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Court Rules Home Owners Have No Duty of Care When Tenant’s Dog Injures Others

Source: Erik Magraken: BC Injury Law and ICBC Claims Blog

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the legal liability of a home owner whose tenant’s pet injures another.

In today’s case (Barlow v. Waterson) the Plaintiff alleged that a dog owned by the Defendant was off leash and caused her injury.  In the course of the lawsuit the Plaintiff sought to add the homeowner of the residence where the Defendant was residing as an additional Defendant.  The court rejected this application finding that even if all the allegations the Plaintiff was advancing were true the Defendant home owner owed no duty of care in the circumstances.  In dismissing the application Master Wilson provided the following reasons:

[13]         In this case, Mr. Seifi is not an occupier of the premises, having yielded control when he rented them to Ms. Waterson. Ms. Waterson was not Mr. Seifi’s agent as was found in Hindley. Mr. Seifi does not own the dog and therefore does not exercise control over the dog. He is not an occupier of Prospect Avenue, which presumably belongs to the municipality. He had no duty to control the dog owned by the defendant Waterson and had no ability or obligation to control or to limit activities on the property, let alone activities on the road adjacent to the property. To the extent there may be a bylaw regarding off leash dogs, that would be Ms. Waterson’s concern.

[14]         As for the allegation regarding adequate fencing in the proposed amended notice of civil claim, I agree with counsel for Mr. Seifi that there is no allegation that the dog here even escaped. In fact, the plaintiff’s evidence provided by way of her daughter’s email suggests that Ms. Waterson would routinely permit the dog to roam freely. This would suggest a failure to supervise or control the dog by Ms. Waterson as opposed to a failure to provide adequate fencing, a duty that would have been owed to Ms. Waterson but was not alleged by her in her Response to Civil Claim.

[15]         In the circumstances, although the threshold is a low one, I am not satisfied that Mr. Seifi owed any duty of care in this case to the plaintiff, and the application is dismissed.

Driving penalties to go up, but at what ultimate cost?

Distracted driving penalties are increasing. Again.

And immediate roadside driving prohibitions (like those for impaired driving) might be coming.

Goodness. Much ado about distracted driving!

Would it be fair for distracted driving penalties to be as swift and severe as those for impaired driving?

Consider which behaviour is more deserving of swift and severe consequences.

Which is a clear, conscious choice?

Driving after drinking alcohol is a clear, conscious choice. Absolutely. But that’s not the offence.  The offence is doing so with a blood alcohol concentration at or above 0.05.

Depending on gender, weight and size, it could take as little as two or as many as five drinks over a two hour period to reach 0.05.

You might get it wrong. Adding to the problem, the consumption of any alcohol will impact on your ability to monitor that consumption!

Don’t you dare interpret me as making light of the serious problem of impaired driving, by the way.  I am simply comparing the 0.05 offence with distracted driving on the basis of conscious choice.

Neither cell phone use, nor texting can be “mistakenly” engaged in. Doing so while driving is a conscious choice.

A conscious choice to engage in an illegal driving behaviour that you know is dangerous. Doesn’t that cry out for swift and severe consequences?

Look at speeding as a comparison.

Exceeding a posted speed limit can occur absent-mindedly and results in a fine. Excessive speeding results in the immediate impoundment of your vehicle.

Do we need swift and severe consequences to curb distracted driving? Let’s look at the history of distracted driving penalties in British Columbia.

We prohibited distracted driving as of January 1, 2010, with a fine of $167.00.

A lack of effectiveness led to a change effective June 1, 2016.The fine increased from $167.00 to $368.00, along with 4 points there was a total financial hit for a first time offender of $543.00. A second offence resulted in fines and points costing up to $1,256.00.

That increase didn’t do much to change driver behaviours. According to Solicitor General Mike Farnworth, the number of distracted driving tickets issued between June, 2016 and June, 2017 (44,000) was a reduction of only 13 percent from the year before.

