Appeal by Travelers Insurance from a decision dismissing its appeal from an arbitrator’s decision requiring the appellant to reimburse the respondent CAA for the benefits CAA had paid to CAA’s insured and to assume responsibility for paying the benefits to her in the future. The claimant was catastrophically injured in an accident in Nunavut where she was temporarily employed. She was driving a Nunavut plated vehicle owned by the Government of Nunavut and covered by a Nunavut motor vehicle insurance policy issued by the appellant to the Government of Nunavut. Under that policy the claimant was entitled to Nunavut statutory accident benefits. The claimant, ordinarily resident in Ontario, owned a car plated in Ontario and insured by CAA. Under the terms of her Ontario insurance policy, the claimant was contractually entitled to claim Ontario statutory accident benefits from CAA. The arbitrator found that the appellant was an Ontario insurer because it was licensed to undertake automobile insurance in Ontario. He also found the appellant was bound by the power of attorney and undertaking, which it signed in 1964 and thus became an insurer in the province or territory where the claim was brought.
Held, the appeal should be allowed.
The arbitrator erred in law in finding that the appellant was an Ontario insurer required to arbitrate priorities with CAA under s. 268 of the Ontario Insurance Act, R.S.O. 1990, c. I.8. In respect of the Nunavut policy and the accident in Nunavut the appellant was not considered an Ontario insurer for the purpose of the priority provisions of the Ontario Insurance Act. It was thus not obliged to indemnify CAA or to assume CAA’s obligations to the claimant. Ontario’s insurance laws did not have extraterritorial effect. The arbitrator erred in finding that a signatory to the power of attorney and undertaking essentially became an insurer in the province or territory where the claim was brought. Even if the appellant was an Ontario insurer, the arbitrator misapplied s. 268 by failing to give effect to Nunavut law regarding the claimant’s status and the limits on her entitlement to Nunavut benefits under Nunavut legislation. The Ontario Insurance Act had no application to the Nunavut policy on the facts of this case. An insurance policy could not both be governed by Ontario and Nunavut law at the same time. The Nunavut legislation clearly stated that Nunavut law governed the contract. Under the Nunavut policy, the claimant was not a named insured and the Nunavut legislation did not include the concept of a deemed named insured. Both the arbitrator and the appeal judge erroneously treated the appellant as an Ontario insurer in this case and the Nunavut policy as an Ontario policy.
The appellant was a veteran who suffered a workplace injury and whose only source of income was from Ontario Works. He was a tenant in building complex owned by the respondent, which provided affordable alternative housing for those hard to house. In 2016, the parties reached a mediated settlement in which the appellant was ordered not to post items or symbols of any kind in the common areas of the residential complex. In 2019, the respondent applied to the Landlord and Tenant Board ex parte to evict the appellant for breach of that order. The board made an eviction order in November 2019. The appellant requested a review, resulting in a stay of eviction. On January 21, 2020, the board confirmed the eviction and lifted the stay. The appellant did not move out of his unit by the deadline of February 1, but filed a review of the eviction order. On February 19, the appellant attended the board to discover that his review request had been denied the previous day. He returned to his unit to find that the sheriff’s office had executed the eviction and that the lock had been changed, resulting in the commencement of an appeal to the Divisional Court and a stay of the eviction order. The respondent refused to allow the appellant back into his unit. The appellant moved for an order to reinstate his tenancy pending the hearing of the appeal.
Held, the motion should be allowed.
The Divisional Court had jurisdiction to reinstate the tenancy pending the hearing of the appeal. There was a broad jurisdiction under s. 134(2) of the Courts of Justice Act, which provided that a court may make any interim order considered just to prevent prejudice to a party pending an appeal. The appellant filed his appeal in time so there was no reason to deprive him of his rights
simply because the respondent and the sheriff acted swiftly in executing the eviction order.
The test for interim relief was met. The January 21 order made no reference to the appellant’s circumstances other than the fact that he had entered into an agreement not to post symbols. The board did not consider that there was no evidence that the appellant had not complied with the other terms of the settlement agreement, that the breach was relatively minor, that the breach came three years after the settlement was reached, that the appellant was on social assistance and that he depended on a rent subsidy for housing. The February review order found that the Board considered the appellant’s circumstances, but nothing in the original decision justified the finding. The low threshold for a serious issue to be tried was met. In light of the appellant’s homelessness and low income in the context of the COVID-19 pandemic, he met the requirement to show irreparable harm and likely would have done so even without the pandemic. As the respondent had relied on a relatively minor breach of the settlement agreement in support of the eviction, evidence that the appellant was a difficult tenant who had engaged in threatening behaviour was insufficient to establish that the balance of convenience favoured the respondent.
