So you have a drone: Does your insurance cover damage?

So you have a drone: Does your insurance cover damage?

Excerpted article was written by | By Elizabeth Dinan

PORTSMOUTH — State insurance regulators advise property owners who fly drones, or have family members who fly drones, to review their insurance policies to ensure they’re covered for liability, while some insurers are limiting or eliminating drone-related coverage.

“It is not unusual for the insurance market to develop forms to address new and emerging risks,” said Danielle Barrick, director of communications for the New Hampshire Insurance Department. “Drone liability would qualify as an emerging risk. To that extent, it is a new trend.”

Barrick said a standard homeowners insurance policy provides coverage for drone damage. What is new, she said, is that some insurers are adding an “exclusionary endorsement,” sometimes called a rider, that removes or limits coverage otherwise provided by the policy.

“Thus, if a drone user wishes to be protected or to have greater protection, the drone user should either have their current insurer issue a policy without an exclusionary endorsement related to drones, or find an insurer that will issue such a policy,” she said. “As the homeowners insurance market is a competitive one, the drone user should be able to obtain multiple quotes for the desired level of coverage.”

Professional drone photographer David Murray of New Castle said he has a specific insurance policy for his drone operation and thinks all drone operators should be responsible for any damage or injury they cause.

“Just like automobile operators,” he said.

But, Murray added he also thinks insurance companies shouldn’t back away from claims for damage caused by drones.

“I think kids playing in the back yard with a ball and bat can do similar damage,” he said, noting there aren’t insurance exclusions for those accidents. “Why one and not the other?”

Murray said there are insurance options that cover single drone flights and blanket policies to cover periods of time, like an auto insurance policy.
“Drones are new so people want to fixate on them and be afraid of them,” he said. “In terms of the danger they pose, you can do more damage with a car. And you certainly can do more damage with a gun. I think it’s appropriate to step back and reasonably look at it.”

According to the state Insurance Department, “the competitive homeowners insurance market allows residents to choose a policy that will provide coverage for drones.” Barrick said people with drones should ensure they have the coverage they want while the market also allows people without drones “to seek a policy that excludes liability coverage for drone use, which might result in a lower premium.”

“This is how a competitive market is designed to operate,” she said.

The Insurance Department does not collect data detailing how often an insurer includes “a particular endorsement,” like drone limits or exclusions, adding “exclusionary drone endorsements are a fairly new type of coverage form.”

Murray said drone hobbyists tend to fly small, lightweight drones and would “have to work pretty hard to cause some damage.”

“Most are made of toy-grade plastic and weigh less than two pounds,” he said. “Most have less mass than a seagull.”

He said some drone controls have more intelligence for piloting than others, meaning some require more work to control than others. He said it also takes many hours of practice to master drone flying.
“I think some people have a good experience when they start flying and get overconfident,” he added. Some insurance policies are also now citing exclusions of coverage for damage caused by drones that interfere with aircraft. Murray said that’s ”

Some insurance policies are also now citing exclusions of coverage for damage caused by drones that interfere with aircraft. Murray said that’s “a major source of potential concern” that could cause loss of life, but is highly unlikely to occur. He said anyone who flies a drone should know it’s prohibited within five miles of an airport or tower and that the law is printed on drone packaging.

He said that’s why the FAA requires all drones weighing more than a half pound to be registered and marked with identifying numbers.

“The department’s advice for drone owners and all insureds is to work with their insurer and/or insurance agent to ensure that they have the appropriate level of liability coverage and to not be reluctant to shop their insurance to find the insurer and policy that best fits their needs,” Barrick said.

Source: SeaCoastOnline

Top 10 Issues For Employers, Issue #7: Obligations When Terminating Without Cause

Top 10 Issues For Employers, Issue #7: Obligations When Terminating Without Cause

Article by Labour & Employment Group
Blake, Cassels & Graydon LLP

This is the seventh instalment in our Top 10 Issues for Employers series. This issue addresses termination entitlements upon a “without cause” dismissal.