Now we have another increase coming as of March 1, 2018. No change for first time offenders, but a second offence will come with up to a whopping $1,996.00 of fines and points.

When announcing the latest change, our Attorney General was quoted as saying: “Once implemented, this change will treat distracted driving as the serious high-risk behaviour that it is; one that is on par with impaired driving and excessive speeding”.

I agree. It is a serious high-risk behaviour on par with impaired driving and excessive speeding. But no, this change does not bring the consequences up to those levels.

A first offender will still drive way with a few hundred dollars of fines and points. We need swift and severe.

READ MORE HERE about Goodness. Much ado about distracted driving! 

Source: Paul Hergott, Personal Injury Lawyer

Source: DriveSmartBC

New Developments In Adverse Cost Insurance

Article by Evan Bawks

Many insurers and defence counsel are now aware of the growing use of adverse cost insurance, also known as “after-the-event” insurance (“ATE insurance”), in personal injury litigation. This insurance is typically a policy purchased by a plaintiff in a lawsuit to provide protection in the event of a judgment for costs against the plaintiff if they are unsuccessful at trial. The previous year saw a number of new decisions that discussed both the potential recoverability of the insurance premium as a disbursement and whether the policy itself is producible in the course of litigation.

The courts, thus far, have been consistent when considering whether the plaintiff’s ATF insurance premium was a compensable disbursement. In Markovic v. Richards, 2015 ONSC 6983, Milanetti J. did not accept that such a premium should be reimbursed by the defendants, noting that: (i) it would not be compensable as a taxable disbursement, (ii) the premium appeared to only be payable if the case was successful, and (iii) the expense was entirely discretionary. Milanetti J. further commented that ATE insurance “does nothing to advance the litigation, and may in fact even act as a disincentive to thoughtful, well-reasoned resolution of claims.”

Subsequent decisions on disbursements have followed Markovic. In Valentine v Rodriguez-Elizalde, 2016 ONSC 6395, Firestone J. followed Markovic and in commenting that ATE insurance was not an assessable disbursement, stated that “[such] insurance is not necessary for the plaintiff to advance or develop the various heads of damages claimed in this action.” A recent British Columbia decision, Wynia v. Soviskov, 2017 BCSC 195, also considered the novel issue of whether ATE insurance premiums were an assessable disbursement. The decision followed the provincial Supreme Court Civil Rules and a British Columbia Court of Appeal decision in determining that the cost of the ATE insurance coverage was not a proper or necessary disbursement incurred in the conduct of the proceeding. Wynia also cited Markovic approvingly.

ATE insurance policies have also factored into other costs decisions. In the costs endorsement in Robbins v Sears Canada Inc., 2017 ONSC 2571, the plaintiff, who was unsuccessful at trial, attempted to argue that a six-figure costs award against her was unreasonable and would cause a great financial burden on her. She alleged that she was impecunious. Edwards J. ruled that there was no evidence before him of impecuniosity and that he was not prepared to consider her financial situation in proceeding to award costs to the defendant. However, Edwards J. further noted that the plaintiff’s Bill of Costs contained a disbursement for an adverse cost insurance premium. There was no further evidence on this insurance, and the disbursement was not in issue. Nonetheless, Edwards J. stated that “[where] the plaintiff clearly has some type of adverse cost insurance, and has not advised the court of the nature and extent of it, it is disingenuous for the plaintiff to argue impecuniosity…”

The production of an adverse costs insurance policy for inspection in the course of a proceeding also continues to be litigated. In Abu-Hmaid v. Napar, 2016 ONSC 2894, the plaintiff had refused to answer at discovery whether they had adverse cost insurance or not. At issue was whether Rule 30.02(3) of the Ontario Rules of Civil Procedure, which requires production of an insurance policy that may satisfy, indemnify or reimburse a party in a judgment, required production of the adverse costs insurance policy. Master Short ruled that the existence of ATE insurance was relevant to the resolution of personal injury disputes, and ought to be disclosed at the same stage as disclosure by a defendant, as required by Rule 30.02(3). However, he ruled that the specifics of the policy did not have any probative value in the case before him; it was adequate to simply advise whether or not coverage of this nature had been obtained.

