The Ontario Court of Appeal’s decision in Van Huizen v. Trisura Guarantee Insurance Company, 2020 ONCA 222 underscores the distinction between an insurance policy and an insurance contract; particularly the importance this difference has in determining whether an insurer’s duty to defend is engaged for individuals participating in a group insurance program.
Trisura Guarantee Insurance Company (“Trisura”) issued a professional liability insurance policy (the “Master Policy”) to the Appraisal Institute of Canada (“AIC”). The Master Policy pertained to claims made against AIC members, their personal corporations, employers, and the AIC, for the negligent provision of professional appraisal services.
Coverage was extended to individual members of the AIC under the Master Policy by way of individual application. An individual certificate of insurance was issued to each member.
Mr. Van Huizen, a professional appraiser and member of the AIC, made a claim under the Master Policy and his individual certificate of insurance (the “Van Huizen Insurance Contract”) for coverage in respect of three proceedings (two actions and a third party claim), which were brought against Mr. Van Huizen and a business style, Hastings Appraisal Services (collectively referred to as “Van Huizen”).
These proceedings arose from an allegedly negligent property appraisal performed by another AIC member, Mr. Barkley. Mr. Barkley was also insured under the Master Policy and had his own individual certificate of insurance issued by Trisura (the “Barkley Insurance Contract”). Mr. Barkley passed away in October 2016.
Before Trisura could issue its coverage position in respect of the Van Huizen claim, Van Huizen commenced an action against Trisura seeking a declaration that Trisura had a duty to defend and indemnify them under the Van Huizen insurance contract for the three proceedings.
The Summary Judgment Motion
Trisura brought a summary judgment motion to dismiss the action on the basis that it owed no duty to defend. In particular, Trisura took the position that, among other things, no coverage was available under the Van Huizen Insurance Contract because it did not provide coverage for Mr. Barkley’s alleged professional negligence.
The motion judge dismissed Trisura’s motion and granted judgment in favour of Van Huizen. In reaching this conclusion, the motion judge adopted a broad interpretation of the Master Policy and concluded that “Mr. Van Huzien has coverage for a legal claim arising from his own actions and also when it flows from his legal status as an employer of the alleged wrongdoer [Mr. Barkley].” The motion judge also found that Trisura had a duty to defend Van Huizen on the basis that such an interpretation was necessary for the vicarious liability provision to have any practical effect.
Trisura appealed the motion judge’s decision.
The primary issue on appeal was whether the motion judge erred in finding that Trisura’s duty to defend Van Huizen was engaged under the Van Huizen Insurance Contract.
While the motion judge correctly identified the relevant interpretative principles in determining whether there was a duty to defend, the Court found the motion judge erred by treating the Master Policy as the entire insurance contract for all AIC members.
The Court’s decision turned on the differences that separate insurance policies from insurance contracts as recognized by the statutory definitions of “contract” and “policy” in the Insurance Act, RSO 1990, c. I.8.1 The Court noted insurance policies are instruments that do not create legal obligations simply through their existence. Without an added contractual relationship, a policy is merely a recitation of terms and conditions that does not attach to a particular person or item.
In contrast, an insurance contract creates contractual obligations between parties. Like any contract, there must be an offer, acceptance, and agreement on all material terms. Premiums, the nature and duration of risks, and the extent of liability, are all material terms in an insurance contract.
The motion judged interpreted the Master Policy as if it constituted a binding agreement between Trisura and all members who had been issued certificates. Since both Mr. Van Huizen and Mr. Barkley each held certificates under the Master Policy, the motion judge incorrectly concluded they were both “Insureds” and entitled to coverage.
The Court explained that the Master Policy did not constitute a binding agreement on its own and merely set out the terms of the professional liability insurance being offered to the AIC members. Each AIC member who desired coverage must apply and, provided the member and the insurer come to an agreement on the remaining essential terms (e.g. premium to be paid and the term of insurance), a certificate of insurance must be issued to the member to confirm the existence of the insurance contract. Thus, the certificates issued to Mr. Van Huizen and Mr. Barkley were evidence of separate insurance contracts.
In light of this, the individual certificate issued to Mr. Van Huizen should have been used to determine whether Trisura had a duty to defend. Since the motion judge erred by finding a duty to defend based solely on the Master Policy, the Court reconsidered the issue based on an interpretation of the true contractual relationship between the parties.
