Carfra & Lawton

Insurance Coverage Subtleties & Practice Notes

afcameron — Thu, 26 Jan 2012 17:02:55 +0000

The following paper was presented at the Insurance Law Conference, hosted by BC CLE, in Vancouver, BC on September 28, 2011.

Insurance Coverage Subtleties & Practice Notes - PDF

For more information, please contact Dean P.J. Lawton or Christopher H. McDougall.

The Insuring Agreement - Key Determinations for Coverage for Property and Liability

afcameron — Wed, 25 Jan 2012 18:28:17 +0000

The following paper was presented at the Insurance Law Conference, hosted by BC CLE, in Vancouver, BC on September 28, 2011.

The Insuring Agreement - PDF

For more information, please contact Giles P.G. Deshon.

BC Court of Appeal Upholds Order That Insurer Must Defend Municipality as Additional Insured

ncarfra — Wed, 19 Oct 2011 00:02:24 +0000

October 5, 2011

BC’s highest court has upheld a lower court order that an insurer must defend a municipality as an additional insured in an underlying bodily injury lawsuit. The claim arose when a man on his way to a dog training class within a District of Saanich community centre gymnasium was struck on the head by a lacrosse ball tossed by a member of a club which had rented space in another part of the same gym.

Under the terms of the facility use agreement, the club caused the municipality to be added as an additional insured under the club’s liability policy underwritten by the insurer. That coverage was restricted “solely with respect to the liability which arises out of the activities of the named insured.” The insurer refused to defend Saanich so the municipality successfully petitioned the BC Supreme Court for an order compelling the insurer to defend. The insurer appealed.

In dismissing the insurer’s appeal, the Court unanimously held that:

… The true nature of the substance of the claim is a claim arising from the lacrosse associations’ activities, in the context of Saanich’s role in facilitating them, whether or not liability attaches to the lacrosse associations. In other words, the pleadings contain allegations of the requisite unbroken chain of causation; there is no independent fault alleged against Saanich which would support an action in negligence absent the activities of the lacrosse associations. Consideration of the “errant” aspect of the lacrosse ball intimately implicates the actions of Saanich.

Neil Carfra, one of the partners with Carfra & Lawton, represented the District of Saanich in this matter. Please feel free to contact him if you have coverage or occupier liability concerns.

Read the decision, Saanich (District) v. Aviva, 2011 BCCA 391.
Read Canadian Underwriter’s article about it here.

Court of Appeal confirms there is only one occupier’s standard of care in BC

ncarfra — Fri, 29 Apr 2011 21:12:34 +0000

BC’s highest court recently dismissed the appeal of a Canada Safeway customer who fell in one of its stores and, in the same judgment, clarified occupier liability law in this province. The plaintiff asked the trial judge to draw an inference that she fell due to water on the floor. He refused to do so, holding that that was just speculation.

The BC Court of Appeal agreed and dismissed the appeal. In doing so, it grappled with the plaintiff’s contention that there are two types of occupier liability cases in BC:

[18] The plaintiff says, further, that the chambers judge erred in finding that the sweep and inspection policies of the store were adequate to meet the requirements of the Occupiers Liability Act. She contends that there are two types of occupiers’ liability cases: “due diligence cases” and “unsafe conditions cases”. She accepts that in “due diligence” cases, a system such as the one in place in the case before us would satisfy the requirements of the Act. She says, however, that where the occupier has created an “unsafe condition”, there is a greater duty to take care to protect visitors to the premises from risk. In support of this argument, she cites Elder v. Westfair Foods Ltd., 2001 ABPC 94 and Stonechild v. Westfair Foods Ltd., 2001 SKQB 466.

The court rejected this notion, stating:

[19] I do not agree with the plaintiff’s contention that different standards of care apply to different types of hazards on an occupier’s premises. The Occupiers Liability Act establishes a single standard of care, “a duty to take that care that in all the circumstances of the case is reasonable to see that a person … will be reasonably safe in using the premises.” While the extent of a danger posed by any particular hazard will obviously be an important factor in assessing the reasonableness of an occupier’s response to it, I do not think that it is helpful to define different types of hazards that entail different standards of care.

