Articles

What can be done to reduce or eliminate child and spousal support arrears?

2025.01.20 // Read More

Michael Long recently appeared as counsel at the B.C. Court of Appeal, where he successfully upheld a Supreme Court decision eliminating $280,000 of child and spousal support arrears, interest, and penalties: Hildebrand v. Hildebrand, 2024 BCCA 395

An unpaid child support or spousal support order can have serious consequences for the payor. Under the Family Maintenance Enforcement Act, the B.C. Family Maintenance Agency (“BCFMA”) (Formerly, the Family Maintenance Enforcement Program), has wide-ranging powers of enforcement, including the ability to garnish wages and bank accounts, intercept tax refunds and EI benefits, cancel a driver’s license, and deny the issuance of a new passport.

Before taking enforcement steps against a payor, the BCFMA will often contact the payor and enter a voluntary payment arrangement, sometimes agreeing to accept lower payments than required by a court order. However, this should only be viewed as a stop-gap measure, as arrears and interest will continue to accumulate based on an order until it is either fully paid or changed by a new order. The BCFMA will typically expect a payor in arrears to take action to change their support order in a timely manner if they do not have the means to pay the full amount required.

Retroactive variation

In situations where a payor’s income has decreased since the time when a support order was granted, it is possible to apply for a retroactive variation of support. To succeed, a payor must provide evidence of a past material change in their income. An important limitation on retroactive variations is the presumption that the court will only vary a support order back to the date of effective notice, up to three years before formal notice. In this context, effective notice refers to notice from the payor to the recipient that their income has declined with appropriate financial disclosure. Formal notice refers to notice of an application to vary support. As a payor, if you no longer earn as much income as when your child or spousal support payments were determined, a critical first step is to communicate in writing to the recipient that your income has decreased and to provide the evidence required by s. 21 of the Federal Child Support Guidelines, including tax returns, notices of assessment, and recent pay stubs.

Reducing or cancelling arrears

Applications to cancel arrears, referred to as rescission under the Divorce Act, are based on a different set of factors. Section 174 of the Family Law Act allows the court to reduce or cancel arrears owing under a support order if satisfied that to not do so would be grossly unfair. In making this determination, the court may consider the efforts made by the payor to comply with the order, the reasons why the payor cannot pay the arrears, and other relevant circumstances. Since the support arrears often represent sums that the payor had a historical ability to pay but chose not to, courts have taken a highly restrictive approach to cancelling arrears. Generally, to succeed in an application to cancel arrears, the payor must establish a material change in circumstances preventing them from paying either now or in the future.

Long-term retroactive variation

Hildebrand v. Hildebrand, 2024 BCCA 395 (“Hildebrand”), was a special case in which the payor was able to retroactively vary his support over almost a decade. The Supreme Court found that the payor had overpaid support relative to his actual income since support orders were entered in 2014. The long-term recalculation of the payor’s support eliminated $280,000 of support arrears, interest, and penalties. The Court of Appeal upheld this result because the Supreme Court applied the four-part test set out by the Supreme Court of Canada in Colucci v. Colucci, 2021 SCC 24 (“Colucci”) to depart from the usual presumptive three-year limitation on retroactive variation given the unusual circumstances of the case.

The four-part test in Colucci considered:

1. The reason for the payor’s delay in seeking to reduce support;

2. The conduct of the payor;

3. The circumstances of the children; and

4. The hardship to the payor if the period of retroactivity was not lengthened beyond the presumptive date.

In Hildebrand, the Supreme Court accepted that the payor’s delay was to some degree explained by the parties’ frequent litigation over parenting issues and the payor’s limited means. In terms of conduct, the payor had always made payments and overpaid relative to his actual income with limited exception. The Supreme Court observed that the children had participated in expensive hockey programs and that the recipient had the ability to make substantial charitable donations. Finally, with respect to the payor’s hardship, the Supreme Court found that without adjustment, the payor’s support obligations would effectively consume close to the entirety of the payor’s after-tax income over a nine-year period. The Court of Appeal did not find that the Supreme Court erred in its analysis.

When Clean Becomes Complicated: Legal Perspectives on Loss of Housekeeping Capacity

2024.10.29 // Read More

Author: Silvia Purcarin

Loss of housekeeping capacity is an important, but often overlooked component of damages in personal injury cases. Loss of housekeeping capacity refers to a gradual or sudden inability to manage household tasks required for the maintenance of a functional household and it can encompass a wide range of household tasks, including cooking, cleaning, grocery shopping, yard work and even childcare duties.