As Mr. Barkley’s certificate did not form part of the Van Huizen Insurance Contract, only Van Huizen would be captured under the definitions of “Member”, “Insured” and “Wrongful Act”. In other words, coverage was only available for claims against Van Huizen respecting Mr. Van Huizen‘s provision of professional services. Consequently, there was no coverage under the Van Huizen Insurance Contract for Mr. Barkley‘s alleged professional negligence.
Ultimately, the Court found Trisura’s duty to defend was not engaged and the motion judge’s order was set aside.
The appeal decision in Van Huizen v. Trisura serves as a useful reminder of the important distinction between an insurance contract and an insurance policy, particularly where coverage is offered under a group insurance program. It is the insurance contract, not the insurance policy, which must be considered when determining an insurer’s liability.
1 Section 1 of the Insurance Act defines “contract” to mean “a contract of insurance, and includes a policy, certificate, … evidencing the contract …” and “policy” to mean “the instrument evidencing a contract”.
Originally published by Clyde & Co, August 2020
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Economical Insurance will provide peace of mind for drivers who use the Uber network and their customers in four Canadian provinces beginning September 1, 2020
WATERLOO, ON, August 18, 2020 — Economical Insurance announced today a new and significant relationship with Uber in Canada, designed to provide insurance coverage for every Uber Rides and Uber Eats trip in Alberta, Ontario, Quebec and Nova Scotia. The relationship is expected to launch on September 1, 2020.
“At Economical, we believe in finding innovative solutions to changing customer expectations, which is exactly what Uber has done for transportation globally,” said Rowan Saunders, President and CEO, Economical Insurance. “Our initiative with Uber continues our focus on digital transformation. It is another example of how we’re blending our insurance industry expertise with technology to support a better customer experience. We are proud that Uber has chosen Economical as their rideshare insurer in Canada going forward.”
“Uber has been a leader in the ridesharing industry, making sure every trip is insured. As our business has grown, we recognize the importance of strong partners like Economical Insurance. We are excited to partner with Economical Insurance in Canada to bring their high class service and trusted protection to riders, drivers, and eaters who use the Uber app,” said Gus Fuldner, Vice President of Safety and Insurance, Uber.
This announcement follows the innovative solutions for customers and brokers Economical Insurance has developed as it continues to make progress on its plans to convert from a mutual company to a publicly traded share company. The launch of Sonnet in 2016 introduced Canada’s first coast-to-coast fully online home and auto insurance experience. More recently, Economical launched Vyne, which uses advanced technology to provide faster service, improved workflows, and sophisticated products and pricing for brokers and their customers.
“Our sophisticated products, broad underwriting capabilities, and dedicated team give us the opportunity to provide coverage for a business as large and successful as Uber,” said Fabian Richenberger, EVP, Commercial Insurance, Economical Insurance. “As we look to the future, we know Canadians are changing how they order food, use cars, and get from one point to another, and we are dedicated to being there to protect them.”
Insurance coverage for drivers operating on the Uber platform will continue seamlessly. Economical will share more information and further details on the initiative in the coming weeks.
Aon acted as the insurance broker who facilitated the initiative.
About Economical Insurance
Economical Mutual Insurance Company (“Economical” or “Economical Insurance”, which includes its subsidiaries where the context so requires) is a leading property and casualty insurer in Canada, with approximately $2.6 billion in annualized gross written premiums and approximately $6.2 billion in assets as at June 30, 2020. Economical is a Canadian-owned and operated company that services the insurance needs of more than one million customers.
Uber’s mission is to create opportunity through movement. We started in 2010 to solve a simple problem: how do you get access to a ride at the touch of a button? More than 15 billion trips later, we’re building products to get people closer to where they want to be. By changing how people, food, and things move through cities, Uber is a platform that opens up the world to new possibilities.
Canada’s next finance minister faces a serious challenge as the country charts its way through the most difficult economic circumstances since the Great Depression.
Chrystia Freeland, who will be sworn in later today after Bill Morneau resigned Monday night, will have to manage a COVID-19 recovery that is still very much underway, with more than 40 per cent of the three million workers who lost jobs due to the COVID-19 pandemic still unemployed as of mid-July.
