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THE INHERENT RISKS OF CROSS-COUNTRY SKIING

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					                                          THE INHERENT RISKS OF
                                          CROSS-COUNTRY SKIING
                                          The Ontario Court of Appeal’s recent decision in Schneider v. St. Clair Region
                                          Conservation Authority (2009), 97 O.R. (3d) 81 is an interesting judgment that is
                                          of relevance to insurers offering liability coverage to public authorities and rural
                                          property owners and managers alike. The ruling reinforces provisions of the Occupi-
                                          ers’ Liability Act, namely section 4, which imposes a less onerous duty of care upon
                                          occupiers of expansive or otherwise untamed property where those premises are used
                                          by non-paying members of the public.

                                          In this case, Joanne Schneider, a            scenarios outlined in section 4(3)
                                          professor of kinesiology and a               applied, which would deem that the
                                          former Olympic athlete, had taken            Conservation Authority only owed
                                          her family cross-country skiing in a         this lesser duty. That subsection, in
                                          public park in the Coldstream                conjunction with subsection (4),
                                          Conservation area on January 30,             prescribes that a person is deemed
                                          2005. The Court considered an                to have willingly assumed “all risks”
                                          appeal from a trial decision that            when travelling on rural premises
                                          found the St. Clair Region Conser-           and recreational trails.
                                          vation Authority liable for the
                                          serious personal injuries suffered by       In a well-reasoned judgment that
                                          Ms. Schneider after she inadver-            relied heavily upon public policy
                                          tently traversed over the top of a          considerations as articulated at
                                          concrete wall that permeated                public hearings held while drafting
                                          through ice covering a lake which           the Act, the Court of Appeal repeat-
                                          she was cross-country skiing over.          edly highlighted the purpose of
                                          The wall, which was a remnant               having a lower standard in the
                                          from an abandoned watermill,                above situations. These provisions
                                          protruded six inches above the ice.         of the Act, the Court wrote, were
                                          It was concealed by considerable            enacted so as to encourage occupi-
                                          snow that, barring the concrete             ers of rural lands to make their
                                          wall, was otherwise suitable for this       premises accessible to the public. It
                                          recreational activity. It was not           was viewed that this objective could
                                          seriously disputed that the Conser-         be best accomplished by reducing
                                          vation Authority was an occupier.           occupiers’ liability exposure to
                                                                                      non-paying members of the public
                                          The Act imposes two standards of            who might suffer injury while
                                          care that are relevant to this litiga-      traversing over these rural lands.
                                          tion. The first, which is outlined at
                                          section 3 and generally applies in          In Schneider, the appellate court
      A Quarterly Newsletter              most occupiers’ cases, requires that        overturned the trial judge’s finding
      published by                        occupiers take all “reasonable” steps       that the lake did not constitute a
      Dutton Brock LLP                    to keep persons and their property          “recreational trail”, which would
                                          “reasonably safe”. There also exists,       have exempted the defendant from
                                          however, a lesser standard whereby          the higher standard of care. The
                                          occupiers are simply required to            trial judge had found that because
                                          “not create a danger with deliberate        the lake was off the marked trail,
                                          intent of doing harm...and to not           the exemption from the usual duty
                                          act with reckless disregard”. That          of care did not apply. Citing sound
                                          more favourable standard, from a
                                          defence perspective, is prescribed by       cont’d on page 2, see Inherent risks
         Winter 2010
                                          section 4 and is invoked whenever a
         Issue Number 32
                                          person “willingly assumes” risks.            Other topics
                                                                                        Chronic Pain Limitation
“I wanted to be an olympic swimmer,
but I had some problems with buoyancy.”   The central issue in Schneider                Right to Know case
~Woody Allen                              involved a determination as to                Is overtime available ?
                                          whether any of the specific
from page 1, see Inherent risks
Inherent risks
policy though, the Court of Appeal              Ontario Limitations Act, 2002             While the limitation period does
highlighted that it would be unjust             replaced a varied set of limitation       not necessarily start to run on the
to hold the occupier to the higher              periods, each dependent upon the          date of the accident, it is not
standard of care where the plaintiff            type of claim issued, with a catch-all    delayed until a party knows with
had wandered from the marked                    two year limitation period running        certainty that his or her injuries
trail.                                          from the date a claim is discovered,      have surpassed the “threshold”.