Some key principles regarding loss of housekeeping capacity include:

1. An award of damages for loss of homemaking capacity is intended to compensate the plaintiff for the lost value of work that the plaintiff would have undertaken, but is now incapable of performing.

2. The loss is compensable either under a distinct head of damages or under any of the other, more familiar heads of damages, including non-pecuniary damages, special damages or cost of future care. This allocation depends on the specific circumstances of each case.

3. There is no judicial consensus as to the cut-off age for awards for loss of housekeeping capacity.

Read the full article on RMC

Animal Instincts – Defending Liability Claims Involving Pet Attacks

2023.11.29 // Read More

Authors: Roger S. Tangry, Senior Associate, and Amy Ko, Articled Student

As much as we love them, when pets behave badly towards others and cause harm, pet owners can be exposed to liability for harm arising out of such conduct.

Claims involving pet attacks can often be more complex and nuanced than they appear on the surface, especially where they involve bodily injury claims such as dog bites, slips and falls, or one pet attacking another. On the surface, these claims may appear as frivolous nuisance claims with simplistic fact patterns. However, there is always a potential risk that such claims can evolve into significant lawsuits involving allegations of emotional harm, psychological injuries, damages for loss of income, loss of future earning capacity, and cost of future care.

Even the most seemingly harmless family pet can be the subject of legal proceedings. The recent case of Rae v. Gadalla, 2023 BCSC 1398, resulted in a finding of liability against the defendant owners of Flex, a feisty Yorkshire Terrier, including a nominal award of damages for bodily injury arising from a dog bite. The court in Rae provided an overview of the applicable legal framework before assessing damages arising from liability.

The case involved allegations that Flex attacked the plaintiff in the elevator while under the care and control of the defendant. Although differing accounts of what transpired were offered as evidence during the trial, and there was no surveillance footage of the incident, the court held that, based on the evidence, Flex had behaved aggressively and attacked the plaintiff without provocation resulting in a bite to his left lower leg which resulted in a three-month period of temporary partial disability and permanent scar.

Negligence and Scienter

In cases involving pet attacks, the plaintiff has the option of advancing a claim under the law of negligence or the doctrine of scienter, or both. While each approach is a legally distinct cause of action, they both involve consideration of a pet’s propensity to do harm.[1]

Pet owners can be held liable for an attack under the doctrine of scienter and under the law of negligence. It is important to treat these two as separate although they often become intertwined. These two approaches are not the same and should not be conflated.[2]

Under the negligence framework, the plaintiff must prove on a balance of probabilities that:

  • the defendant knew or ought to have known that the dog was likely to create a risk of injury to third persons, including the plaintiff; and
  • the defendant failed to take reasonable care to prevent such injury

The first element is related to foreseeability and the establishment of a duty of care. The second element relates to the breach of the standard of care.[3] The question of whether the defendant pet owners knew or ought to have known that a pet is likely to create a risk of injury is an objective test.[4]

To succeed under negligence, the onus is on the plaintiff to prove that the defendant pet owner knew or ought to have known of the risk of injury, and failed to take reasonable care to prevent their pet from causing such injury.

Under the common law doctrine of scienter, there is a presumption that domesticated animals, such as dogs, are harmless, and liability requires proof that a defendant pet owner actually knew, prior to the events giving rise to a claim, that the animal in question had the propensity to cause the type of damage the plaintiff is alleging.[5]

The analysis under scienter begins with classifying the animal in question as ferae naturae or mansuetae naturae. Animals ferae naturae are never regarded as safe, and liability attaches for the harm they cause without necessitating evidence that the particular individual animal was dangerous. Wild animals who are dangerous by nature, such as bears and lions, generally fall under this category.[6]

Animals mansuetae naturae are animals whose nature are not immediately dangerous, but individually may have a disposition for vicious behavior. Domesticated dogs and cats will generally fall under this category. For animals that fall under mansuetae naturae, a finding of liability under scienter requires the plaintiff to prove on a balance of probabilities that:

  1. the defendant was the owner of the animal;
  2. that the animal had manifested a propensity to cause the type of harm occasioned; and
  3. that the owner of the animal knew or ought to have known of that propensity

(Rae v. Gadalla, 2003 BCSC 1398, para 94).

Liability will only attach if all three elements are proven on a balance of probabilities, a burden which rests with the defendant.