Fewer than one-third of the 4.7 million Canadians who were receiving the $2,000-per-month Canada Emergency Response Benefit at the beginning of August would qualify for Employment Insurance when the CERB ends on Sept. 26, making the transition to EI another hurdle.
Meanwhile the spectre of protectionism continues to loom large after U.S. President Donald Trump reimposed tariffs on Canadian aluminum earlier this month _ Democratic presidential nominee Joe Biden also harbours protectionist sentiments _ further complicating trade relationships.
Bank of Montreal chief economist Douglas Porter says the longer-term issue is whether the surge in spending linked to the coronavirus will morph into a more permanent trend, with attendant tax and debt implications.
Ottawa has been pumping money into the economy since March, resulting in a projected debt of $343 billion, an increase of more than 1,000 per cent from the previous year.
This report by The Canadian Press was first published Aug. 18, 2020
By Cassandra Szklarski
THE CANADIAN PRESS
TORONTO _ Some private schools afraid they’d be blamed if a student gets COVID-19 are considering waivers to absolve them, but experts say that wouldn’t stop a parent from suing or a school from racking up legal bills.
Toronto lawyer John Schuman says he’s provided “a couple of clients” with contracts that essentially have parents accept full responsibility if their child contracts COVID-19 in a school setting.
He says private schools could be targeted if they fail to enforce provincial and public health rules around COVID-19 and even if they do follow the rules, they could still be vulnerable.
“What schools are also worried about is that they’re going to do everything and they’re going to be careful and they’re going to sanitize stuff (but) some kid’s going to walk in and before even getting screened, sneeze on a bunch of kids and spread COVID-19,” says Schuman, senior partner at Devry Smith Frank LLP.
“And then they’re going to get sued even if they’ve done everything they could possibly do to stop the virus.”
Eric Roher of the Toronto law firm BLG says COVID-19 waivers are not common but that he has been asked to provide them to some alternative and independent schools.
Nevertheless, he doubts that a parent could be held to a promise not to sue if an outbreak occurs.
“There’s a real issue about whether _ even if the waivers are signed _ they’re enforceable,” says Roher.
“What I would prefer to be honest with you, is that we spell out what the safety and learning protocols will be and have parents confirm that they’ve read and understood them. I think that’s a safer approach.”
That also seems to be more common, he adds, describing the number of schools seeking extreme legal safeguards as “very few.”
The problem with waivers is that they can be hard to enforce, especially if they’re suddenly foisted on parents who’ve already paid tuition and confirmed enrolment.
“Parents have to have time to consider them and make sure they understand them, and perhaps consult a lawyer,” says Schuman, a specialist in child and family law.
“Where there’s less of that freedom, or (if) parents aren’t really free to fully understand what’s going on and to walk away if they need to, waivers become less enforceable.”
High schools aren’t alone in this request.
Incoming students at St. Francis Xavier University in Antigonish, N.S., were asked to sign a waiver before they could attend class, but that was contested by 350 students, staff, alumni and local residents who signed a protest letter.
The province’s minister of advanced education has since assured students the waiver would be changed.
The original waiver required students give up potential legal claims of “negligence, breach of contract, or breach of any statutory or other duty of care,” even if the university fails to take reasonable steps to safeguard them from COVID-19 risks.
Schuman suspects pressure from insurance companies has spurred some schools to take extraordinary steps.
“(If) two kids in Grade 5 in the back corner take off their mask while they’re talking to each other and whispering, (a teacher) can be seen to be negligent because they haven’t enforced the expected protocols,” he says.
“Generally, private schools operate on fairly thin margins so all the extra costs of sanitizing is going to stretch their finances a bit and (if they also) have an insurance company who’s going to tell them, ‘We’re going to raise your rates if you don’t take some precautions, you don’t have a waiver,’ (then) they need to have the waiver signed.”
The pandemic has already seen several proposed lawsuits target long-term care facilities, where a disproportionate number of Canada’s deaths have occurred.
A COVID-19 school waiver would raise red flags for educational consultant Karen Wolff.
She hasn’t heard of the phenomenon in her work advising families how to choose the right school but says if such contracts are on the way, she’d expect to see them in the coming days and weeks when virtual open houses and introductory sessions begin.
