What To Do When You Receive a Force Majeure Claim Based On The  Novel Coronavirus

What To Do When You Receive a Force Majeure Claim Based On The Novel Coronavirus

The excerpted article was written by Thomas J. Timmins and Howard XIN Articling student

Gowling WLG

Start with the Clause

A force majeure clause is a common inclusion to contracts for protecting parties from impairment caused by extraordinary or extreme events. These extraordinary events are often referred to as “acts of God”. When a force majeure clause has been included in a contract and force majeure events actually do occur, the expectation is that the party or parties facing impairment as a result of the proscribed force majeure event–a hurricane, war, flooding, political unrest, epidemic, etc.–will be relieved of all or some portion of its delivery obligations under the relevant contract and from all or some portion of liability for damages arising from delay or default occurring in the performance of its contractual obligations.

In drafting these provisions, companies will often use language that defines what will or will not constitute a force majeure event, often by listing specific examples which qualify as such–hurricanes, war, volcanic eruptions, strikes, lockouts, etc. Occasionally, in the rush to get the deal done, not a great deal of thought is given to the breadth or inclusions expressed in the clause and a “boilerplate” is used.

If there is no force majeure clause, courts will still consider defences by the impaired party based on foreseeability of the impairing event. Whether there is a force majeure clause or not, the burden of proof rests on the party seeking to rely upon the force majeure provision. In any case, the key starting point is with the force majeure clause itself. What does it say? Do the events which one party alleges to have occurred actually qualify under the terms of the clause? If so, did those qualifying events actually lead to the delay or the breach in question?

Force Majeure Case Law in Canada

For the past half-century, the leading case on force majeure in Canada has been Atlantic Paper Stock Ltd. v St. Anne Nackawic Pulp & Paper Co. This was a 1975 Supreme Court decision concerning a minimum annual supply of paper pulp over a 10-year period, which allegedly became subject to extraordinary events including acts of God and substantial decline in the market for such paper pulp. In this decision, Justice Dickson established that, “An act of God clause or force majeure clause … generally operates to discharge a contracting party when a supervening, sometimes supernatural, event, beyond control of either party, makes performance impossible. The common thread is that of the unexpected, something beyond reasonable human foresight and skill” (emphasis added). Since then, no Canadian Supreme Court cases have revisited the matter in depth. However, despite the lack of Supreme Court precedents, there have been various lower-court cases affirming Atlantic Paper and exploring the interpretation of force majeure clauses.

In World Land Ltd. v Daon Development Corp., the court accepted the use of basket clauses to define the scope of force majeure applicability. In this case, a land development company was accused of failing to commence construction on the land by a specific date. In the agreement, the force majeure clause included in its definition of force majeure events, the very broad and inclusive language, “…or any other causes…beyond the control of the vendors or the purchasers”. The company had relied on this language and announced that the development would be delayed on the grounds of not having received a development permit, which it claimed was beyond its control. The court accepted the applicability of the basket clause. However, to the detriment of the land development company, it chose to interpret the language plainly and held that it had been within the company’s control to obtain the permit on time. In other words, the party alleging that force majeure events occurred was not entitled to sit idle.

Subsequently, Atcor Ltd. v Continental Energy Marketing Ltd. seemed to have revised the criteria for what constitutes a force majeure event. In this decision, a gas supplier successfully relied on force majeure when it failed to deliver gas because of various technical pipeline issues suffered by a third party pipeline owner. Here, the Alberta Court of Appeal rejected the idea that a force majeure event had to make performance impossible. Instead, “a real and substantial problem” that makes contractual performance commercially unfeasible was held to be the standard—i.e. a significantly lower threshold than the impossibility of performance standard posited in Atlantic Paper, cited above.  Despite the apparent departure in Atcor, the impossibility standard set in Atlantic Paper has continued to be followed in recent cases. Thus, from a practical viewpoint, unless you have expressly contracted otherwise, ‘impossibility of performance’ should be viewed as the basic standard when reviewing force majeure circumstances.

As if to emphasize this point, in the 2011 British Columbia Supreme Court decision Domtar Inc. v Univar Canada Ltd., there was a focus on language of the force majeure provision. The facts were that a supplier could not source and supply caustic soda on commercially acceptable terms and, therefore, alleged that an event of force majeure had occurred and that it should be exempted from its contractual supply obligations. The force majeure event, in this case, was not being able to purchase raw materials at a commercially acceptable price because of an unprecedented rise in price of caustic soda. The argument was ultimately unsuccessful. The B.C. court found that the force majeure clause in the relevant contract did not include or contemplate economic or market conditions, and agreed with earlier findings from the English courts that, “the fact that a contract has become expensive to perform, even dramatically more expensive, is not a ground to relieve a party on the grounds of force majeure.

