manage liability risk, Chaudhury suggested.

This, Chaudhury added, is because under Quebec law, defendants cannot use waivers to avoid liability for negligence or wrongful conduct that causes personal injury.

“The ski industry in Quebec is huge,” Chaudhury said. “They obviously have a means of dealing with whatever claims are brought against them. The industry hasn’t collapsed because they can’t rely on waivers.”

In Ontario, Schnarr and Woodhouse are alleging that the defendants failed in their duties under both the Occupiers Liability Act and the Consumer Protection Act. The allegations have not been proven in court.

Ontario’s Consumer Protection Act stipulates that consumers’ rights apply “despite any agreement or waiver to the contrary.” It also stipulates that suppliers’ goods must be of a “reasonably acceptable quality.” An agreement between buyer and seller is not enforceable if that agreement “purports to negate or vary any implied condition or warranty under the Sale of Goods Act” or any “deemed condition or warranty” under the Consumer Protection Act.

If the Supreme Court of Canada hears the appeal from Schnarr and Woodhouse, they will be “dealing with a fundamental issue, which is the intersection of consumer protection law and occupiers liability law,” Chaudhury said. “What they say about that is going to affect the law in the courts in every province, even though there may be differences in the specific laws.’’

Schnarr was hurt Mar. 26, 2011 while skiing on a trail at the Blue Mountain resort near Collingwood. He hit a piece of debris and struck a tree.

Woodhouse was hurt Dec. 23, 2008 at Snow Valley Ski Resort near Barrie while using a tow rope.

Initially in 2017, Ontario Superior Court of Justice judges Ria Tzimas and John R. McCarthy made separate rulings in favour of Woodhouse and Schnarr respectively. Tzimas and McCarthy found that under the Consumer Protection Act, waivers are void if they negate a requirement, under the Consumer Protection Act, to provide a product of “reasonably acceptable quality.”

The Court of Appeal for Ontario disagreed.

It is “absurd” to tell the ski resorts that waivers protect them from negligence claims but not from warranty claims, Judge Ian Nordheimer wrote for the Court of Appeal for Ontario in its unanimous ruling. As a result, the appeal court ordered that the Superior Court of Justice proceed on the basis that the waivers apply not only to negligence allegations under the Occupiers’ Liability Act but also to breach of warranty allegations under the Consumer Protection Act.

“The Consumer Protection Act – by having this non-waivable warranty of quality of good or services – also has that implication that you can’t force people to give up their right to sue, so that’s really what’s at play here,” Chaudhury said.

In the ruling that Schnarr and Woodhouse are appealing, Judge Nordheimer argued that the Occupiers Liability Act conflicts with the Consumer Protection Act.

“Under the OLA, an occupier can obtain a waiver of liability (within limits as defined by the common law) from any person coming onto their premises. However, that same occupier, if they are also a supplier under the CPA, cannot obtain an equivalent waiver,” wrote Nordheimer. He added the Occupiers Liability Act was “intended to be an exhaustive scheme at least in relation to the liability of occupiers to entrants on their premises flowing from the maintenance or care of the premises.” The purpose of the OLA “would be undermined if the CPA were allowed to reintroduce another novel contractual duty that purports to subject occupiers to an obligation to warrant that their premises are of a ‘reasonably acceptable quality,’” Nordheimer wrote.

Section 1474 of the Civil Code of Quebec stipulates: A person may not exclude or limit his liability for material injury caused to another through an intentional or gross fault; a gross fault is a fault which shows gross recklessness, gross carelessness or gross negligence. He may not in any way exclude or limit his liability for bodily or moral injury caused to another.

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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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