April 26, 2024
Newsletter – April 2024
Does Provocation Mitigate Damages or Constitute Fault?
By Amelia Staunton, Dolden Vancouver, and Luke Montalbano, Dolden Vancouver
A recent case suggests that, in British Columbia civil actions, provocation might more properly be considered an aspect of contributory fault, rather than as a factor mitigating damages, as many Canadian courts have previously held. Canadian courts in Newfoundland and Labrador, Nova Scotia, and Alberta all treat provocation as mitigating damages. Ontario and Manitoba accept that provocation is a mitigating factor, but only against punitive and aggravated damages. Until recently, the weight of British Columbia jurisprudence has held that provocation ought to only mitigate damages, and should not create “fault” on the part of the plaintiff. As a result, a plaintiff who was found to have provoked an assault upon himself could still recover the entirety of his reduced judgment from one tortfeasor under the “joint and several liability” rule in the Negligence Act, even if another tortfeasor was also liable, and liable in a greater proportion.
However, this rule may be subject to re-evaluation as a result of a recent British Columbia Court of Appeal decision, Wang v. Niu, 2023 BCCA 153.
The plaintiff Mr. Wang invited the defendant Mr. Niu to his home for a social gathering. After both became heavily intoxicated, a conflict ensued and Mr. Niu injured Mr. Wang with a sharp metal object. Mr. Niu pleaded guilty to a charge of assault causing bodily harm, admitting he had used excessive force.
Both men commenced civil actions against one another for battery, and Mr. Wang applied for summary judgment, or alternatively, summary trial.
Mr. Wang argued, based on the prevailing cases, that provocation should not be considered on the issue of liability but only on the issue of quantum in relation to the “mitigation” of damages. The chambers judge rejected his application, holding that a full analysis of the issue of provocation would have to occur at trial to determine if provocation would impact liability or merely reduce damages.
The Court of Appeal agreed with the chambers judge that the application was not suitable for summary disposition. The Court noted that a finding of provocation did not conceptually fit well with mitigation of damages. Provocation does not reduce the plaintiff’s injuries, or the amounts required to remedy them; however, it is easy to understand that provocation could affect an assessment of fault, and “it would make sense for provocation to be dealt with in apportioning liability”.
The Court concluded that the issue need not be decided on appeal, but that it was an “area… in which the law of British Columbia is not entirely clear”.
Takeaway
While the effect of a finding of provocation in British Columbia is now less clear than previously, there is a possibility that the court may be able to re-examine this doctrine in the future. The door is now open to a finding that provocation does not reduce damages, but results in an apportionment of fault against the plaintiff. If the plaintiff is found to have been contributorily at fault, then liability will be several, with each party responsible for their own share. This would be a favorable result for insurers, particularly in cases where the insured is a commercial host.
For further information or if you have any questions about the above article, please contact the author: Amelia Staunton, Dolden Vancouver, Email: [email protected].
But I Didn’t Even Get To… The Challenge of Appealing CRT Rulings
By Jonathan Weisman, Dolden Vancouver
Background
The B.C. Civil Resolution Tribunal (CRT) has now adjudicated strata property disputes for 10 years, and the challenges of handling disputes in its jurisdiction are well-understood. A recent case highlights just how difficult it is to appeal from CRT rulings.
One of the key features of CRT practice is parties’ limited ability to explore and evaluate the strengths and weaknesses of each other’s cases. The CRT offers few paths to compel document disclosure, explore witnesses’ knowledge, or compel and respond, in a timely way, to expert reports.
In the face of these challenges, it is important to understand that CRT decisions will almost always be final. The high legal threshold in the CRT’s empowering legislation makes it very unlikely that a decision will be set aside on appeal.
This standard – “patent unreasonableness” – was given wide latitude in Dolnik v Strata Plan LMS 1350. “Patent unreasonableness” requires a Court to defer to a CRT decision unless it “almost borders on the absurd” – any decision which is not “clearly irrational” is not patently unreasonable, even if it is “flawed or unreasonable”. Indeed, the Court of Appeal has held that it is not “patently unreasonable” to base a decision on insufficient evidence – only on none.
