BC Seniors to Get New Driving Assessment called the Enhanced Road Assessment (ERA)

The Superintendent may require that a driver complete an Enhanced Road Assessment (ERA) as part of the process of making a Driver Medical Fitness determination. The Insurance Corporation of British Columbia (ICBC) administers the ERA on behalf of the Superintendent.There is no fee charged to the driver for the ERA.

For more information on the ERA, see the Enhanced Road Assessment Information for Drivers(PDF).

Some of the most common reasons for an ERA are:

  • A doctor reports a medical condition that may affect a person’s fitness or ability to drive safely
  • Results of a previous on-road assessment suggest a follow-up is necessary; and/or
  • A collision report, police report or other report indicates a driver may be unable or unsure how to handle a common driving situation

The ERA is conducted in a Class 5 vehicle and is designed to assess driving skills and behaviours at the Class 5 or Class 7 level.  It is not used to assess a driver’s ability to safely operate a commercial class vehicle.

The ERA is designed as an assessment which provides RoadSafetyBC with comprehensive information, rather than a road test that is either passed or failed. RoadSafetyBC reviews the results of the ERA, along with all other relevant information in a driver’s file, in order to make a decision to maintain, re-issue, or cancel the driver’s licence. In some cases, additional information may be required in order to make a licensing decision. This may include further medical testing, or an additional ERA. All additional ERAs are at the discretion of RoadSafetyBC, based on all of the information related to a driver’s medical fitness to drive.

Please note: As of March 5, 2018, any outstanding RoadSafetyBC requirement for a Class 5 or Class 7 ICBC road test re-examination may only be satisfied by taking an ERA. For more information on your outstanding requirement, please call RoadSafetyBC at 1-855-387-7747.

Canadian Coast Guard ship fined $6,000 for speeding in right whale protection area

Sept 17, 2017

OTTAWA – A Canadian Coast Guard vessel has been fined $6,000 for speeding in violation of measures aimed at protecting North Atlantic right whales in the Gulf of St. Lawrence.

Transport Canada says the coast guard ship breached the 10-knot speed limit in the western gulf, which applies to vessels of more than 20 metres.

The penalty is the third of its kind since the speed restrictions were announced in August as part of an effort to prevent further right whale deaths in the gulf.

In each case, vessel owners have been asked to either pay the fine or ask for a review within 30 days.

Eleven right whales have died in the Gulf of St. Lawrence since June, an unprecedented number of deaths for the endangered marine mammal.

Fisheries officials say the most recent carcass was located off the coast of New Brunswick on Friday morning.

 

Self-Driving Cars: Taking The Wheel Out Of Your Hands

Article by Eric W.D. Boate and Cassandra Khatchikian

Self-driving cars are no longer something we can only imagine in futuristic movies. Taken right out of James Bond, Land Rover’s Range Rover Sport is already capable of being controlled via smartphone like a remote-controlled car. Subaru’s EyeSight system has the ability to independently adjust cruise control to maintain a safe distance from the car ahead. Tesla’s vehicles are equipped with a system, aptly named “autopilot”, that allows for near-full control of the vehicle during highway driving using radars and cameras to stay in the middle of a lane, transition from one highway to another, and even automatically change lanes without requiring driver input. The technology is already here, and if your car is relatively new, it’s probably already in your own driveway to some degree…

What is an autonomous vehicle, exactly?

The government of Ontario defines autonomous vehicle as a “driverless or self-driving vehicles that are capable of detecting the surrounding environment using artificial intelligence, sensors and global positioning system coordinates”.1

However, the distinction between an autonomous and semi-autonomous vehicle is an important one, and will be increasingly more at the forefront of discussion. Whereas autonomous vehicles are, as above, fully capable of being operated without human input, semi-autonomous vehicles are those that require a driver for most normal applications of operation. These semi-autonomous vehicles have functions that allow the vehicle to take over some controls of the vehicle to attempt to avoid or lessen the severity of motor vehicle accidents, such as emergency breaking, adaptive cruise control and lane avoidance signaling.