However, Abu-Hmaid was distinguished in Fleming v Brown, 2017 ONSC 1430, in which Grace J. undertook an analysis of Rule 30.02(3) in the context of a motion by the defendant for production of the plaintiff’s ATE policy, the existence and limits of which had already been disclosed. Production of the policy, however, had been refused at discovery. Grace J. found Abu-Hmaid, and other authorities cited by the plaintiff, to be unhelpful given the express wording of Rule 30.02(3). Grace J. commented that, “[generally] speaking, obligations with respect to documentary discovery are determined by whether the document is ‘relevant to any matter in issue'” and that Rule 30.02(3) served “to expand the obligation.” All parties to a proceeding were required “to disclose and if requested, to produce for inspection policies of insurance that fall into the categories established” by Rule 30.02(3), which did not import the words “relevant to an issue in the action.” Grace J. found that Rule 30.02(3) applied to policies of insurance “even if irrelevant to an issue in the action” and ordered production of the policy for inspection. He commented that the “policy’s existence and terms may well play a role, even if only strategically, in how this action is conducted.  In my view, that is enough to trigger the obligation to produce.”

Further complicating matters was the recent decision in Jamieson v. Kapashesit et al, 2017 ONSC 5784, which distinguished Fleming. On the morning of the commencement of trial, the defendants brought a motion seeking production of the adverse costs insurance policy. The plaintiffs sought to distinguish Fleming, not by commenting on the approach of Grace J. in that decision, but on the facts of the policy in Jamieson. In this case, the policy was a blanket policy taken out by the plaintiff’s legal representatives and named only the law firm, with no reference to the plaintiff or any other clients (In Fleming, the policy was taken out in the name of the plaintiff). Since the policy applied to all clients of the law firm representing the plaintiff, it was argued that disclosing the terms could be a breach of solicitor/client privilege and may provide a strategic advantage to the defendants. Further, Rule 30.02(3) requires “a party” to produce a policy for inspection. The law firm in this case was not “a party” to the proceeding and the plaintiff did not have the policy within their possession, control or power. Cornell J. agreed with the plaintiffs and declined to order production of the policy. Cornell J. distinguished Fleming on the basis that the policy belonged to the law firm and not the plaintiff.

While there have been consistent decisions that an ATE insurance policy premium is not an assessable disbursement, the water is much murkier on the requirement to produce these policies in a proceeding. Defence counsel and insurers should continue to inquire about the existence of these policies in the course of personal injury actions and seek their production where appropriate.

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.