Patent unreasonableness is therefore a much higher bar to clear than “reasonableness” – the ordinary standard for judicial review. Under “reasonableness”, a decision within a range of acceptable outcomes must be upheld, even if a judge reviewing the decision would have arrived at a different one. “Patent unreasonableness” means that even unreasonable decisions may be fair game. And the scope of issues to which this higher standard applies is wide, as Dolnik indicates.
In Dolnik, a unit owner lived in a “leaky condo” and experienced periodic water ingress for 7 years. The strata corporation made several attempts to repair the leaks but these were largely ineffective.
Before the CRT, the owner sought damages against the strata for:
- failing to repair and maintain common property;
- treating her in a significantly unfair manner; and
- costs she incurred to repair her floor.
The CRT rejected the owner’s claims, and she filed a petition for judicial review.
On review, the Court found that every aspect of her claim fell within the CRT’s specialized expertise – including the application of the limitation period. Accordingly, the “patent unreasonableness” standard applied to every substantial ground of review. Unsurprisingly, the owner was unable to clear this high standard.
Takeaway
In most cases, a review of a strata property dispute decided by the CRT will not be successful. The “patent unreasonableness” standard will be applied very broadly and with a degree of deference to the Tribunal’s findings which is unlikely to be overcome.
This means that claims worth millions of dollars will be decided on a final basis by a tribunal at first instance, without the benefit of examinations for discovery, the examination of witnesses, or even adequate timelines for the delivery of expert reports. Arguably, the CRT may have the authority and discretion to make determinations regarding noise levels, construction standards, and other complex issues on expert evidence (which cannot be tested) or even in the complete absence of expert evidence.
It underscores the importance of engaging with counsel at an early stage, of retaining skilled adjusters in the early stages of disputes, and of Stratas’ maintaining clear and comprehensive records. In the absence of these, insurers defending Stratas before the CRT cannot count on the ability to compel evidence from complainants or to test the evidence presented against them.
For further information or if you have any questions about the above article, please contact the author: Jonathan Weisman, Dolden Vancouver, Email: [email protected].
How Far is Too Far: Do Maintenance Contractors Have a Duty of Care to Municipal Sidewalk Users?
By Dilprit Suri, Dolden Vancouver, and Jonathan Weisman, Dolden Vancouver
The British Columbia Court of Appeal has recently concluded that maintenance contractors do not have a duty of care to users of municipal sidewalks. Pavlovic v. Just George Cleaning and Maintenance illustrates how central the concept of proximity is to finding a duty of care.
The appellant Pavlovic was injured when she slipped and fell on a city sidewalk adjacent to a strata building. The respondent was a maintenance contractor whose duties included removing snow and ice from sidewalks adjacent to private property by 10:00 am every day. The Chambers judge dismissed Pavlovic’s claim, holding that Just George Cleaning did not owe a duty of care as there was not sufficient proximity between Just George Cleaning and members of the public.
In its review of the underlying judgment, the Court of Appeal relied heavily on the reasoning in Der v Zhao. The court in Der concluded that while harm to a passerby from uncleared sidewalks is a foreseeable risk, there is not enough proximity between a passersby and a private property owner to impose a duty to keep the sidewalks cleared. The following circumstances were key to the Court’s conclusion:
1. The sidewalk was owned and controlled by the city;
2. The claimant was a passerby, not someone invited to enter the private property via the sidewalk; and
3. The City’s snow removal bylaw required the private property owner to clear snow and ice every morning, not to keep the sidewalks free, clear, and safe around-the-clock.
Relying on Der, the Court of Appeal held that the relationship between Just George Cleaning and members of the public also lacked proximity. The Strata had delegated its duty to clear the sidewalks to Just George Cleaning. The obligation on Just George Cleaning could be no broader than the owner’s. Simply put, as there was insufficient proximity between the strata and the passersby, the maintenance contractor could have no greater duty than the owner.
It is worth noting that the court did not comment on the duty owed to someone who was invited to enter the property via the city’s sidewalk, as opposed to a passerby. Given the emphasis the Court has placed on the identified circumstances, the possibility of a duty of care in those circumstances remains open.