Knowledge on the part of the pet owner that their pet has a propensity to do harm, or to cause the type of harm occasioned, is key to a finding of liability under scienter, and can be either subjective or objective knowledge.[7]

In addition, the harm the animal has a propensity to cause, must be of the same type of harm that the plaintiff suffered. For example, where the evidence has shown that a dog had a prior propensity to attack birds, the second element of scienter cannot be established where harm was caused to a person.[8]

The harm also doesn’t have to be an animal “bite” such that courts have awarded damages for injuries arising from a pet attack resulting in the plaintiff being knocked off his bicycle where it was shown that the dog in question had a propensity to chase after cyclists and bark aggressively.[9]

A pet need not have caused a specific type of harm in the past for scienter to apply, and attributing certain propensities to a dog based solely on its breed requires a solid evidentiary foundation.

Under scienter, it is not necessary that the animal in question had actually done the particular kind of harm on a previous occasion; it is sufficient if, to the defendant’s knowledge, the animal had manifested a trait, inclination or propensity to do that type of harm.[10]

While there are some similarities between the causes of action under negligence and scienter, they are quite distinct especially since negligence does not require the plaintiff to prove that the type of harm they suffered is the same type of harm the animal had a propensity for. Under negligence, the duty of care analysis with respect to foreseeability is more flexible than the second branch of scienter in that the former considers collateral evidence when assessing proximity.

Lastly, while most claims will be brought under both causes of action to increase the likelihood of success, it is possible for a claim to fail on one cause of action yet succeed on another.

The Findings in Rae v Gadalla

In Rae, the court assessed evidence from key witnesses, both of whom testified about past aggressive behavior of Flex, prior to the incident giving rise to the lawsuit, including an earlier biting incident and aggressive lunging at neighbors. The testimony of these witnesses was central to the court’s reasons for finding liability under both negligence and scienter as the evidence established that the defendants had actual and constructive knowledge of Flex’s propensity to cause harm and be aggressive towards others.

The Plaintiff in Rae brought a claim for non-pecuniary damages in the range of $30,000 to $35,000. After comparing his claim to other past decisions, some of which involved more serious injuries (including psychological harm), Rae was awarded nominal damages of $5,000 taking into consideration his “Golden Years” claim as an elderly plaintiff.

Claim investigation strategies

When defending a pet attack claim under either or both causes of action, it is important to consider the following elements when investigating claims at an early stage:

  • Breed and lineage of the pet in question
  • Training and upbringing
  • History of behavioral issues
  • Prior incidents involving attacks
  • Collateral witnesses (neighbors, pet sitters, other pet owners)
  • Circumstances giving rise to the incident
  • Prior behavior of the plaintiff towards the pet or other pets
  • Prior claims brought by the plaintiff against other pet owners
  • Conduct discoveries of the parties early before memories fade

Investigating these claims early and being alert to the potential for these claims to blow up into complex lawsuits will help your legal team to accurately assess the risk of liability and provide prudent advice with respect to defending against liability.

[1] Janota-Bzowska v. Lewis, (1997), 43 B.C.L.R. (3d) 352 (C.A.)

[2] Draper v Hodder, [1972] 2 All E.R. 210 (C.A.)

[3] Garside v. Dougan, 2022 BCSC 799

[4] Evans v. Anderson, 2023 BCSC 143

[5] Fridman’s The Law of Torts in Canada, 4th ed (Toronto: Carswell, 2022) at p. 247 and 277

[6] Janota-Bzowska at para. 11

[7] Rae v. Gadalla, 2003 BCSC 1398, para 94

[8] Garside at para. 94

[9] Gallant v. Slootweg, 2014 BCSC 1579

[10] Evans at para 109.

Multi-Party Settlement Agreements Practice and Pitfalls by Andrew Epstein

2023.03.01 // Read More

An article by Lindsay LLP Associate Counsel, Andrew Epstein, was recently published by Risk Management Counsel of Canada (RMC). Read “Multi-Party Settlement Agreements Practice and Pitfalls” here.

Sohal v. Lezama: The Absolute Prohibition to Commencing Third Party Claims in British Columbia

2022.02.24 // Read More

Author: Silvia Purcarin, Associate

On January 29, 2021, the Court of Appeal for British Columbia decided that third party proceedings may not be brought after the expiry of the two-year limitation period under the Limitation Act, SBC 2012, c. 13 (the “New Limitation Act”). This decision has broad implications for multi-party proceedings in B.C.

Limitation Periods under the New Limitation Act in BC

There are currently two types of limitation periods in British Columbia, a “basic limitation period” and an “ultimate limitation period” – the old Limitation Act used the term “limitation period” interchangeably  to refer to both. The New Limitation Act introduced a definition for the “basic limitation period” as two years after the day on which the claim is “discovered” (as opposed to when the right to sue accrued at law, under the former Limitation Act). This basic limitation period is applicable to all claims, unless otherwise specified under the New Limitation Act (i.e. claims that enforce monetary judgments) or unless the claim is subject to a limitation period prescribed by another statute.