OVERVIEW

Understanding an employee’s entitlements upon a without cause dismissal is an essential step towards avoiding unnecessary wrongful dismissal claims. Canadian law imposes obligations on employers to provide their employees with certain entitlements in the event of a without cause dismissal. Since there is a very high bar for establishing “just cause” — which generally permits an employer to provide no notice or other entitlements upon dismissal — the vast majority of terminations in Canada will be without cause.

REASONABLE NOTICE OF TERMINATION

In the absence of an enforceable termination clause in a written employment contract, an employee’s termination entitlements will be governed by Canadian common law (with the exception of Quebec, discussed below). One obligation imposed upon employers by the common law is to provide employees with reasonable notice of termination of employment, or pay in lieu of reasonable notice, in the absence of just cause for dismissal.

There is no fixed formula for determining reasonable notice in any given case. There are, however, several factors that courts consider when determining reasonable notice, including the availability of similar employment as well as the employee’s age, length of service, position and level of compensation. In essence, the courts aim to identify, on a case-by-case basis, the length of notice that the employee will need to find alternate work of a similar nature. By way of example, reasonable notice generally ranges from a few weeks up to 24 months depending on the above factors, but there are exceptions.

The concept of reasonable notice signifies actual or written notice. In principle, the employee is expected to continue his or her active employment during the applicable notice period. As an active employee, the individual would usually be entitled to all elements of his or her compensation package during the notice period. However, employers typically provide an employee with pay in lieu of notice or a “package” upon termination of employment rather than actual or working notice. Thus, in the pay in lieu of notice scenario, to mirror what they would have received had they been provided with actual notice, employees are generally entitled to payment reflecting all elements of their compensation package, including, for example, salary, benefits and pro-rated bonus or other incentive compensation (subject to the terms of any applicable policies or plans).

Written employment agreements may modify and/or limit an employer’s common law obligations. In general terms, where there is a proper and enforceable employment contract that specifies what the employee will receive upon termination of employment, then it will be the employment contract — and not the common law — that the employer will rely on in determining an employee’s entitlements upon termination. However, any contract that a court finds as providing less than the employee’s minimum statutory entitlements will be viewed as unenforceable and an employee in such a scenario will be entitled to reasonable notice of termination.

QUEBEC CONSIDERATIONS

Common law principles are not applicable in Quebec. Rather, employers’ obligations are established by the Civil Code of Québec, which provides that an employee can claim reasonable notice (or compensation in lieu of notice) of the termination of his or her employment, such that an employee’s entitlements upon a without cause dismissal in Quebec are substantially similar to those of employees in the common law provinces and territories.

That being said, Canadian employers should be aware of the fact that there are unique legislative and other requirements relating to employment in Quebec that are not present in the common law provinces and territories.

STATUTORY MINIMUM STANDARDS

Employment standards legislation in all Canadian jurisdictions sets out minimum notice (or pay in lieu of notice) obligations for employers when they dismiss an employee without cause. It should be emphasized that the statutory minimums prescribed by employment standards legislation with respect to notice and severance are just that — minimum standards. They represent the lowest possible amounts that an employee is entitled to receive on dismissal without cause. An employer cannot contract out of the statutory minimum entitlements.

Generally, an employee’s entitlement to statutory minimum notice of dismissal increases with his or her length of service. For example, in Ontario, employees are generally entitled under statute to one week’s notice (or pay in lieu of notice) for each completed year of employment, to a maximum of eight weeks. Although employees’ entitlement to notice of termination of employment varies slightly from province to province, employment standards legislation across the Canadian jurisdictions currently provide for a maximum statutory notice requirement of eight weeks or less.

Further, many employment standards statutes include enhanced notice requirements for employers that effect a mass termination of employment, which is defined in most provinces and territories as the dismissal of 50 or more employees in a span of four weeks or less (although in several provinces the threshold is as low as 10 employees).