With new technology comes new responsibility to keep our roads safe

According to the Ontario Ministry of Transportation, on January 1, 2016, a new program was launched to allow auto manufacturers, under specific regulations, to begin testing on self-driving cars, or autonomous vehicles. Interestingly, Ontario is the first province in Canada to allow road tests of autonomous vehicles.

driverless or self-driving vehicles are capable of detecting the surrounding environment using artificial intelligence…

The implementation of the pilot project has strict rules and restrictions to ensure safety for those involved with the testing phase of these cars. For example, the pilot is restricted to using these vehicles only for testing purposes, only vehicles manufactured and equipped by approved applicants are permitted and the driver must remain in the driver’s seat of the vehicle at all times and monitor the vehicle’s operation, to name but a few. The full list of the parameters and rules related to the pilot project is set out in Regulation 306/15 Pilot Project-Automated Vehicles, a regulation under the Highway Traffic Act.2

Turning the tables on liability

The introduction of this new groundbreaking technology comes with legal uncertainties. Litigation specialists can’t help but wonder how courts will determine liability when self-driving cars are involved in motor vehicle accidents.

This issue has already come up several times worldwide. The first known death associated with autonomous vehicle function occurred recently in Florida, USA on May 7, 2016, where a man was killed in a motor vehicle accident while driving a Tesla Model S with ‘autopilot’ engaged.

Tesla issued a statement following the tragedy and indicated that though the autopilot is getting better all the time, it is not perfect and still requires the driver to remain alert while the car is in use.3 In fact, when the self-driving mode in Tesla vehicles is activated, there is an acknowledgment box that specifically warns drivers that the mode should be used as an assist feature only and that the driver—s hands should still remain on the steering wheel.

Venturing into unknown territory with liability

The golden question remains: If a motor vehicle accident involving an autonomous or semi-autonomous vehicle occurs, who will be held liable, the car or the driver?

The answer will likely depend on the specific facts of the incident. For example, these could include: Whether the autonomous hardware of software malfunctioned, whether the owner properly maintained the vehicle, or whether the driver correctly operated the vehicle while the autonomic functions were enabled.

With the introduction of these autonomic and semi-autonomic vehicles, the courts will be assigned the new task of determining liability. The determination of liability gets complicated when considering that, no automobile manufacturer creates all components of its vehicles “in-house”: the reality is that the hardware and software for these autonomous functions are created by numerous parties.

Determining fault will likely require a determination of what specifically caused the incident. Various parties may be on the hook when a motor vehicle accident involving an autonomous or semi-autonomous vehicle occurs. For example, these parties may include the software development team, the manufacturer of the camera sensors, and the owner and operator of the vehicle. With that said, one thing is certain: the number of party litigants is going to increase in these cases.

To date, there is no case law on this topic that we can look to for guidance; however, it will be interesting to see how the courts will treat the introduction of this new technology in the determination of liability for motor vehicle accidents.

In Ontario, the courts look to the common law for direction in determining liability in litigation involving motor vehicle accidents. Now, with the impending introduction of autonomous vehicles, it will be interesting to see how product liability will be incorporated into the determination of liability by the courts. Courts similarly look to the common law for authority in determining product liability, but can also look to provincial legislation governing consumer goods, such as the Ontario Sale of Goods Act.4

Only time will tell if this new technology will, in fact, lead to fewer motor vehicle accidents, thus reducing the associated costs for insurance companies.

It is not yet known how auto insurance will be affected by autonomous vehicles. With the promise of making driving safer, should insurance premiums be reduced for those who drive safer vehicles? This will of course beg the question as to whether autonomous functions actually make vehicles safer.

Only time will tell if this new technology will, in fact, lead to fewer motor vehicle accidents, thus reducing the associated costs for insurance companies. It is almost certain that auto insurance policies will require an update to keep pace with the burgeoning proliferation of autonomic and semi-autonomic vehicles.