Takeaway
Maintenance contractors do not have broader duties to the public than the property owners for whom they work. While contractors will take comfort in knowing that their duties to sidewalk users are somewhat circumscribed, the possibility of liability to guests, as opposed to a passersby, remains a potential source of exposure where maintenance work is not reasonably performed.
For further information or if you have any questions about the above article, please contact the author: Jonathan Weisman, Dolden Vancouver, Email: [email protected].
No Relief from Forfeiture for a Claim Reported Outside a Policy Period – Brokers Beware!!
By Darren Glossop, Dolden Calgary, and Michael Libby, K.C., Dolden Vancouver
In a recent case, Kestenberg Siegal Lipkus v. Royal & Sun Alliance Inc. Co., 2023 ONSC 3132, the Ontario Superior Court of Justice upheld an insurer’s (Royal & Sun Alliance or RSA’s) refusal to cover a claim first reported to RSA 3 years after the policy ended.
Background
The insured, a law firm in downtown Toronto, sought coverage under an excess liability policy, issued by RSA, for a professional liability claim made against the firm. The policy was issued for the year 2018, and provided coverage for claims first made and reported to RSA during 2018.
Though the law firm diligently reported the claim to its broker in 2018, the broker failed to inform RSA. The broker admitted its negligence, though presumably partnered with the law firm to bring a relief from forfeiture application.
RSA relied on two notice conditions in the policy: 1) As a condition precedent to its rights under this policy, an Insured must provide written notice of any claim as soon as practicable… and 2) This policy only covers claims first made against the Insured and reported to the Insurer during the policy period…
Condition Precedent by Language, not Title
Though the second notice condition did not include the express words “condition precedent”, the Court followed an earlier Ontario Court of Appeal decision holding that a claims-made condition did not have to specifically state it was a “condition precedent”. Rather, the Court found that the language of the second notice condition made it self-evident that it was a condition precedent.
Claims Made Policies are Cost Effective
The Court refused relief from forfeiture, and followed the Supreme Court Decision in Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada which observed that an important part of the bargain struck in claims-made policies is restricted coverage by the insurer in exchange for a lower premium paid by the insured. The court acknowledged that this can result in a coverage gap even though the insured was consistently insured, though such gaps are justifiably within the nature of the type of coverage chosen by an insured.
The Court found that the two notice conditions which RSA relied on were internally consistent. One required claims to be made and be reported within 2018, and the other, required written notice “as soon as practicable”. The Court seemingly agreed with RSA’s argument that the “soon as practicable” condition was sensible as early reporting allows an insurer to investigate, mitigate, or resolve claims timely; it avoids insureds waiting to report claims at the end of a policy.
The Supreme Court of Canada in Jesuit Fathers of Upper Canada held that a contextual but unprincipled approach to policy rules and principles would render a disservice not only to the insurance industry, but also to insureds. It would lead to further difficulties in obtaining coverage and compensation. Following this, the Court followed one such principle, being that the explicit terms of an insurance policy are to be adhered to – it held that to suddenly require RSA to cover a claim not made within the parameters of the policy would not help insureds at large because insurers would quickly end the sale of claims-made policies with discounted premiums.
Takeaway
Canadian courts have generally adopted the position that relief from forfeiture is not available to an insured where the insured has failed to comply with a condition precedent to coverage. This decision reinforces this by re-affirming that general rule even in circumstances where the insured reported the claim to their broker in a timely fashion and it was the fault of the broker that notification did not reach the insurer until much later. Put another way, the presence or absence of “fault” on the part of the insured is not a significant factor when considering relief from forfeiture for beaches of conditions precedent. Brokers would be well advised to take heed of this decision and be mindful of the fact that they may well end up being responsible for these sorts of omissions.
This case also serves as a reminder that the court will look at the substance of the condition to determine if a condition is truly “precedent to coverage” and that the labels used are not determinative of that question.
For further information or if you have any questions about the above article, please contact the author: Darren Glossop, Dolden Calgary, Email: [email protected].
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