Under section 8 of the New Limitation Act, a claim is “discovered” when a person knows or ought to have known that he/she has a cause of action.

Section 16 of the New Limitation Act sets out the discoverability rules applicable to claims for contribution or indemnity (i.e. for commencing third party proceedings). Specifically, it provides that a claim for contribution or indemnity cannot be brought against a third party more than two years from either the time when the original claim was served, or, if it is later, two years from the date the claimant knew or reasonably ought to have known that such a claim for contribution or indemnity could be made. [1]

For present purposes, it is important to note that section 22(1) of the New Limitation Act gives the courts discretion to allow a person to commence a “related claim” even when the limitation period for such a claim has expired, as long as the “original claim” was commenced within its applicable limitation period. However, section 22(2) prohibits claims for contribution or indemnity after the expiry of the limitation period applicable to such claims.

The limitation period for commencing a claim for contribution or indemnity under the Negligence Act expires two years following discovery of the negligence claim (i.e. on the later of service of the Notice of Civil Claim or on the first day the plaintiff know or reasonably ought to have known that such a claim for contribution or indemnity could be made). In Sohal, the court considered whether section 22(2) of the New Limitation Act gives any discretion to the court to allow third party claims for contribution under the Negligence Act when the limitation period for such claims had expired.

Overview of Facts

The action in Sohal arose out of a motor vehicle accident that took place on October 27, 2012. The defendant Lezama struck the plaintiff Sohal with his vehicle. Lezama’s vehicle was owned by a rental car company, Enterprise Rent-A-Car (“Enterprise”), and had been rented by Lezama’s employer (the “Employer”) for Lezama to use.

Chronology of Events & Procedural History

A chronology of events is essential to understanding the arguments advanced by the parties in this case:

  1. October 27, 2012: the Accident occurred
  2. June 1, 2013: the New Limitation Act came into force
  3. October 27, 2014: the plaintiff brought an action for personal injury against Lezama, Enterprise and John Doe (who was later on identified as the Employer) via Notice of Civil Claim (“NOCC”);
  4. July 27, 2015: the plaintiff filed an Amended NOCC to correct Lezama’s name;
  5. Aug 1, 2015: the Amended NOCC was served on Enterprise;
  6. Sept 1, 2015: counsel representing both Lezama and Enterprise wrote to counsel for the plaintiff identifying the John Doe defendant as the Employer;
  7. Sept 15, 2015: Amended NOCC was served on Lezama;
  8. April 14, 2016: Response to Civil Claim filed by Lezama and Enterprise (subsequently, different counsel were appointed to represent each defendant);
  9. Feb 23, 2018: Lezama filed an application seeking leave of the court to add the Employer as a third party;
  10. March 28, 2018: the Employer filed an Application Response opposing Lezama’s application on the basis that section 22(2) of the New Limitation Act was a complete defence to both the claim itself and the application to add the two companies as third parties (section 22(2) prohibits the commencement of third party proceedings after the expiry of a limitation period applicable to that claim);
  11. May 7, 2018: Enterprise filed a separate application to add the Employer as a third party; and
  12. May 8, 2018: the Employer filed an Application Response opposing Enterprise’s application on the same grounds as above.

Judicial History

Chambers Hearing

On May 30, 2018, both applications were heard in chambers and the Master granted the leave sought by both defendants to file third party claims against the Employer based on claims of vicarious liability and negligence. The Master ruled that the two-year limitation period applicable to the defendant Lezama’s claim for contribution and indemnity had not expired (because his application was filed in February 2018). However, the Master found that the limitation period applicable to the defendant Enterprise’s claim for contribution and indemnity had expired (as their application was filed in May 2018, 2 years and one month after the date of filing of the Response to Civil Claim), but exercised her discretion under Rule 3-5 of the Supreme Court Civil Rules, to permit the claim to be brought notwithstanding expiry of that limitation period, thereby dismissing the defendant’s argument that s. 22(2) of the New Limitation Act prohibited the third party proceedings.

Supreme Court Decision

The Employer appealed the Master’s decision arguing that the third party proceeding was a transitional claim (under section 30 of the New Limitation Act) and the New Limitation Act applied, thereby barring the defendants’ claims to add it as a third party to the lawsuit. The defendants argued that the old Limitation Act applied and their third party claims were not time barred because the words “court proceeding” in section 22(2) is limited to originating proceedings for contribution (i.e. new/separate actions in respect of a contribution claim), excluding third party proceedings.