“I would call my lawyer, and I would have a conversation and just sort of say, ‘How enforceable is this? What are the ramifications if I choose not to (sign)? And do I have a choice?” says Wolff, who has one child in private school and another in public school.
Wolff is less concerned with signing a code of conduct that outlines expected precautions.
“Schools and parents need to be partners they need to be partners in everything including protecting the health and welfare and safety of their students,” says Wolff, of Wolff Educational Services.
The Ontario government made it clear earlier this month that private schools are subject to the same reopening guidelines imposed on public schools, says Roher. Nevertheless, he says his office encouraged its private school clients to exceed those measures.
Evidence of less infection risk outdoors is spurring many private schools to boost outdoor programming and excursions activities that are also requiring more waivers this school year, says Sarah Craig of the Conference of Independent Schools of Ontario, which represents 45 schools.
But she notes off-campus waivers were required pre-pandemic, too.
And of course, COVID-specific waivers aren’t really new _ many camps and sports activities began issuing them over the summer, says insurance broker Brooke Hunter, president of Hunters International Insurance.
“I think I’ve signed something like nine waivers so that my nine-year-old can play soccer,” says Hunter.
But it was relatively easy for a parent to walk away from camp if they balked at a waiver, she acknowledges. School is another matter.
Hunter expects to see an overall increase in the use of waivers. She suggests parents who are thinking about forming a learning pod with another family consider the possibility that they, too, could face legal action if things go sideways.
“Unless you’re incorporating your pandemic pod, you’re attracting personal liability,” she warns.
Several jurisdictions in the United States have taken steps to protect businesses, non-profits and government agencies from legal action, as long as they follow health standards and don’t exhibit gross negligence.
British Columbia introduced a broad ministerial order back in April that similarly protected many essential services, later adding emergency protections for child-care operators and amateur sport organizations. In June, it introduced legislation that would allow those provisions to be formalized “as appropriate” after the provincial state of emergency ends.
Hunter would like to see broad protections offered in Ontario.
“Can we agree that it’s ridiculous to hold each other liable whether it’s organizations or individuals for COVID-19 transmissions?” she says.
This report was first published by The Canadian Press on Aug. 17, 2020.
The excerpted article was written by JAMES SNELL | Winnipeg Sun
Winnipeg-based engineering startup MicroTraffic has launched a grant funding program in partnership with Aviva Canada insurance to help Canadian cities improve road safety.
MicroTraffic uses artificial intelligence technology and existing traffic cameras to automatically detect and trace vehicle speeds, pedestrians, and bicycles to identify near misses. If the system detects that near misses are unusually high for a particular road or pedestrian crossing, municipalities can use data to change signal timing, add signs, or even reconfigure the layout of an intersection.
Craig Milligan, CEO and co-founder of MicroTraffic, said on Monday that providing traffic analysts information based on serious near-misses means the company can tell them where and how the next fatalities are likely to happen.
“This really is a game-changer for cities, so we’re encouraging all municipalities and provincial road authority departments to apply so we can work with them to make their local roads safer,” he explained.
Milligan said the Aviva partnership could mean great things for company expansion, adding the program allows cities to try the technology on a risk-reduced basis.
“We have a 22 person team of artificial intelligence scientists, data scientists and road safety engineers,” he said. “Every startup dreams of going public (on a stock exchange) but we have a lot of work to do to build the company right now.”
The company said in a news release that almost eight in 10 road fatalities happen where no fatalities had occurred previously, adding only historical crash data that involves a fatality — not near misses — is currently being used to change road infrastructure in many cities.
To date, 40 governmental departments and agencies in North America — including in the Greater Toronto Area, Los Angeles, Austin, Detroit, New Jersey, Montreal, Calgary, and Edmonton have programmed over $200 million of road safety improvements using MicroTraffic’s diagnostic technology.
The grant program, which is financed by Aviva, is open to traffic safety and road management agencies until Sept. 8. Applicants must be from cities with 100,000 or more people in order to be eligible for the program. Up to five cities — 10 intersections per city — will be selected.
Grant decisions will be based on the needs of each city and their commitment to road safety and collaboration.
Selected agencies are expected to pay 25% of the costs up to maximum of $12,500.