                                                subject to some minor exceptions.
Accordingly, the Court confirmed                A plaintiff is now barred from suing      The decision in Everding applies
that the lesser standard applied and            two years after the date in which he      this test to its facts. Ms. Everding
that, per the statute, the trial judge          or she reasonably discovered his or       was involved in a collision on May
had been bound, without discre-                 her injury, the act or omission           24, 2000. Immediately following
tion, to find that the plaintiff had            causing the injury, the person            the accident she suffered headaches.
assumed “all risks” associated with             responsible and that a lawsuit            These headaches incrementally
travelling over the lake. In doing so,          would be appropriate means of             increased in frequency. By June
the Court implicitly indicated a                redress in the circumstances.             2004, she was suffering from head-
willingness to interpret the exemp-                                                       aches everyday.
tions in section 4 broadly, thereby             Under the Ontario Insurance Act, an
strengthening liability insurers’               owner or occupant of a vehicle            She began a number of rehabilita-
defences in these types of claims.              involved in an automobile accident        tive programs including physio-
              Paul Martin was called to the     or person present at a scene of an        therapy, massage, chiropractic and
              Ontario Bar in June 2008.         accident (“protected defendants”)         cranial sacral massage which
              Paul is developing a practice     cannot be sued for the recovery of        continued until 2005. By May
              centred upon product liability,   an injured party’s healthcare             2004, she was advised by her family
              automobile, and complex           expenses or non-pecuniary damage          physician that she was suffering
insurance claims.
                                                unless the injured party has suffered     from a chronic pain condition and
Chronic pain limitation                         a permanent, serious disfigurement
                                                or permanent, serious impairment
                                                                                          would continue to do so indetermi-
                                                                                          nately.     In January 2005, a
How long can a person injured in an             of an important physical, mental or       treatment plan was prepared which
automobile accident wait before                 psychological function (the “thresh-      documented her inability to carry
bringing a lawsuit? What if the full            old”).                                    out certain household tasks on a
extent of his or her injuries become                                                      daily basis. In August 2005, her
known only years later?                         The motions judge in Everding             plan recommended indefinite
                                                cited a number of decisions which         treatment. Everding issued a State-
In the decision Everding v. Skrijel             indicate that a claim is discovered in    ment of Claim on August 1, 2007.
(2009), 97 OR (3d) 155, the plain-              a “threshold” case on the date that
tiff filed a claim for injuries arising         there appears to be a reasonable          The judge found that a claim for
from an automobile collision over               likelihood that permanent, serious        ongoing and indeterminate pain
seven years from the date of her                disfigurement or impairment will          affecting the plaintiff ’s daily activi-
accident. The Court was required                result. It is summarized by one           ties was discoverable, at the latest,
to consider whether her claim was               judge as follows:                         in May 2004. The Court, accord-
barred by operation of the Limita-                                                        ingly, held that she missed the two
tions Act, 2002 and in light of the             In a threshold case, that principle [is   year limitation and was statute-
“threshold” provisions of the Insur-            this]: once a plaintiff knows or ought    barred from proceeding. Her claim
ance Act.                                       to know that damage has occurred          was dismissed. The result was that
                                                which may reasonably meet the             Everding receives a “DNQ” while
The statutory provisions can be                 threshold tests… the cause of action      the motions judge gets the gold.
explained fairly simply. The                    has accrued.
                                                                                          Eric Adams joined Dutton Brock as an associate
                                                                                          in August 2009. He is developing a practice
                                                                                          focused on insurance coverage disputes, general
                                                                                          negligence, automobile and products liability.



                                                                                          Right to know case
                                                                                          In the recent decision of Benedetto v.