In Ontario and the federal jurisdiction, employment standards legislation also requires employers to provide employees with statutory severance payments (in addition to statutory notice or pay in lieu of notice) in certain circumstances. In Ontario, employees who have five or more years of service at the time of their dismissal are entitled to statutory severance pay, if their employer has a payroll of C$2.5-million or more, or if the dismissal is part of a discontinuance of a business involving the termination of 50 or more employees in a period of six months or less. Severance pay is equal to one week’s pay for each completed year of employment and a proportionate amount of one week’s pay for a partial year of employment, to a maximum of 26 weeks’ pay. In the federal jurisdiction, an employee is entitled to statutory severance pay if he or she has completed 12 consecutive months of employment with an employer before being dismissed. Statutory severance pay in the federal jurisdiction is calculated as the greater of two days’ wages for each year of employment completed by the employee and five days’ wages.

BONUS AND OTHER INCENTIVE AWARDS

Even after the appropriate length of notice has been determined, there are often still disputes over whether compensation for lost bonus or other incentive awards should be included. As mentioned above, when employees are provided with pay in lieu of notice, they are normally entitled to all elements of compensation that they would have received had they remained employed during the notice period, which may include bonus and other incentive awards. However, the terms of any underlying bonus or incentive plans or policies are relevant to the determination of whether compensation for such awards should be included as part of an employee’s termination entitlements. For this reason, employers should ensure they have well-drafted plan documents.

CONCLUSION

Determining an employee’s entitlements upon a without cause dismissal may not always be straightforward. It requires considering whether common law reasonable notice applies or whether a contractual provision (including those which may limit an employee to the statutory minimums) governs an employee’s termination entitlements. If common law reasonable notice applies, the notice period must take into account various factors, including the availability of similar employment as well as the employee’s age, length of service, position and level of compensation. On the other hand, a contractual termination provision must be checked to ensure it is enforceable and that it complies with applicable statutory minimum standards. Finally, it must be determined which elements of compensation will be owed during the notice period, including bonus or other incentive awards.

Investing in well-drafted employment contracts and plan documents at the outset, and ensuring they are regularly reviewed and updated, is a good way to avoid potential pitfalls and bring additional certainty and consistency to the termination process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

B.C. emergency programs receive $80 million for protection efforts

VICTORIA _ The British Columbia government will spend $80 million this year in emergency programs, up from the $65 million it spent last year.

Naomi Yamamoto, minister of state for emergency preparedness, says $32 million will go to the Union of B.C. Municipalities to establish a fund that supports disaster response and recovery programs, including mapping evacuation routes.

She says the government will provide $10 million to numerous public safety groups, including Vancouver’s heavy urban search and rescue team, to support skills training and purchase equipment.

Yamamoto says the $80 million comes from the government’s budget surplus and money in its emergency preparedness fund.

She says spending in community emergency programs will help the province cope with floods, fires and earthquakes.

Bill Adams of the Insurance Bureau of Canada says there are estimates that a major earthquake in southern B.C. could cause damage valued at $75 billion.

Alberta insurance broker accused of defrauding $540K from employer

LETHBRIDGE, Alta. — A former insurance broker in southern Alberta has been charged with defrauding his employer of more than $540,000 over a period of almost nine years.

Police in Lethbridge say an investigation began last October after an employee at Schwartz Reliance noted discrepancies in accounts managed by one of the partners.

Investigators allege that between January 2008 and last September someone created fake accounts and altered existing accounts to generate higher commissions for personal gain.

Police say no clients suffered any losses.

Stephan James Evanson, who is 36 and from Stirling, Alta., is charged with fraud over $5,000 and money laundering.

He has been released from custody and is to appear in court on March 27.

Banks and Insurance Companies Announce Canadian Business Growth Fund of up to $1B

Canada’s leading banks and insurance companies today announced their intent to create a fund to invest up to $1 billion in Canadian businesses over the next decade to bolster growth and innovation.

