Nova Scotia's cap on damages stands

Nova Scotia's cap on damages stands

You may recall our earlier post on the decision of the Nova Scotia Court of Appeal to uphold Nova Scotia's cap of $2,500 for general damages for "minor" injuries.

The Supreme Court has refused leave to appeal, so the cap remains.

The decision is MacDonald v. Attorney General of Nova Scotia.
Changes to the Occupational Health and Safety Act

Changes to the Occupational Health and Safety Act

On July 1st, 2010, the Occupational Health and Safety Act will be amended. The Act can be found on the E-Laws website at http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90o01_e.htm.

The changes are primarily directed towards workplace violence and harassment prevention and require employers to prepare policies with respect to workplace violence and harassment and review the policies.

Each employer may wish to review the new changes to ensure compliance.
Institutional Liability for Sexual Abuse

Institutional Liability for Sexual Abuse

Reference Re: Broome v. Prince Edward Island, [2010] S.C.C. 11

The Supreme Court of Canada recently commented on a variety of issues relating to whether an institution is liable for historical sexual abuse.

In this case, the plaintiffs alleged physical and sexual abuse as children while they resided in a privately owned and managed children’s home. The court considered 4 issues:

1. Did the province owe a duty of care by virtue of the common law, its statutory authority and responsibility, or the doctrine of parens patriae?
2. Did the province owe a non-delegable duty?
3. Was the province vicariously liable for the acts or omissions of the trustees, staff or volunteers working in the home?
4. Did the province owe a fiduciary duty to the residents in the home?

The court held that there was not sufficient proximity to impose a duty of care. Although the governing legislation set out that the director shall “inspect or direct and supervise the inspection of any institution established for the care and protection of children or place where a child is placed pursuant to the provisions of this act”, this was insufficient to impose a duty of care. In addition, the mere fact that the province provided some funding indirectly in the form of grants was not enough to create a sufficient relationship of proximity between the province and the children.

The court also held that the province did not owe a non-delegable duty of care to the residents of the home. The home was not a children’s aide society, the children were not foster children or wards of the province, and the legislation created no role for the province in the operation of the home or for the care of the residents.

In terms of vicarious liability, the court rejected the plaintiffs' submission that the province exercised sufficient control over the home through legislative authority and statutory duties to justify the imposition of vicarious liability. The court noted that legislative authority is not enough to impose vicarious liability as if it were, “a province would be vicariously liable for every act committed in a field within its legislative authority”.

Finally, the court held that there was no fiduciary duty owed by the province to the children as there was no evidentiary basis to support an inference that the province directed or had the authority to direct the operation of the home. There were no facts that would have given rise to a fiduciary relationship.

This decision, when read in conjunction with decisions such as KLB v. British Columbia, [2003] 2 S.C.R. 403, is important in the defence of institutions for cases involving sexual abuse. It appears from this decision that something more than just legislation, such as a direct role in supervising children, is required in order to impose liability.
The Duty to Defend in a Homeowner's Policy

The Duty to Defend in a Homeowner's Policy

McKinnon J. of the Ontario Superior Court of Justice recently released a decision arising from a Rule 21 motion for determination of a question of law, namely whether an insurer owes a duty to defend homeowners arising out of a homeowner's insurance policy. The claim against the homeowners arose after they sold their house. The purchasers alleged misrepresentation on the part of the homeowners for failing to disclose the condition of the property. Poplawski v. McGrimmon, [2010] O.J. No. 33.

What I found interesting in this decision is the very helpful overview of the law on an insurer's duty to defend. Here are a few paragraphs from this overview:

There is a three step process to determine whether an insurer has a duty to defend its insured:
(a) Are the plaintiff's legal allegations properly pleaded?
(b) Are any claims entirely derivative in nature?
(c) Do any of the properly, pleaded non-derivative claims potentially trigger the insurer's duty to defend?

In considering whether a plaintiff's allegations are properly pleaded, courts are not bound by the legal labels chosen by the plaintiff. When ascertaining the scope of the duty to defend, a court must look beyond the choice of labels and examine the substance of the allegations contained in the pleadings. This does not involve deciding whether the claims have merit: the court need only decide, based on the pleadings, the true nature of the claims. A plaintiff cannot change negligence into an intentional tort simply through the choice of words.

In considering whether any of the claims potentially trigger the insurer's duty to defend, where the allegations of negligence constitute a separate tort and are not an attempt to "dress" intentional conduct as negligence, the insurer will be under a duty to defend: see Godonoaga (Litigation guardian of) v. Khatambakhsh, [2000] O.J. No. 2172 (C.A.) at paras. 28 and 32.

If there is any uncertainty as to whether a claim falls within the applicant's policy coverage, the uncertainty must be resolved in favour of the insured: see Co-Operators General Insurance Co. v. Murray, [2007] O.J. No. 2329 (S.C.J.) at para. 6.
7 Hour Discovery Rule Interpreted

7 Hour Discovery Rule Interpreted

Justice Templeton has recently addressed the new so-called "7 Hour Rule" that limits examinations for discovery, J. & P. Leveque Bros. v. Ontario , 2010 ONSC 2312.

The issue on the motion was whether leave should be granted to the plaintiff to conduct an examination for discovery of the defendants for a period of time in excess of seven hours.

At paragraph 16 of her decision, Templeton J. writes: The interests of justice do not require that the concept of effective representation trump the concept of cost-efficient and/or expeditious justice or vice versa; but they do require that these factors be balanced both jointly and severally by all participants in the process.

She also adds at paragraph 20: I am also of the view that in circumstances in which the time limit agreed upon in the Discovery Plan has expired and counsel is at a crucial point in his/her examination on an issue central or germane to the case, flexibility ought to be brought to bear and that further time to a maximum of one hour to continue and conclude the examination would not be unreasonable in the circumstances.

At a paragraph 21: In cases involving multiple parties, I would expect the excess of one hour to be deducted from the time available for that same party to examine another party to the litigation. In other words, to ensure that effective and cost-efficient justice is realized, counsel must adhere to their agreement with respect to the total length of the examinations but where there is more than one party, a leeway of one hour past the allotted time for the examination of one of the parties would not be unreasonable provided it is recovered from the examination of another party. This
flexibility allows counsel to be effective and to prioritize but at the same time cost-efficient in
the overall process.

In conclusion she granted the plaintiff 19 hours to conduct the examination for discovery since it was a multi-party action involving a number of different issues.