This is an important decision because of the Court’s affirmation that in BC there is only one standard of care: the one set out in the Occupiers Liability Act. It also suggests the peril that exists if one relies on occupier liability law from other jurisdictions where the common law still applies or where occupier legislation is essentially a codification of the common law.

A full copy of the decision is available for free at:

http://www.courts.gov.bc.ca/jdb-txt/CA/11/02/2011BCCA0202.htm

Neil Carfra, one of the partners with Carfra & Lawton, represented Canada Safeway in this matter. Please feel free to contact him if you have occupier liability concerns.

Defence medical exams under B.C.’s new rules

ncarfra — Mon, 14 Feb 2011 23:48:03 +0000

Giles Deshon of Carfra & Lawton sheds light on the topic of defence medical exams under British Columbia’s new Rules of Court.

DOWNLOAD OUR PAPER

British Columbia’s New Supreme Court Civil Rules

ncarfra — Thu, 05 Aug 2010 20:18:11 +0000

On July 1, 2010, British Columbia’s new Supreme Court Civil Rules came into effect, bringing with them significant changes of relevance to litigants, lawyers and insurers. Some of the major revisions relate to the commencement of proceedings, the scope of and time for discovery, delivery of documents, expert evidence, and fast-track proceedings. There is, as well, a new case planning regime. We have prepared a paper on the subject.

DOWNLOAD OUR PAPER HERE

Health Care Costs Recovery Act in force April 1, 2009

ncarfra — Thu, 15 Jan 2009 22:14:35 +0000

The new BC Health Care Costs Recovery Act is about to come into force on April 1, 2009. It provides the Province with the legal tools it says it needs to recover hospital and other medical expenses from persons (and their insurers) who injure others in accidents. It will add a new layer of complexity to claims management and greater indemnity exposures too. One of our partners, Dean Lawton, has recently written on this topic. Please follow the link below to read his article.

Health Care Costs Recovery Act paper

Property manager and strata corporation not fiduciaries to strata owner

ncarfra — Thu, 08 Jan 2009 19:55:02 +0000

The BC Court of Appeal has determined that a strata corporation in Victoria and its property manager did not owe fiduciary duties to put up a railing on the patio deck of an owner whose patio lacked a railing. One of our partners, Neil Carfra, conducted the defence of the matter.

As the court noted in its unanimous reasons issued December 29, 2008, “On 4 August 1998, the plaintiff/appellant Rose Petersen fell over a 26-inch wall at the edge of the patio outside her condominium, dropping 13 feet into a concrete stairwell and suffering serious injuries.”

Acting without a lawyer, the plaintiff missed the two-year limitation period for commencing action for personal injuries in tort, contract and statutory duty, but in 2005 a Supreme Court judge permitted her to amend her pleadings to plead breach of fiduciary duty, which carries with it a six-year limitation period.

In the summer of 2007, a BC Supreme Court justice agreed with Mr. Carfra that the defendants owed the plaintiff no fiduciary duty to put up the railing, even though they had agreed to do so but did not get the job done before the plaintiff fell. The plaintiff appealed.

In concluding that no fiduciary duty existed in this instance, the Court of Appeal wrote, “The claim for breach of fiduciary duty attempts to overcome the limitation period that now bars her common law action.” The court continued:

… there was no element of unconscionability toward Ms. Petersen that elevates her claims beyond the boundaries of contract and tort. It follows that the relationship between Ms. Petersen and the respondents did not satisfy the fiduciary elements outlined in Frame v. Smith. Ms. Petersen was not vulnerable to any discretion or power assumed by the respondents to exercise selflessly on her behalf related to the wall and railing. The relationship was entirely defined by common law obligations and those duties are time limited by the statutory limitation periods. While I sympathize with Ms. Petersen’s plight, I do not think that we can create a fiduciary relationship where one does not otherwise exist simply to defeat a limitation defence.

The decision can be read at this link: Petersen v. Proline Management Ltd, 2008 BCCA 541.

Can bodily injury result in loss of corporate income?

ncarfra — Sat, 08 Nov 2008 21:58:47 +0000

Aron Bookman, one of our partners, has recently written on this topic. Please see his article in the November 2008 issue of Insurancewest, pages 30 and 31.