                                                                                          Giannoulias (2009), O.J. No. 3218
                                                                                          (S.C.J.), the court reinforced the
                                                                                          fundamental premise that a defen-
                                                                                          dant must be afforded full opportu-
                                                                                          nity to meet the case brought
from page 2, see Right to know case
Right to know case
against it. “Full opportunity”               ing the duty imposed by Rule 31.09
includes the right to conduct                to correct the record.       Justice
further discovery where it is just for       Howden nonetheless held that
the defendant to do so.                      although Rule 31.09 (1) stipulates
                                             an obligation to correct the record
An elderly plaintiff was injured             and 31.09 (2) makes exposure to
when she slipped and fell in her             further discovery a consequence of
doctor’s office. She alleged that as a       doing so, if leave was not required
result of the fall, she suffered             under Rule 48.04 (1) it would have
fractures to her hip and wrist as well       been stated therein.
as back pain, nervous shock and
depression. At her discovery in              In arriving at this position, Justice
June 2007 the plaintiff testified that       Howden distinguished “routine
apart from a hysterectomy and                interlocutory” requests (which
fractures to the hip and wrist, her          could be made to the trial judge)
visits to the doctor both before and         from those affecting “substantive
after the accident were in respect of        rights”.    He decided that this
“cold or flu” only. She gave under-          distinction was a significant consid-
takings to provide medical records           eration in applying the two-prong
and an OHIP summary.                         test cited in Fraser v. Georgetown
                                             Terminal Warehouses Ltd. (2005)
The action was set down for trial in         (S.C.J.) and Hill v. Ortho Pharma-
February 2008 with the defendants’           ceutical (Canada) Ltd. (1992) (Gen.                 Is overtime available?
consent. Thereafter, the plaintiff‘s         Div.). That test requires that there
counsel produced medical records             must be a substantial change of                     In September of 2008, Mr. Mato
from several hospitals and at least          circumstances; and that a refusal to                Golic sought to amend his Statement
five doctors. These documents                make the order would be manifestly                  of Claim to add claims for income
showed that contrary to the                  unjust.                                             replacement benefits, disability
plaintiff ’s evidence at the discovery,                                                          benefits and caregiver benefits arising
she suffered from lightheadedness,           Justice Howden held that the                        out of a motor vehicle accident, which
breathing difficulty and chest pain          plaintiff ’s claims had changed                     occurred in 1995.          Mr. Golic’s
before the accident.                         substantially from her position at                  Insurer, ING Insurance, had paid
                                             the discovery and refusal of a                      other disability benefits to Mr. Golic
The defendants moved for an order            continued examination would                         up until January 31, 2007 at which
to      compel       the      plaintiff ’s   seriously prejudice the defendants’                 time the benefits were terminated.
re-attendance at discovery. The              rights and amount to manifest                       The court decision was made in Golic
parties agreed that plaintiff ’s coun-       injustice. He ordered the contin-                   v. ING Insurance Co. of Canada,
sel would provide a letter to correct        ued examination within certain                      [2008] O.J. No. 5408 (S.C.J.).
incorrect or incomplete answers              parameters.
given on discovery. The plaintiff ’s                                                             ING took the position that Mr.
solicitor stated in this letter that his     The overarching principle in Justice                Golic’s claim was time barred and
client attended dozens of medical            Howden’s decision is that “[n]o rule                that the limitation period has long-
appointments and forgot to                   should be so rigid in its application               since elapsed. Mr. Golic argued
mention left knee pain which was             that injustice would result from its                that a January 23, 2000 letter from
related to the fall. Several medical         over-simplicity”. This decision goes                ING advising him of its decision to
visits and medication were attrib-           a long way to reaffirming the long-                 terminate and not reinstate his
uted to this injury. Plaintiff counsel       established right of a defendant to                 benefits did not trigger the two year
resisted continued examination on            know the case against it and to be                  limitation period because the letter
the ground that the action had been          afforded the opportunity to make                    failed to fully explain the remedies
set down for trial and there was no          full answer in defence of the allega-               available to him and the procedures
substantial or unexpected change in          tions in the Statement of Claim.                    applicable as outlined in the SABs.
circumstances which would permit
further discovery.                                          Ann M. Christian-Brown is a          Mr. Golic relied on the decision of
                                                            member of both the Ontario
                                                            Bar and the Jamaica Bar.