Mr. Justice Kent disagreed with the defendants’ reasoning and highlighted that, pursuant to Rule 1-1 of the Supreme Court Civil Rules, a Third Party Notice is a form of “originating process”; accordingly, the Third Party Notice” originates the contribution claim. It follows, then, that the contribution claim is a
“pre-existing claim” within the meaning of section 30(1) as it is based on an act or omission that took place before June 1, 2013 and no court proceeding was commenced before that date.

On October 8, 2019, Mr. Justice Kent reversed the decision of the Master and ordered that the Third Party Notices be struck out on the basis that the proposed third party claims were subject to a two-year limitation period under the New Limitation Act, and accordingly were time-barred (section 6(1) of the New Limitation Act stipulates that the proposed claims for contribution or indemnity “must not be commenced”).

The following points from Mr. Justice Kent’s analysis are noteworthy:

  1. Under the New Limitation Act, the starting date for a limitation period is the date on which the claim is “discovered” and not when the right to sue on a cause of action accrues at law, as it was the case under the old Limitation Act.
  2. Pursuant to s. 6(1) and 16 of the New Limitation Act, the limitation period for commencing a court proceeding in respect of a claim for contribution or indemnity under the Negligence Act is two years following “discovery” of that claim. Such “discovery” occurs on the later of the service of the underlying lawsuit or the first day the claimant knew or reasonably ought to have known that such a contribution claim could be made (in this case, the discovery date was August 2015 when the Amended Notice of Civil Claim was served on Enterprise).
  3. Third Party Notices commence a court proceeding in relation to a claim for contribution or indemnity within the meaning of s. 22(2) of the New Limitation Act. Such proceedings will constitute a “pre-existing claim” within the meaning of s. 30(1) of the Act if they can be said to be based on an act or omission that took place before June 1, 2013 when the new Act came into force.
  4. Rule 3-5(4) of the Supreme Court Civil Rules is a procedural rule, subordinate to the provisions of the New Limitation Act. The Act creates a limitation period for the enforcement of claims for contribution or indemnity, the expiry of which creates a substantive legal defence to the claim. That defence cannot be extinguished by a procedural rule. Therefore, the discretion granted to the court by Rule 3-5(4) does not permit the court to extinguish a proposed third party’s substantive legal defence to a contribution claim based on an expired limitation period.
  5. On an application to add a third party, the court should adopt the following approach:
  6. if it is clear the limitation period has expired, the application under Rule 3-5(4) to issue a Third Party Notice beyond the 42-day time limit must be dismissed;
  7. if it is clear the limitation period has not expired, the court may exercise its discretion under Rule 3-5(4) taking into to account the well-established factors for the exercise of that discretion; and
  8. if the parties disagree as to whether the limitation period has expired, and the court is unable to determine this issue on the leave application, the court should consider the factors for the exercise of its discretion under Rule 3-5(4), and if it is otherwise inclined to grant leave, direct that the merits of the limitation defence be decided in the third party proceedings on a more fulsome evidentiary platform.

Court of Appeal

Lezama and Enterprise appealed the decision of Mr. Justice Kent on the basis that the judge erred in his interpretation of sections 22(2) and  30 of the New Limitation Act. Specifically, the defendants/appellants argued that the applicable limitation period for their third party claim had not expired and the old Limitation Act should apply for the following reasons:

  1. the term “court proceeding” used in sections 6, 22 and 30 of the New Limitation Act refers only to an originating proceeding, and not to claims brought by third party notices;
  2. the words “if a pre-existing claim was discovered before the effective date” in subsections 30(3) and (4) refer to the discovery of the underlying tort claim, and not to the discovery of the third party claim for contribution;
  3. since the tort claim was discovered before June 1, 2013, the old Limitation Act applies; and
  4. even if the New Limitation Act applies, section 22(1) preserves their ability to bring third party proceedings.

With respect to the section 30 issue, the Employer pointed out that the defendants’ reasoning leads to the conclusion that “a third party claim for contribution in an ongoing action can never meet the definition of a ‘pre-existing’ claim in section 30(1)”. The Court of Appeal agreed.

The “act or omission” upon which the third party claim is based is different from the “act or omission” upon which the underlying tort action is based. Thus, the underlying motor vehicle claim was a “pre-existing claim” (i.e. MVA took place in October 2012 and proceedings were initiated in October 2014), but the third party claim for contribution does not satisfy the first part of the definition in section 30(1) – it is not a claim based on an act or omission that took place before the effective date” since the cause of action for a contribution claim only arises after a defendant has been found liable. As the Court put it at para 78, “the basis of a claim for contribution is a statutory right to restitution that flows from findings of liability, not from the commission of a tort. The connection to the underlying claim is not to the act or omission that gives rise to the tort claim.  Rather, the connection arises from the bare fact of the tort action itself, because it seeks to impose liability”.