Domtar Inc. suggests that “economic” force majeure would be extremely difficult, if not impossible, to justify. It also emphases the point which we made above—start by reading the force majeure clause in your contract.

Considering the Novel Coronavirus

It is not uncommon for force majeure clauses to include specific references to terms such as “plague” or “epidemic” when describing force majeure events. In light of global health emergencies that have surfaced in the last few decades, we have found that these types of clauses have included increasingly specific event references such as “public health emergencies” and “communicable disease outbreaks”. However, whether these specific wording inclusions will be of use to the party alleging that a force majeure event which can be relied upon as relieving it from its contractual obligations has occurred remains uncertain.

The Canadian case law surrounding force majeure provisions based on global health concerns is limited. For example, most mentions of the 2003 SARS outbreak or the 2015 Ebola pandemic pertain to cases of domestic occupational health and safety and refugee protection. Reported cases that refer to these specific health crises as triggers of force majeure are few. There is one 2005 decision issued by the Canadian Radio-television and Telecommunications Commission (CRTC) concerning rate adjustment plans in the Telecom industry that linked SARS to a force majeure event. In the decision, Bell Canada, TELUS, and several other telecom companies submitted that the 2003 SARS outbreak in Toronto fell within the scope of the following force majeure clause:

“No penalty shall apply in a month where failure to meet the standard is caused, in that month, by fire, strikes, default or failure of other carrier, floods, epidemics, war, civil commotions, acts of God, acts of public authorities or other events beyond the reasonable control of the Company which cannot reasonably be foreseen or provided against.”

In this case, Canadian telecom carriers sought to rely upon the force majeure wording above, arguing that factual circumstances, including the necessity to quarantine of a number of Bell Canada employees, and the specific mention of “epidemics” in the force majeure clause, lessened their respective quality of service obligations. (In many force majeure clauses, epidemics are not specifically included in the clause and left to be read-in under the sweeping category “other events beyond the reasonable control of the Company”.) In the end, the CRTC held that the approach to be adopted in order to determine whether or not SARS-related events were sufficient to trigger force majeure clause protections was a case-by-case one.

READ FULL ARTICLE HERE AT GOWLING WLG

Centre eyes artificial intelligence to modernize the federal hunt for dirty cash

By Jim Bronskill

THE CANADIAN PRESS

OTTAWA _ The federal anti-money laundering centre is exploring artificial intelligence and machine learning to help sort through a deluge of data in the hunt for hidden dirty cash.

In its annual report made public Wednesday, the Financial Transactions and Reports Analysis Centre of Canada, known as Fintrac, says rapid change in the global financial system, spurred by quickly evolving technology, is both a challenge and an opportunity.

Fintrac says technology can help money launderers but also create more efficient and effective ways of doing business for enforcement agencies.

The federal centre tries to pinpoint cash linked to money laundering and terrorism by sifting through millions of pieces of information annually from banks, insurance companies, securities dealers, money service businesses, real estate brokers, casinos and others.

Overall, the centre disclosed 2,276 pieces of financial intelligence to police and security agencies such as the RCMP and Canadian Security Intelligence Service last year.

Of these, 1,702 were related to money laundering, 373 to terrorism financing and threats to the security of Canada, and 201 to a combination of these.

Fraud, drugs and tax evasion were the most common offences linked to the disclosures. Many of the drug-related ones involved the movement of money related to deadly fentanyl.

The top three recipients of information were the RCMP, municipal police forces and CSIS.

In December, Fintrac warned casinos to scrutinize customers who pay for their gaming with bank drafts _ the latest method of choice for criminals trying to disguise tainted money.

The agency published the alert as part of Project Athena, an RCMP-led public-private partnership aimed at disrupting money-laundering activity in British Columbia and across Canada. The initiative was modelled on previous efforts targeting the fentanyl trade, romance fraud and human trafficking.

B.C. launched a public inquiry into money laundering in May after a series of independent reviews revealed that billions of dollars were being laundered through the province’s casinos, real estate market and other sectors.

B.C. was second only to Ontario among provinces in the number of financial intelligence disclosure packages received from Fintrac in 2018-19.

The federal centre depends on sophisticated technology to receive, store and secure over 25 million new financial transaction reports every year.

Filtering and analyzing the information to generate useful intelligence is only possible with modern systems that can manage the high volume of data, make the connections and produce the needed results, all in real-time or close to it, the report says.

“Over the past year, the centre engaged in research and consultation aimed at better understanding how to take advantage of new and evolving technology, particularly in relation to machine learning and artificial intelligence.”

