No obligation to seek clarification of a non-party witness

No obligation to seek clarification of a non-party witness

Arunasalam v. Guglietti Estate, [2010] O.J. No. 3303 (S.C.J.)

The question to be answered in this motion with respect to refusals on examination for discovery was this: when counsel provides a summary of the anticipated evidence of a witness, is counsel required to seek clarification or further information from that witness?

Master Short held that although counsel must provide a summary of the substance of the evidence of a non-party witness, that obligation does not extend to obtaining further particulars and clarification. If the non-party witness is unwilling to provide clarification or further information to counsel opposite, it may be appropriate to bring a motion under Rule 31.10 in order to compel discovery of the non-party.
The Duty to Defend

The Duty to Defend

Cadillac Fairview Corp v. Olympia Sanitation Products Inc., [2010] O.J. No. 3306 (S.C.J.)

In the context of slip and fall actions, there is often both an owner/occupier of a property as well as a company hired to maintain the premises. Frequently there is a dispute over whether the contract between the two entities requires the contractor to assume the defence of its principal.

In this decision, the main action arose out of an alleged slip and fall occurring at the Promenade Mall. Cadillac Fairview hired Olympia as part of a cleaning contract in which Olympia agreed to insure and indemnify Cadillac Fairview for any losses arising out of Olympia’s contractual responsibilities. The incident report completed after the fall described that the plaintiff had fallen over something and described the cause of the injury as a “trip and fall” as opposed to a “slip and fall”. Some of the allegations in the Statement of Claim involved allegations of improper design and disrepair of the accident location.

Justice DiTomaso held that Olympia was not required to assume the defence and indemnity of Cadillac Fairview. The Riocan case was distinguished in the circumstances as there were independent allegations of negligence beyond the scope of Olympia’s cleaning contract. In Riocan, the Court held that the true nature of the plaintiff’s allegations fell within the scope of the hold harmless clause, so the contractor was obliged to defend. Justice DiTomaso in this case was unable to determine one particular claim that fell within coverage captured the true essence of the action, and further, it was possible that the plaintiff was injured in a way that was totally unconnected to Olympia’s responsibilities.

This case shows the complicated nature of the duty to defend and indemnify. Cases are determined on the specific facts and allegations made in the Statement of Claim in addition to the contract between the parties. Generally, where there is some allegation of independent negligence plead by the plaintiff, the independent contractor will not be required to assume the defence and indemnify its principal.
Definition of "Struck by" or "Hit by" in Auto Insurance

Definition of "Struck by" or "Hit by" in Auto Insurance

The Court of Appeal for Ontario has decided that coverage under one's own policy for being "struck by" or "hit by" an unidentified automobile includes walking into an unnoticed steel pole protruding from a parked truck. Lewis v. Economical Insurance Group, [2010] O.J. No. 3158 (C.A.).

The facts are described as follows: "On a spring day in 2003, Bonnie Lewis walked out of a variety store and struck her head on a steel pole protruding from a truck parked the wrong way on the street in front of the store. The pole was unmarked, grey and nearly invisible. Ms. Lewis did not see the pole until she hit it. The pole struck her above her right eye near her temple. She fell to the ground, unconscious. She suffered a serious head injury, which has left her cognitively impaired."

Since the truck could not be identified, Ms. Lewis sued her own insurance company for damages for personal injuries. Both her automobile policy and the OPCF Family Protection Endorsement, which was additional insurance she had purchased, provided coverage for personal injuries resulting from an accident involving an unidentified or uninsured automobile. As Ms. Lewis was not an occupant of an automobile when she was injured, she was entitled to coverage only if she was "struck by" or "hit by" an unidentified automobile.

A motions judge concluded that Ms. Lewis was not "struck" or "hit by" the truck, or the pole that protruded from it, because the truck was not moving at the time. Instead, it was Ms. Lewis who struck or hit the pole.

The Court of Appeal concluded otherwise and finds that she is entitled to coverage.

Laskin J.A. added that "my interpretation of these words [struck or hit by] would not open the floodgates to injury claims by persons who walk into unidentified parked cars. This is a case about coverage, not liability or negligence. If the owner or driver of a parked car was not negligent, the claimant would have no legal entitlement to damages."

Whether the plaintiff is now entitled to damages "depends on her being able to prove that the unidentified owner or driver of the truck was negligent."

It seems that the Court is saying that if the plaintiff is not entitled to damages then it should be determined on the issue of negligence and not coverage. Coverage should be interpreted broadly whereas negligence must be proven strictly.