Therefore, the notion of a “pre-existing claim” under section 30(1) does not include claims for contribution in ongoing lawsuits. Accordingly, the defendants’ third party claims are governed by the New Limitation Act.

Lastly, the Court held that section 22(1) prevents the defendants from initiating third party proceedings given that the limitation period to do so had expired, because section 22(2) prevents such proceedings after the expiry of the limitation period in accordance with sections 6(1) and 16 of the New Limitation Act. The appeal was dismissed.

Conclusion

Pursuant to Rule 3-5(4) of the Supreme Court Civil Rules, a party of record who is not a plaintiff in an action may commence third party proceedings for contribution against any person by filing a Third Party Notice with the court registry. The Third Party Notice may be filed without leave of the court, if it is filed within 42 days of being served with a Notice of Civil Claim or Counterclaim; if the Third Party Notice is filed outside the 42-day deadline, then the Third Party Notice may be filed at any time with leave of the court.

The New Limitation Act altered limitation periods applicable to claims in British Columbia in several ways. First, it expressly addresses claims for contribution or indemnity; second, it establishes that the running of time commences from the date when a claim is discovered; and third, it provides that a two-year limitation period applies to contribution or indemnity claims under the Negligence Act. In Sohal v. Lezama, the Court of Appeal confirmed that section 22(2) of the New Limitation Act bars a claim for contribution or indemnity after the limitation period for such claim has expired.

While the former Limitation Act allowed the court to consider delay and prejudice in determining whether to strike a third party notice for contribution or indemnity, the New Limitation Act puts pressure on defendants to identify potential third party claims early on so that third party proceedings can be brought in a timely manner.

Key Take-Away

Defence counsel and claims examiners alike ought to be aware that the courts have no discretion to grant leave to parties who wish to file third claims for contribution or indemnity once the limitation period applicable to such claims has expired.

[1] In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, the Supreme Court of Canada has narrowed the scope of discoverability for the purposes of calculating limitation dates and held that a plaintiff will have “discovered” a claim when he/she has knowledge of the material facts upon which a plausible interference of liability on the defendant’s part can be drawn. Although this case dealt with the New Brunswick’s Limitation of Actions Act, its ratio extends to the rest of the provincial limitation statutes.

Nelson (City) v. Marchi Case Summary

2021.12.07 // Read More

Supreme Court of Canada Clears the Way to Characterizing Core Policy Decisions

 

Author: Corey M. Smith, Articled Student

Case: Nelson (City) v. Marchi, 2021 SCC 41

The Accident

In October 2021, the Supreme Court of Canada ruled that the City of Nelson (the “City”) could be held responsible for injuries caused by its snow clearing decisions.

After a heavy snowfall in Nelson, British Columbia, between January 4th and 5th 2015, the City started plowing and sanding streets pursuant to its snow clearing and removal policies. The City’s work crews cleared snow from angled parking stalls on Baker Street, located in the City’s downtown core. In plowing the parking stalls, the work crews created a snowbank along the curb that separated the parking stalls from the sidewalk. On January 6th, Ms. Marchi, parked in one of the angled parking stalls on Baker Street and attempted to cross over the snowbank. While attempting to cross the snowbank, Ms. Marchi’s foot fell through the snow and she seriously injured her leg.

Judicial History

Ms. Marchi sued the City alleging that it had been negligent in leaving the snowbank along the road with no space for pedestrians to cross onto the sidewalk. At trial, the judge agreed with the City that its snow clearing decisions were “core policy” decisions. Accordingly, the judge concluded that the City did not owe Ms. Marchi a duty of care as its snow clearing decisions were immune from liability. The trial judge also found that, in the alternative, there was no breach of the standard of care, or in the further alternative, that if there was a breach, Ms. Marchi was the proximate cause of her own injuries.

Ms. Marchi appealed to the BC Court of Appeal which disagreed with trial judge on all three of its conclusions and ordered a new trial. The City then appealed that decision to the Supreme Court of Canada.

Appeal to the Supreme Court of Canada

The Supreme Court agreed with the BC Court of Appeal that the City could be held responsible for its snow clearing decisions.

Justices Karakatsanis and Martin for a unanimous court agreed with the BC Court of Appeal that the trial judge erred on all three conclusions.  In terms of duty of care, the City’s decisions about its snow clearing were not core policy decisions immune from negligence liability. As such, they found that the City owed Ms. Marchi a duty of care.