Costs aside, the interplay between auto insurance policies and commercial general liability policies will certainly need to be addressed, at least from the product liability perspective, since many commercial general liability policies, including those which cover software or camera manufacturers, specifically exclude coverage for liability arising out of the ownership or use of an automobile. This leads to the question that if an autonomous vehicle’s software or camera fails, which, in turn, leads to a crash, could the software or camera manufacturer’s insurer deny coverage based on the fact that liability arouse out of the use of an automobile? Under the current wording of insurance policies, this is a possibility.

While it is clear from the above that there are many uncertainties with respect to autonomous vehicles, at least from a legal perceptive, our lawyers will continue to keep abreast of liability issues surrounding automatous vehicles, so as to keep our clients updated to this ever changing area of transportation law.

Footnotes

1. Ontario Ministry of Transportation, Ontario First to Test Automated Vehicles on Roads in Canada, Province Supports Innovation in Transportation Technology, 2015(Ontario, Ministry of Transportation, 2015)

2. O. Reg. 306/15: Pilot Project – Automated Vehicles, under the Highway Traffic Act, R.S.O. 1990, C. H.8

3. The Tesla Team, A Tragic Loss, June 30, 2016,

4. Sale of Goods Act, RSO. 1990, c.S.1.

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.

Off-Duty Conduct: What Can Happen When Employees Go Viral

By Michael Horvat | Mondaq

It seems that a week cannot go by without the news reporting on a seemingly private or embarrassing event that has gone public. With the abundance of cameras in our daily public lives and the instantaneous sharing of information, our actions and statements can be easily broadcast as they happen. Our new “public” life is ever more on display. Some recent examples include being caught on video engaging in public mischief (such as throwing a beer can onto a sports field on national television) or engaging in a post on Twitter or other social media sites with “friends” that is resent or retweeted for everyone to see. How employers and their employees cope and navigate the greying line between an individual’s private life and their connection to the workplace is likely to become of greater issue, especially among a new generation of employees who have grown up in a world of social media and use it as their primary vehicle of communication.

As employees become more aware that their employers are noticing what happens away from the office or shop floor, employers must equally understand that there are still limits as to what behaviour they can regulate when the work day has ended.

In the past, there used to be a clearer time and distance aspect with respect to off-duty conduct. If it happened away from the workplace and outside of work hours, it was presumed to be the employee’s own business and, strictly speaking, of no concern to the boss, unless it tied the company brand and employee together in a bad light.

The law regarding an employer’s response to off-duty employment conduct has evolved as the web of social connections between employer and employee ties them together outside of regular business hours. Bullying behaviour in the office has to be addressed, so why not address bullying that occurs on Facebook or Twitter. Human Resources departments now have no choice but to take notice and act, whether it is to address potential harm that may arise from bad publicity or to address concerns by co-workers due to comments or actions made by colleagues in “private” internet communications that have become public. (Anecdotal evidence counters the notion that anything on the internet or that is electronically distributed is or can remain private.)

Employees must understand that companies will act to address off-duty conduct when that conduct could detrimentally affect their image, brand or business, or otherwise impact the well-being of coworkers. In some cases, employers will have no choice but to engage in an investigation into such behaviour and discipline or terminate the employee if misconduct is found to have occurred. For example, under recent changes to the Occupational Health and Safety Act, Ontario companies are now mandated to have policies in place regarding the reporting and investigation of harassment and sexual harassment complaints. The application of such policies extends beyond the workplace. Off-duty comments made on Facebook towards a co-worker can create a hostile work environment as easily as comments made in the lunchroom.

Consequently, it is recommended that all employers have policies which provide direction to their employees about their use of social media (such as Facebook, Twitter, Instagram). These policies should caution their employees about the use of technology both at the workplace (when using company email and computers) and away from the workplace. The policies should also refer to the company’s harassment policies and code of conduct rules and advise employees that offduty conduct can also be subject to investigation and discipline (including discharge). Finally, employees must be trained in the application of these policies and the company must consistently review and enforce their application.

However, employers must be prepared to distinguish between actions which create a public relations issue (our employee has embarrassed the company) that require only a public relations response, with a human resources issue (our employee has breached policy and caused damage to the company’s goodwill or to another employee) which could require investigation and discipline.