Fintrac has begun a comprehensive review of its modernization effort to ensure “full and timely use” of its data.

Slip and Fall Lawsuit Against City Dismissed Based on Policy Defence

The guest post is written by ERIK MAGRAKEN

When sued for negligence and Occupier’s Liability Act claims public bodies enjoy a defense that private citizens and businesses do not, namely the policy defense.   Actions taken pursuant to a good faith policy decision can shield a public body from liability in circumstances where a private defendant would be held liable.  Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, discussing and applying this principle.

In today’s case (Lowe v. Sidney (Town of)) the Plaintiff slipped and fell on black ice on a parking lot owned by the Defendant.  The Plaintiff argued the Defendant was negligent in failing to inspect and address this ice before the incident.  The Court disagreed and dismissed the claim.  In doing so Mr. Justice G.C. Weatherill made the following comments in applying the policy defence:

[23]         Public authorities do not owe a duty of care in tort if it is established that their actions were based upon a policy decision, unless the decision was made in bad faith or was so irrational as not to be a proper exercise of discretion.  However, public authorities can be liable for operational decisions provided the plaintiff proves the required elements of liability: Just v. British Columbia, [1989] 2 S.C.R. 1228 at 1245; Binette v. Salmon Arm (City), 2017 BCSC 302, aff’d 2018 BCCA 150, at paras. 10–14; Marchi v. Nelson (City of), 2020 BCCA 1 at paras. 14–16.

[24]         As a general rule, decisions concerning budgetary allotments for departments are classified as policy decisions, because they are an attempt by the public authority to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertaking and of their actual performance.  True policy decisions will usually be dictated by financial, economic, social, and political factors or constraints: Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420 at 441; Binette at para. 12.

[25]         Operational decisions are those concerning the implementation and performance of the formulated policies and are usually made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness: Brown, at p. 441; Binette at para. 12.

[29]         The defendant submits that it is exempt from owing a duty of care to the plaintiff because its actions were in keeping with the Policy, which was put in place bona fide and in good faith based on, among other things, the availability of manpower, equipment, and budgetary constraints. 

[30]         The plaintiff submits that the classification of the Lot as a low priority area was not a bona fide policy because the Lot was along the defendant’s priority routes and could easily have been inspected with little to no extra effort.

[31]         I am satisfied on the evidence presented by the defendant that the Policy was dictated by financial, economic, and budgetary constraints.  It was a proper exercise of discretion.  Included in the Policy was the determination that the defendant’s six public parking lots were areas of low priority for snow and ice inspection and control, in the absence of a particular complaint or extreme weather event.  This was a resource allocation decision and, thus, an unassailable policy decision.

[32]         I also find the policy decision to be reasonable.  It is one thing for priority areas to be inspected and sanded.  To require as a matter of policy that those involved in the inspection of priority areas, at the same time, divert their attention to and engage in an inspection of areas considered low priority is illogical and inconsistent with reasonable resource allocation and prudent policy-making.  In my view, the Policy was bona fide.

bc injury law, Lowe v. Sidney, Mr. Justice G.C. Weatherill, Occupier’s Liability, Policy defence

Federal government to announce supports for people, businesses hit by COVID-19

PM says Ottawa expecting ‘significant economic impacts’ from COVID-19

Prime Minister Justin Trudeau will announce on Wednesday supports for people and businesses affected by COVID-19 — the first part of a federal package designed to help workers who are forced to stay home from their jobs as the virus spreads and disrupts the economy.

Trudeau will announce supports for those facing “immediate pressures,” with more aid for other sectors to be announced in the coming days.

Sources have told CBC News that the measures Trudeau will announce include waiving the one-week waiting period for Employment Insurance benefits for people who have to self-isolate because of the outbreak.

The package also will include a boost to research funding to combat the virus, over and above the $27 million announced in Montreal last week.

Ottawa is also leading a pan-Canadian effort to bulk-buy certain medical devices, and the federal government says it will be ready to support provinces needing further assistance to shore up their health care systems as the number of confirmed cases rises.

Trudeau met with top ministers this afternoon, including Finance Minister Bill Morneau and Health Minister Patty Hajdu, as part of the government’s response to a virus that has sickened dozens across Canada and killed one person in B.C.

“We recognize that there are going to be significant economic impacts for Canadians, for workers, for businesses, and that’s why we’re going to be talking very soon about measures that Canada is going to put forward to support people on the economic side,” Trudeau told reporters on his way into question period.

Treasury Board President Jean-Yves Duclos said Ottawa is considering stimulus spending in the upcoming federal budget.

Beyond Wednesday’s planned announcement, Duclos said the federal government will spend more to help people “go through the crisis” and help “workers, families and businesses thrive and sustain themselves.”