The Canadian Business Growth Fund will make investments in small- and medium-sized Canadian companies seeking long-term, patient, minority capital to finance continued growth and to allow the scaling up of existing operations. Typical investment amounts in each company will range between $3 million and $20 million. Importantly, the fund will facilitate mentorship and access to talent pools to help these businesses achieve their full potential.

The fund is expected to have initial capital commitments of over $500 million, with the possibility for future contributions of up to $1 billion in future years, depending upon both demand for investment and the fund’s performance. Initial participants include: BMO Financial Group, CIBC, Royal Bank of Canada, Scotiabank, The Toronto-Dominion Bank, Manulife, Sun Life Financial, Great-West Life, National Bank of Canada, HSBC Bank Canada, ATB Financial, Laurentian Bank of Canada, and Canadian Western Bank. Other institutions are considering involvement and a broad range of financial institutions will be able to invest in the fund when it is formed.

The fund will operate as an independently managed entity, supported by its investors with its own board of directors and management team, with an objective of having offices and personnel across Canada. The board will be comprised of independent directors and representatives from the initial investors. The Fund will begin a search for an independent chair, along with a chief executive officer, with the intention to have an executive team in place to start deploying capital within the next 12 months.

The executive team will also be tasked with developing an advisory network to provide mentorship, thereby closing some of the knowledge gaps preventing many mid-sized companies from achieving their full growth potential at home and globally. The aim is to help business founders maintain effective control of their companies to execute on their vision as they grow and expand.

This announcement follows the publication of the second report from the Minister of Finance’s Advisory Council for Economic Growth, which identified a gap in the Canadian market for long-term capital and recommended the creation of a private sector-led growth fund for minority equity stakes in companies. One of the goals of the Fund is to ultimately help Canadian companies grow outside of Canada, creating a vibrant, innovative and diversified economy that will spur the creation of jobs and growth for our country.

A further announcement will be made in due course.

BGF Board Representatives: ATB Financial – Curtis Stange, Bank of MontrealNadim Hirji, Scotiabank – Philip Smith, CIBC – Stephen Forbes, Manulife – Vipon Ghai, National Bank of CanadaMark Mulroney, Royal Bank of CanadaJamie Anderson, Toronto-Dominion Bank – Barbara Hooper.

SOURCE CIBC – Corporate

For further information: For media inquiries: ATB Financial, Glenn Kubish, GKubish@atb.com, 780-408-6529; BMO Financial Group, Ralph Marranca, Ralph.Marranca@bmo.com, 416-867-3996; Canadian Western Bank, Matt Evans, Matt.Evans@cwbank.com, 780-405-0198; CIBC, Caroline Van Hasselt, Caroline.VanHasselt@cibc.com, 416-784-6699; Great-West Life, Tim Oracheski, Tim.Oracheski@gwl.ca, 204-946-8961; HSBC Bank Canada, Sharon Wilks, Sharon_Wilks@hsbc.ca, 416-868-3878; Laurentian Bank of Canada, Louise Bergeron, Louise.Bergeron@BanqueLaurentienne.ca, 514-284-4500 ext : 4840; Manulife, Sean B. Pasternak, Sean_Pasternak@manulife.com, 416 852-2745 ext: 222745; National Bank of Canada, Claude Breton, Claude.Breton@bnc.ca, 514 394-8644; Royal Bank of Canada, Paul French, Paul.French@rbc.com, 416-974-3718; Scotiabank, Heather Armstrong, Heather.Armstrong@scotiabank.com, 416-933-3250; Sun Life Financial, Catherine Melville, Catherine.Melville@sunlife.com, 416-408-7826; The Toronto-Dominion Bank, Maria Saros, Maria.Saros@td.com, 416-983-4093

Canada: CASL’s Private Right Of Action Coming This Summer

Article by Wendy J. Wagner

Canada’s Anti-Spam Legislation (CASL) establishes a highly restrictive regime for the sending of marketing and promotional emails and texts (commercial electronic messages or CEMs). The enforcement risks associated with CASL will be dramatically heightened as of July 1, 2017, when the provisions enabling a statutory private right of action (PRA) come into force.