Not every case where harm is caused to the company’s brand or reputation will require a human resources response and the harm or potential harm caused will only be one factor among many when determining if investigation and discipline will be appropriate in the circumstances. Other factors will include the degree of responsibility exercised or public position held by the employee, and whether the misconduct will hinder that employee’s ability to perform his/her job and/or  their ability to work with co-workers and their co-workers corresponding willingness to continue to work with them.

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.

Supreme Court of Canada Provides Guidance on ‘Faulty Workmanship’ Exclusions in All-Risk Insurance Policies

Article by Gordon A. Buck from Alexander Holburn Beaudin + Lang LLP

On September 15, 2016, the Supreme Court of Canada issued its highly-anticipated decision in Ledcor Construction Limited v. Northbridge Indemnity Insurance Company (“Ledcor“),1 which provides important guidance on the interpretation and application of standard “faulty workmanship” exclusions that typically appear in commercial all-risk insurance policies. While the Supreme Court decision brings greater certainty to an unsettled area of the law, it will have significant implications for both insureds and insurers going forward. The practical effect of the Supreme Court’s decision in Ledcor is to expand the scope of coverage that will be available under a commercial all-risk policy, even in cases involving faulty or improper workmanship.

The case arose out of the construction of the EPCOR Tower in Edmonton. During final construction clean-up, the sub-contractor hired to clean the windows used improper tools and methods which resulted in damage to the windows, necessitating their replacement. The owner and the general contractor claimed the cost of the window replacement under the builders’ risk insurance policy that the owner had placed for the project. The policy contained a standard exclusion for “the cost of making good faulty workmanship” but this exclusion was subject to an exception for “physical damage not otherwise excluded by this policy … in which event the policy shall insure such resulting damage”. The insurer denied coverage for the claim based on the exclusion, while the owner and the general contractor took the position that the cost to replace the windows was resultant damage arising from the sub-contractor’s faulty work, and therefore fell within the exception for resulting damage.

The trial judge in the Alberta Court of Queen’s Bench sided with the insureds, finding that although the sub-contractor’s cleaning work was faulty, the “making good” wording in the exclusion was ambiguous and therefore did not operate to exclude the cost of replacing the windows. The Alberta Court of Appeal allowed the insurer’s appeal, finding that the policy wording was not ambiguous, and concluding that the question of whether the window replacement was “resulting damage” should be resolved by applying a test of “physical or systemic connectedness” to the faulty work being carried out. The Court of Appeal concluded that in this case, the damage that occurred was to the very thing that was the subject of the faulty workmanship, and therefore the cost to replace the windows was excluded.

The Supreme Court of Canada allowed the insured’s appeal, and concluded that only the cost of re-doing the cleaning work would be excluded from coverage under the ‘faulty workmanship’ exception. The Supreme Court rejected the Court of Appeal’s “physical and systemic connectedness” test, and found that the exclusion clause was limited to the cost of re-doing the faulty work. The Supreme Court concluded that both the insured’s interpretation and the insurer’s interpretation of the ‘faulty workmanship’ exclusion and the ‘resulting damage’ exception were plausible on the wording of the policy, and therefore the exclusion was ambiguous.

The Supreme Court then concluded that the ambiguity should be resolved in favour of the insured, having regard to the reasonable expectations of the parties entering into the insurance contract. The Supreme Court noted that the purpose of builder’s risk policies was to provide broad coverage for projects while under construction, as well as broad coverage for all those involved in the project, in order to avoid disputes over responsibility for repair or replacement of components of the project. The Supreme Court concluded that to exclude coverage for the damage resulting to the part of the project being worked on would undermine the purpose of builder’s risk policies and would be contrary to the reasonable expectations of the parties.