The Court found that the present case fell under an already established duty of care based on Just v. British Columbia, [1989] 2 SCR 1228. The category established in Just involves cases where a public authority has undertaken to maintain a public road or sidewalk and a plaintiff alleges injury due to failure of the public authority to maintain the road or sidewalk in a reasonably safe condition.

This finding meant a duty of care would be imposed on the City unless they could show that their snow clearing decisions were protected by core policy immunity. The Court noted that while core policy decisions are exempt from claims in negligence, the operational implementation of policy may be subject to a duty of care in negligence.

They went on to discuss the rationale behind shielding core policy decisions from liability in negligence, which is to maintain the separation of powers between the judiciary and the executive. In the Court’s words, subjecting core policy decisions to private law duties of care would “entangle the courts in evaluating decisions best left to the legislature or the executive.”

The Court set out the following four factors to help identify core policy decisions:

  • The level and responsibilities of the decision-maker: the closer the decision-maker is to an elected official, the higher the possibility that judicial review of negligence will raise a separation of powers concern.
  • The process by which the decision was made: more deliberative decisions will engage separation of powers concerns to a greater extent.
  • The nature and extent of budgetary considerations: decisions involving budgetary allotments to government agencies are more likely to engage separation of powers concerns than day-to-day budgetary decisions of individual employees.
  • The extent to which the decision was based on objective criteria: decisions which weigh competing interests and require making value judgments are more likely to engage separation of powers concerns.

Based on these factors, the Court found that the City had not proven its decision to clear snow was a core policy decision. The Court allowed the appeal, set aside the order dismissing Ms. Marchi’s action and ordered a new trial.

Takeaways

The Court’s reasons clarify the analysis of core policy versus operational decisions. The primary consideration in shielding core policy decisions from liability in negligence is to protect the separation of powers. Based on this consideration, the Court outlined a number of factors to consider in assessing whether a core policy immunity defence will apply. For immunity to apply, the decision will have to be high-level and deliberative, made by someone close to an elected government official and involve a weighing of competing interests characteristic of government officials in their decision making process.

This decision has important implications for municipalities and their insurers. Municipalities will likely wish to review their decision making processes in terms of the discretion afforded to individual employees versus the involvement of municipal officials.

Overall, the decision clears the way for parties to better determine whether a defence of core policy immunity may apply.

 

Clarification from the Supreme Court of Canada on the Interpretation of Releases

2021.08.30 // Read More

Clarification from the Supreme Court of Canada on the Interpretation of Releases

Author: Corey M. Smith, Articled Student

Case: Corner Brook (City) v. Bailey, 2021 SCC 29 

Background 

On March 3, 2009, while driving her husband’s car, Mrs. Mary Bailey struck a Corner Brook City (the “City”) employee who was performing road work. The employee sued Mrs. Bailey for injuries he sustained in the accident.

In a separate action, Mrs. Bailey and her husband sued the City for property damage to their car and the physical injury Mrs. Bailey suffered. Eventually, the Baileys reached a settlement with the City that released the City from liability relating to the accident and discontinued their action. The release stated that the Bailey’s agreed to release the City from all demands and claims of any kind or nature whatsoever arising out of the 2009 accident.

Nearly five years later, Mrs. Bailey brought a third party claim against the City for contribution or indemnity in the action brought against her by the employee. A third party claim involves a party to an action other than the plaintiff seeking relief from another party. Mrs. Bailey’s third party claim in effect asked that the City be liable for any injury to the employee if Mrs. Bailey were found to be responsible for the employee’s injuries.

In response, the City brought a summary trial application on the basis that the release barred the third party claim. Mrs. Bailey’s position was that the release did not bar the claim because the third party claim was not specifically contemplated by the City and the Baileys when they signed the release.

The application judge concluded that the release barred Mrs. Bailey’s third party claim against the City. The Court of Appeal allowed the appeal and reinstated Mrs. Bailey’s third party notice. The City then appealed to the Supreme Court of Canada.

The Supreme Court agreed with the application judge and the City. They allowed the City’s appeal and held that the release barred Mrs. Bailey’s third party claim against the City.

Releases to be interpreted like any other contract 

The Supreme Court clarified that releases are contracts and that the general principles of contractual interpretation apply to them. The Court referred to its previous decision in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 that directs courts to “read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract”. Based on Sattva, courts should use objective evidence of the facts at the time of the agreement to aid in their interpretation. After considering Sattva, the Court held that there is no special rule of contractual interpretation that applies to releases.