                                                                                                 the Supreme Court of Canada in
Justice Howden determined that                              Ann’s practice involves              Smith v. Co-operators [2002] S.C.J.
leave was required to bring the                             litigation with a focus on           No. 34, in which it was held that
motion. He stated that setting a             product liability, occupiers’ liability, personal   the insurer has an obligation to
matter down for trial was subject to         injury, insurance coverage disputes, class          provide a description of the most
the continuing discovery obliga-             proceedings and professional liability.             important parts of the dispute
tions under Rule 48.04 (2), includ-                                                              resolution process and a description
                                                                                                 cont’d on next page
                                                                                           incident in November of 2009
                                                                                           when a man in Winnipeg tried to
                                                                                           steal a car at gunpoint from a
                                                                                           woman. She complied and handed
                                                                                           over her keys, only to find the
                                                                                           gunman handing them back after
                                                                                           looking inside the vehicle and
                                                                                           realizing the car had a standard
                                                                                           transmission, which he didn't know
                                                                                           how to drive.

                                                                                           The second incident occurred in
                                                                                           Germany. A vehicle was reported
                                                                                           stolen in 2007 after the 82 year-old
                                                                                           owner took the car in for repairs
continued from page 3                                                                      and arranged to have the mechanic
                                                                                           shop return it to her garage. When
Is overtime available?                                                                     the car did not show up, the car was
                                                                                           reported as stolen and a claim was
of the relevant time limits that        Quigley J. stated that “it verges on               made. In July of 2009 the car was
govern the entire process. Further,     hyperbole to assert here that [Mr.                 found in a neighbour's garage. It
the descriptions must be provided       Golic] would not have been and                     turns out the mechanic dropped it
to the claimant in a clear straight-    was not fully aware of exactly what                off at the wrong address. The
forward form, directed towards an       procedural options were available to               neighbour, who did not use his
unsophisticated    person      using    him and the time within which                      garage, only discovered it when he
layman’s language. All of which         those rights needed to be acted                    went to clean out the building in
were to ensure a certain amount of      upon.” Further, it became apparent                 contemplation of renting the prop-
consumer protection.                    to the Court that Mr. Golic was                    erty.
                                        attempting to “mask his own failure
In Golic, Quigley J. established that   to prosecute this new claim on a                   For our contest to win cool Dutton
in order for Mr. Golic to succeed in    timely basis.”                                     Brock swag, provide the correct
his argument that ING failed in its                                                        answer on the make of the vehicle
obligation, he would need to satisfy    Given the facts presented, it was                  reported stolen in Germany in
two threshold tests. First, that the    clear that ING would have certainly                2007. Consider that this is the
amendment sought would not              suffered irreparable prejudice in                  Winter       Games    edition   of
cause prejudice to ING that cannot      attempting to gather evidence for a                E-Counsel and think about the
be compensated for in costs.            motor vehicle accident that took                   well-known rings logo of the
Second, the existence of special        place over 13 years ago. Ultimately,               Games. Correct answers received
circumstances and onus of estab-        Quigley J. determined that Mr.                     by the end of the Winter Games
lishing that amending his pleading      Golic failed to satisfy his onus of                will be put in a hat and drawn to
to add new claims outside of the        proving both threshold tests and he                select the lucky winner.
limitation period would not result      was, therefore, not permitted to
in irreparable prejudice to ING.        amend his Statement of Claim.
                                                                                            Editors’ note
The facts in Golic, however, were                        Elizabeth DiQuattro is an
                                                                                            E-counsel reports on legal issues and litigation
distinguishable from the facts in                        associate at Dutton Brock whose    related to our institutional, insurance and
                                                         practice is comprised of           self-insured retail clients. Dutton, Brock LLP
Smith. Golic waited seven years to                       litigation focusing on personal    practices exclusively in the field of civil litigation.
initiate the court action, whereas                       injury, general negligence,        Any comments or suggestions regarding E-counsel
Smith missed the limitation by           occupiers' liability and product liability.        can be directed to dlauder@duttonbrock.com or
                                                                                            by calling us at 416-593-4411.
merely months. Further, in Smith
the Plaintiff proceeded to media-
tion prior to commencing an action
                                        Gold medal auto
for her claim. Golic however was a      insurance claims
much more experienced litigant          In an article from the Toronto Star
who proceeded to mediation of his       Wheels Section, written by Jill                            LITIGATION COUNSEL
accident benefit claim on three         McIntosh, reports from the weird                              www.duttonbrock.com
separate occasions prior to, and on     and wacky moments for 2009                                     Dutton Brock LLP
one occasion after, receiving the       included two potential insurance                      438 University Avenue, Suite 1700
January 23, 2000 letter from ING.       claims. The first involved an                            Toronto, Canada M5G 2L9

				
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