In coming to its conclusion in Ledcor, the Supreme Court of Canada appears to have endorsed the approach taken by the British Columbia Court of Appeal in another case, Acciona Infrastructure Canada Inc. v. Allianz Global Risks US Insurance Co. (“Acciona“).2 There, the Court of Appeal held in favour of the insured in finding that the ‘faulty workmanship’ exclusion in a builder’s risk policy did not exclude the cost of repairing concrete slabs which over-deflected as a result of improper formwork and shoring procedures. The Court of Appeal in Acciona held that the only thing that was excluded from the loss was the cost of properly doing the formwork and re-shoring, while the damage to the slabs was covered as resultant damage arising from faulty workmanship.

In a broad sense, the Supreme Court of Canada’s decision in Ledcor can be read as a mere confirmation of the generally-accepted principle that coverage under a policy should be construed broadly, and exclusions construed narrowly. More specifically, however, the decision in Ledcor has now firmly established that the standard ‘faulty workmanship’ exclusions in commercial all-risk policies will only operate to exclude the cost of re-doing the faulty work.

As a practical matter, the effect of Ledcor will be to broaden coverage under all-risk policies, even in situations involving faulty workmanship or design. If insurers wish to exclude any damage that is in any way causally connected to faulty workmanship or faulty design, they will have to use clear language to that effect in the policy, or perhaps modify the wording of the exception providing coverage for resulting damage .

For their part, insureds under all-risk policies may wish to consider structuring their contractual arrangements to ensure that any work that poses a significant risk of causing damage to other parts of the project is subject to separate, discrete sub-contracts. The Supreme Court of Canada expressly noted in Ledcor that had the window cleaning company been responsible for installing the windows in good condition, as opposed to merely cleaning them, damage to the windows themselves during the installation process would have been excluded. It is possible, therefore, that coverage may depend at least in part on the scope of the insured’s work as defined by contract, and so insureds will want to give some thought as to whether there is a practical way to structure their contractual arrangements on a given project in order to minimize the application of the ‘faulty workmanship’ exclusion and thereby maximize potential coverage.

Court Finds It is an Abuse of Process For ICBC to File Inconsistent Pleadings From Single Collision

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Interesting reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding it is an abuse of process for a defendant sued by multiple parties from a single collision to admit liability in one action but deny in the other “where there are no facts to distinguish the two”.

In today’s case (Glover v. Leakey) the Defendant was involved in a crash and injured two passengers.  One sued and fault was admitted and ultimately settlement reached.  The second sued but fault was denied.  In the midst of a jury trial the Plaintiff discovered the inconsistent pleadings and asked for a finding of liability.

Due to a misunderstanding the matter proceeded to verdict and the jury found the Defendant was not negligent.  Before the order was entered the Court considered the matter and found that the liability denial was an abuse of process, stripped the defence and granted liability in favour of the plaintiff.  In reaching this result Madam Justice Gropper provided the following reasons:

[67]         In considering my analysis of this application, I must note that the Insurance Corporation of British Columbia (ICBC), the Province’s public mandatory motor vehicle insurer had conduct of both the Glover and the Yeomans actions. The evidence provided is sparse, but it is clear that the adjuster in the Yeomans Action determined that liability would be admitted on behalf of Mr. Leakey whereas the adjuster in the Glover action determined that liability would be denied. I expressly find that ICBC knew of the inconsistent pleadings and that the insured, Kenneth Leakey knew or ought to have known of the inconsistent positions…

[93]         The defendant claims that to find these pleadings as inconsistent and an abuse of process will discourage admissions, contrary to public policy. I find that there is much larger public policy at stake. It is an abuse of process to allow a defendant to admit liability in respect of one passenger and deny liability in respect of the other where there are no facts to distinguish the two. Requiring a party, even ICBC, to file consistent pleadings is not onerous and, with respect, is a principled way to proceed. The pleading of inconsistent positions in this case cannot be condoned.

[94]         I have declared a mistrial in this case. It may appear that my decision on the abuse of process application is moot. It is not for three reasons:

1.               A declaration of mistrial means that the matter will proceed to a new trial.

2.                I grant judgment on the liability issue in favour of the plaintiff.

3.               The plaintiff seeks special costs related to the abuse of process and has asked for leave to provide further submissions in that regard.

[95]         Both parties may seek to appear to address the issue of special costs based on my finding of an abuse of process.

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