Top 10 Ways to Help Avoid Ice Hazards

Top 10 Ways to Help Avoid Ice Hazards

Source: IBC

  1. Use designated ice surfaces.
    • Many communities have designated ponds or outdoor ice surfaces – for activities such as skating – that are maintained by knowledgeable personnel. Designated ice should be regularly tested to ensure that it is thick enough and strong enough for recreational use.
  2. Measure ice thickness in several locations.
    • Local conditions such as currents and water depths can affect ice thickness. White ice has air or snow within it and should be considered suspect for recreational use.
  3. Avoid travelling on ice at night or when it is snowing.
    • Reduced visibility increases your chances of driving onto an open or weak ice area. This is a frequent cause of ATV- and snowmobile-related drowning.
  4. Never go onto ice alone.
    • A companion may be able to rescue you or go for help if you get into difficulty. Before you leave shore, tell someone where you are going and what time you expect to return.
  5. Stay off river ice and avoid the narrows between lakes.
    • River currents and moving water at the narrows where one lake flows into another can quickly change ice thickness or cause ice to be much thinner than in other locations on the river or on the lake.
  6. Wear a thermal protection buoyant suit or a lifejacket.
    • If you don’t have a thermal protection buoyant suit, wear a lifejacket or PFD over your snowmobile suit or layered winter clothing to increase your survival chances if you go through the ice.
  7. Take safety equipment with you.
    • Pack ice picks, a rope and a small personal safety kit (i.e., a pocket knife, compass, whistle, fire starter kit and cellphone) in your pockets or backpack.
  8. Avoid alcohol.
    • Alcohol impairs your judgment, coordination and reaction time and speeds up the onset of hypothermia.
  9. Don’t drive on ice if you can avoid it. If you can’t avoid it, have an escape plan.
    • Open your windows, unlock your doors and turn on available lights to allow for a quick escape from your vehicle. Some ice safety experts recommend that you have your seatbelt unfastened and your door slightly ajar to speed up an escape. Don’t wear a lifejacket while riding inside an enclosed vehicle; the extra bulk and flotation could hamper your escape through a window.
  10. Always supervise children playing on or near ice.
    • Children playing on or near ice should always be with a companion and under adult supervision.

Sobering truth: CounterAttack turns 40, impaired driving still serious issue

Source: ICBC

On December 1, 2017 the B.C. government, police and ICBC marked the 40th anniversary of CounterAttack.

Since CounterAttack began in 1977, alcohol-related fatalities have decreased from over 300 per year to an average of 65 related deaths*. Yet the sobering truth is that impaired driving still remains a top contributing factor for fatal crashes in B.C.

This holiday season, if you plan to drink, leave your car at home. There’s no excuse to drink and drive and there is always at least one smart alternate option—like arranging a designated driver, calling a taxi, taking transit or using Operation Red Nose where available. ICBC’s special event permit kit is also available to order for free on icbc.com for party hosts planning to serve alcohol, encouraging guests to not drink and drive.

Police will be stepping up impaired driving enforcement at CounterAttack roadchecks throughout B.C beginning December 1, 2017.

ICBC supports two impaired driving education campaigns every year and funds CounterAttack enhanced police enforcement.

The 40 year milestone of CounterAttack will also be recognized in local newspapers this month to mark the progress made to reduce the number of victims impacted by impaired driving.

Mike Farnworth, Minister of Public Safety and Solicitor General:

“Over two generations, CounterAttack and related educational activities have helped to change attitudes and behaviours, saving hundreds of lives on our roads. Still, enhanced enforcement during the holiday season remains vital. There is simply no excuse for drinking and driving, and those who do so should expect to lose their driving privileges, their vehicle, and face other severe consequences.”

Chief Constable Neil Dubord, Chair of the B.C. Association of Chiefs of Police Traffic Safety Committee

“CounterAttack, along with tough penalties and education has impacted positively on driver behaviour. But the fact remains that people are still dying on B.C. roads because of impaired driving – either drugs or alcohol. One life is too many and the police will be out in force this holiday season to protect everyone using our roadways. We once again remind B.C. drivers: there is no excuse to drink and drive.”

Lindsay Matthews, ICBC’s director responsible for road safety

“Today, impaired driving is still one of the top three contributing factors for fatal crashes in B.C. These crashes are significant contributors to cost pressures on B.C. insurance rates. The fact is, impaired driving crashes are completely preventable. So if you plan to drink, leave your car at home or find an alternate way to get home safe.”

Additional statistics:*

  • On average, 16 people are killed in impaired driving-related crashes in the Lower Mainland every year.

  • On average, nine people are killed in impaired driving-related crashes on Vancouver Island every year.

  • On average, 22 people are killed in impaired driving-related crashes in the Southern Interiorevery year.

  • On average, 20 people are killed in impaired driving-related crashes in North Central B.C. every year.

*Fatal victim counts from police data based on five year average from 2012 to 2016. Impaired is defined to include alcohol, illicit drugs and medicines.

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