The Court discussed application of the Blackmore Rule which previously set out a special approach to the interpretation of releases. The Blackmore Rule stated that a release would not apply to circumstances of which a party had no knowledge of when the release was executed. The Blackmore Rule also meant that if a release was so general as to include matters never contemplated by the parties, a party

would be entitled to relief. The Court said that the Blackmore Rule is no longer useful in interpreting releases and should no longer be referred to because Sattva has taken over its function.

In the present case, the release included “all actions, suits, causes of action . . . foreseen or unforeseen . . . and claims of any kind or nature whatsoever arising out of or relating to the accident which occurred on or about March 3, 2009”. The Court found that Mrs. Bailey’s third party claim came within the plain meaning of the words of the release. They also found that the surrounding circumstances confirmed that the parties had objective knowledge of all facts underlying Mrs. Bailey’s third party claim when they agreed upon the release. The parties had also limited the scope of the release to claims arising out of the 2009 accident and there was nothing in the surrounding circumstances to suggest departing from the plain meaning of the release.

Further considerations

The Court offered a number of further considerations for the interpretation of releases. Distinctions between claims based on facts known to both parties and claims based on facts known only to one party may be useful in assessing whether parties mutually intended to release a particular kind of claim. However, the ultimate question in interpreting a release is whether a claim is of the type to which a release is directed. Whether a release covers a claim depends on the wording and surrounding circumstances of the release in each case.

Releases may cover unknown future claims. Yet the broader the wording of a release, the more likely the release will conflict with the surrounding circumstances of the agreement. In contrast, releases that include wording as to whether they will cover particular subject matter or time periods are less likely to lead to disputes.

 

 

What counts as “using” a cell phone under the Motor Vehicle Act?

2021.08.06 // Read More

What counts as “using” a cell phone under the Motor Vehicle Act?

Author: Corey M. Smith, Articled Student

Case: R. v. Rajani, 2021 BCCA 292 (CanLII)

The Decision

Resting your phone or other electronic device on or under your leg may be an offence under the Motor Vehicle Act (the “MVA”). In R. v. Rajani, 2021 BCCA 292, the Court of Appeal held that using a cell phone is not limited to having it in a person’s hands. In other words, if someone is supporting a phone or other electronic device in any way with their body, this may count as using an electronic device.

Mr. Rajani was issued a ticket for using an electronic device while driving. The ticket was issued after an officer approached Mr. Rajani’s car and found a cell phone connected to a cord face-up in his lap. At the Court of Appeal, Mr. Rajani argued he had the phone wedged between his thigh and the seat, while the officer said the phone was on Mr. Rajani’s lap facing up. The Court held that in either scenario Mr. Rajani was holding the phone by physically supporting it with a part of his body in a position in which it could be used.

Under the MVA, a person must not use an electronic device while driving or operating a motor vehicle on a highway. The word “use” in the MVA includes holding the device in a position in which it may be used.

The Court of Appeal determined that “holding” is not limited to holding with one’s hands. The Court looked to common dictionary definitions of “holding” and concluded that physically grasping, carrying, or supporting a device with any part of one’s body in a position which the device may be used, are all considered holding.

Significance

The important question raised by the case is whether the prohibition against using an electronic device while driving applies to a cell phone that is resting on or wedged beneath someone’s leg but not in their hands, and whether this counts as “holding”? More generally, should the words “use” and “holding” be interpreted broadly enough to include electronic devices being supported by a driver in some way but not in their hands? Based on this decision, it appears that the courts will take a broad approach to interpreting “using” an electronic device. Under this approach, “using” includes when someone supports a device in any way with their body, and not simply when they are holding it with their hands.

 

The Guiding Principles of Management Fees: Contemporary Trends in British Columbia Litigation.

2020.02.05 // Read More

The Guiding Principles of Management Fees: Contemporary Trends in British Columbia Litigation.  

By: Tiffany Tsang and David M. Giroday 

Introduction

An award for management fees, when justified, can be granted by the court to compensate a plaintiff for the cost of hiring an investment manager to handle the investment of their damages award in a personal injury matter. These are more often awarded where the plaintiff has limited investment experience and in instances where a plaintiff receives a sizeable award. In such circumstances, a consideration of management fees by the court and counsel may be necessary.

Medical Marijuana in Personal Injury Actions

2018.07.05 // Read More

Tiffany P.K. Tsang and Callan W. MacKinlay

Originally presented at CLEBC’s Personal Injury Conference, 2018, held at Vancouver, BC on June 15, 2018.

  1. Introduction

The purpose of this paper is to provide an overview of the current state of the law and jurisprudence on the current and potential future guidelines for authorization of medical marijuana by medical practitioners; judicial considerations for awarding versus denying medical marijuana claims; and the factual considerations that counsel should pay attention to when seeking or defending an award for medical marijuana.