“We have the fiscal room and the fiscal power to intervene and provide the stimulus that the economy will demand,” Duclos said in an interview with CBC’s Power & Politics. “We have the will and the ability to make a difference. We will use our considerable fiscal room and power to invest.”

While the debt-to-GDP ratio has been falling in recent years, Ottawa is running a federal budget deficit of $26.6 billion for the 2019-20 fiscal year.

READ MORE HERE AT CBC NEWS

Seniors, disabled will be impacted as insurance crisis takes up to 1000 taxis off the road

Seniors, disabled will be impacted as insurance crisis takes up to 1000 taxis off the road

Senior citizens and others who rely upon Accessible taxis are at risk of losing this service as Ontario’s taxi industry is facing a crisis in insurance coverage.

“The number of taxi cabs which are being parked and taken completely out of service is horrendous,” says Marc Andre Way, President of the Canadian Taxi Association (CTA).

“In Hamilton alone, City Council members have been notified by licensing staff that 25 per cent of licensed taxis are now parked because they cannot obtain insurance. Communities across Ontario are facing dire circumstances on account of this insurance crisis.”

Toronto’s Licensing division reports that already 719 licenses have been returned to them. The number of “parked” cabs could climb to as many as 1,000 or more in the weeks ahead as insurance renewals are denied.

This crisis means that riders who require Accessible Taxis for medical appointments and other travel may soon be unable to receive on-demand Accessible taxi service; even standard, non-Accessible taxis may be unavailable.

The CTA, working with Philomena Comerford of Baird MacGregor Insurance Brokers who are experts in the taxi insurance field, have proposed at least a partial solution to this crisis: they are asking Ontario to amend Regulation 664 to allow Loss Transfer for taxis as is allowed for other vehicles.

“Amending Regulation 664 will not cost the province any money and does not require legislation, it is a simple regulation change which will encourage insurers to stay in the taxi market,” says Way.

“We suggested this idea during Ontario’s Pre-Budget consultations, although in fact, the change could be made at any time. We hope Ontario will consider amending Regulation 664 as at least a partial solution to the taxi industry insurance crisis before it begins to have a serious negative impact on senior citizens and those who require accessible taxis.”

The CTA works with its members across Canada to:

  • improve service standards by sharing information with each other including best practices from proven operators in certain aspects of their business model.
  • introduce new technology or new services to make their businesses more competitive.
  • provide access to suppliers that can reduce operating costs.
  • deliver consistent customer service across the nation regardless of city or locale.

SOURCE Canadian Taxi Association

Related Links

www.cantaxi.ca/

Manitoba funeral director admits to faking client death certificates

Money was collected from insurance companies to pay for funerals that never happened

The excerpted article was written by Darren Bernhardt · CBC News 

A former funeral director pleaded guilty in a Winnipeg court Tuesday to 13 counts of faking death certificates to receive payouts from insurance companies.

Mike Knysh, who once owned and operated Knysh Funeral Chapel in Winnipeg and Beausejour, was set to go to trial in April on 24 counts in total — 11 for fraud and 13 for forgery.

Instead, his lawyer, Frank Coniglio, and Crown prosecutor Mandy Ambrose reached an agreement that saw the 11 fraud charges dropped in exchange for Knysh’s guilty plea in Court of Queen’s Bench to the 13 forgeries.

The victims had purchased prearranged funeral plans from Knysh, police said in April 2018, when the charges were laid.

The 13 counts represent 13 separate people for whom funeral director’s statement-of-death certificates were filed with insurance companies, even though all were alive at the time, court heard.

Knysh then received money from the insurance companies to pay for funerals that never happened. A total of $83,000 was claimed from the insurance policies, police said.

The incidents happened between 2004 and 2014.

As the court clerk read out each charge individually Tuesday, Knysh quietly pleaded guilty. He then responded with a muted “yes” when the clerk clarified each time that he said “guilty.”

Justice Chris Martin followed up by asking if Knysh realized his guilty pleas mean he will have a criminal record.

“Yes,” Knysh said.

Sentencing is set for April 14.

Outside the courtroom, Coniglio called the plea deal “an acceptable resolution,” noting there were a number of charges the defence did not believe were valid.

By avoiding trial, many witnesses — including several who are elderly — will not need to attend court, Coniglio added.

“We didn’t want any of them to have to go through that experience if it wasn’t absolutely necessary,” he said.

Coniglio hopes that will be considered as a mitigating circumstance by the judge during sentencing.

He added there are other such circumstances that will be presented at that hearing to show the crime “is not exactly what it might look like on the face of it.”

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