The PRA will allow private individuals and organizations to seek significant damages from businesses that violate the key provisions of CASL. To prepare for this new reality, organizations should review their CASL compliance program to ensure that it is adequate to establish a due diligence defence against an allegation of non-compliance.

CASL Overview

The provisions of CASL relating to the sending of CEMs came into force on July 1, 2014 and generally require prior consent to send a CEM and prescribe certain message content requirements, including a specific form of unsubscribe. Enforcement activity by the CRTC has emphasized that the onus is on the sender of the CEM to prove that express consent was properly obtained. In addition, while organizations can rely on specific categories of implied consent in order to send CEMs, these categories are strictly defined and to date have been narrowly interpreted by the CRTC.

Other provisions of CASL impose distinct obligations relating to the transmission of electronic messages and the installation of computer programs.

CASL provides for significant statutory penalties in the event of a contravention of the law. For businesses, the maximum penalty is $10 million. To date, the CRTC has imposed fines as high as $1.1 million for non-compliance.

The Private Right of Action

On July 1, 2017, sections 47 to 51 and 55 of CASL will come into force to establish a  private right of action pursuant to which individuals and organizations may apply to a court to obtain damages for contraventions of the law. Under section 47(1), any individual, partnership, corporation or association may initiate an application by alleging a violation of CASL and applying to a court of competent jurisdiction. The effect is to allow privateactors, and not just the public bodies charged with enforcing the Act, to seek redress for prohibited conduct.

Section 51(1) of CASL sets out the penalties that may be imposed by a court if it is satisfied that the violations alleged in the application have occurred. Under section 51(1)(a), the court may order that the respondent pay compensation in an amount equal to the actual loss or damage suffered, or expenses incurred by the applicant. In addition, under section 51(1)(b), the court may order that the respondent pay the applicant the following amounts in non-compensatory (i.e. statutory) damages:

  1. For a contravention of section 6: $200.00 for each contravention, not exceeding $1,000,000.00 for each day on which a contravention occurred;
  2. For a contravention of section 7 or 8, $1,000,000.00 for each day on which a contravention occurred;
  3. As a general rule, for a contravention of section 9: $1,000,000.00 for each day on which a contravention occurred.

The Act also exposes senior corporate officials to these large monetary penalties if they directed, authorized, assented to, acquiesced in or participated in the commission of the contravention. Under section 55 of CASL, where more than one person is determined to have contravened the act on a section 47(1) application, all of those persons are jointly and severally liable for the payment of the amounts ordered by the court under section 51(1).

While the language of CASL that allows for imposition of the penalties is permissive and the law expressly states that the purpose is not to punish but rather to promote compliance, it remains to be seen how harshly the penalties will be applied. To date, the law has been interpreted restrictively and significant penalties have been imposed even against those businesses that have fully cooperated with the CRTC in its investigation.

The Availability of a Due Diligence Defence

Section 54(1) of CASL allows for a due diligence defence that provides an opportunity for businesses to avoid liability by showing that they took reasonable steps to avoid the violations. The CRTC recently has identified several measures that should be taken by businesses to comply with CASL, and which may aid in the establishment of a due diligence defence. Notably, the CRTC suggests that senders of commercial electronic messages maintain:

  • Written policies and procedures regarding CASL compliance;
  • The documented methods through which consent was collected;
  • All evidence of express and implied consent (e.g. audio recordings, copies of signed consent forms, completed electronic forms) from consumers who agree to receive CEMs;
  • All unsubscribe requests and resulting actions.

As July 1, 2017 approaches, Canadian businesses should ask themselves whether they are ready for the impending PRA regime and have the necessary CASL policies and procedures in place to mitigate against enforcement risk. Is adherence to this compliance program monitored and audited? Are records of both express consent and implied consent adequate to prove compliance? Are unsubscribe requests implemented and tracked? Are employees appropriately trained on what is required by the law? The ability to respond to the above questions in the affirmative has become increasingly essential as implementation of this final phase of the law becomes imminent.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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