The plaintiff found an unattended purse in a shopping mall and turned it over to a bus driver. The owner of the purse reported it to the police as stolen. The police obtained surveillance video of the plaintiff taking the purse and posted it on the Crime Stoppers website with a caption that referred to a “purse snatching” and described the plaintiff as a “suspect” who “stole a purse”. The plaintiff sued the police and Crime Stoppers for damages for libel and negligence. The defendants brought a motion for summary judgment dismissing the claims.
Held, Crime Stoppers’ motion should be granted in part; the police motion should be dismissed.
Crime Stoppers had a complete statutory defence to the libel claim under s. 3(3) of the Libel and Slander Act as it published a fair and accurate synopsis of a notice issued for the information of the public by a public authority and there was no allegation of malice. The libel claim against Crime Stoppers was dismissed. The police defendants were unable to demonstrate conclusively at the summary judgment stage that they came within one of the recognized defences to a defamation action. There were genuine issues for trial on that issue and on the issue of whether
either defendant owed the plaintiff a duty of care. The libel claim against the police and the negligence claim against both parties should proceed to trial.
The insurer took the position that the insured’s predominant injury was a minor injury as defined in s. 3 of the Statutory Accident Benefits Schedule (“SABS”), so that he was entitled to claim a maximum of $3,500 in medical and rehabilitation benefits pursuant to s. 18(1) of SABS and would not be entitled to claim for attendant care benefits pursuant to s. 14. The parties applied for arbitration. As a preliminary issue, the insurer brought a motion for an order that the insured was suffering from minor injuries and was therefore limited in the benefits he could claim. The arbitrator determined that the insured did not fall under the Minor Injury Guideline — Superintendent’s Guideline No. 2/10 and was entitled to medical and rehabilitation benefits beyond the maximum prescribed in s. 18 of the SABS. The director’s delegate allowed the insurer’s appeal. The insured brought an application for judicial review of that decision.
Held, the application should be allowed.
The standard of review of the director’s delegate’s decision was reasonableness.
The director’s delegate reasonably, and in fact correctly, concluded that the arbitrator erred in finding that ss. 14 and 18 of the SABS provide for exclusion of coverage, so that the onus was on the insurer to establish that the insured was bound by the $3,500 limit. The burden remained on the insured throughout to establish entitlement to the appropriate level of benefits.
The director’s delegate’s finding that the Minor Injury Guideline is as binding as the SABS was not reasonable. To be incorporated by reference into a statute or regulation, material must be referred to expressly in the statute or regulation, and required for the proper interpretation of that part of the statute or regulation which expressly refers to it. There is no provision in the SABS which expressly incorporates by reference the entirety of the guideline. In each instance in which
the guideline is expressly referred to, one must undertake an analysis of the extent to which, if at all, the guideline is required to enable a proper interpretation of the section in question. It is only to that extent that the guideline is incorporated by reference.
The director’s delegate reasonably found that the insurer was denied procedural fairness because the arbitrator conducted his own research and raised his own arguments for the first time while rendering his decision without first giving counsel an opportunity to make submissions.
The parties entered into an agreement of purchase and sale which contained an “entire agreement” clause. Before the transaction closed, the defendant vendors completed a seller property information statement (“SPIS”) in which they stated that the property was not subject to flooding and undertook to inform the plaintiff purchasers of any important changes to the information contained in the SPIS. The defendants failed to inform the plaintiffs of a pre-closing basement flood. After the closing, the basement flooded again, and the plaintiffs found out about the earlier flood. They sued the defendants for damages for negligent misrepresentation. The trial judge found that the entire agreement clause in the agreement of purchase and sale acted as a bar to the action. The Divisional Court allowed the plaintiffs’ appeal. The defendants appealed.
Held, the appeal should be allowed.
The action was not precluded by the entire agreement clause. The entire agreement clause operated retrospectively, not prospectively. Its application was restricted to limit representations, warranties, collateral agreements and conditions made prior to or during the negotiations leading up to the signing of the agreement of purchase and sale. When the defendants made representations in the SPIS, a document completed after the agreement of purchase and sale was signed, the entire agreement clause was spent.
The plaintiffs’ negligent misrepresentation claim failed in the absence of evidence that they relied on the defendants’ representations.