Safai v. Bruce N. Huntley Contracting Limited
Sasha Safai (minor), Litigation Guardian, Leslie Anne Wilkes, Joebeen Safai, Parissa Safai, Hormoz Safai and Gity Safai (Appellants, Plaintiffs)
and
Bruce N. Huntley Contracting Limited (Respondent, Defendant)
and between
Sasha Safai, Leslie Anne Wilkes, Jeobeen Safai, Parissa Safai, Hormoz Safai, Gity Safai
and
Markham Property Services Ltd.
Introduction
The appellant, Gity Safai, slipped and fell on a patch of ice in a parking lot on February 17, 2000 and suffered a broken ankle. On Feb, 23, 2006, she and members of her family commenced an action against the owner of the parking lot and on Sept 27, 2006, they commenced a separate action against the company responsible for the winter maintenance of the parking lot. The defendants (respondents in the appeal) moved for summary judgement based on the expiry of the six year limitation period.
Ms. Safai and the other appellants raised the discoverability rule in response to the motions for summary judgement. Mullins J. of the Superior Court of Justice held that the discoverability rule had no application to either case and dismissed both actions.
The appellants appeal to this court and submit that the motion judge erred in concluding that the discoverability rule did not apply to extend the limitation period in respect of either action.
The Appeal:
(1) The motion judge erred by refusing to accept that the discoverability rule postpones the running of the limitation period.
(2) The motion judge erred in failing to conclude on the test for summary judgement that the respondents had failed to establish that the limitation period in both actions had expired.
Analysis:
The discoverability rule has been developed and discussed in a number of cases in courts since the mid-1980s. Refers to Consumers Glass Co. v. Foundation Co. of Canada (1985), Peixeiro v. Haberman (1997), Fehr v. Jacob (1993), and Coutance v. Napoleon Delicatessen (2004).
As I read the reasons for judgement of the motion judge, she correctly articulated the discoverability rule and fully understood that its effect is to postpone the running of a limitation period. I find no error in her articulation of the rule and would not give effect to the appellants' first ground of appeal.
As of the date of the accident, she was in a position to ascertain the name of the registered owner of the property. Reasonable diligence on her part and on the part of her lawyer produced the name of the registered owner of the building in due course. In my view, there is simply no reasonable basis in these circumstances to invoke the discoverability rule to postpone the commencement of the limitation period.
In my view, the motion judge erred in failing to consider the application of the discoverability rule in that situation. It would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge. It would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge.
Disposition:
I would dismiss the appeal from the order dismissing the action against Huntley. I would allow the appeal in respect of the action against Markham and set aside the order dismissing the action
Wednesday, August 25, 2010
Tuesday, August 10, 2010
FSCO, D'Ettorre and Coachman Insurance Company
Appeal P09-00029
Coachman Insurance Company (Appellant)
Alex D'Ettorre (Respondent)
Published: July 28, 2010
Hearing Date: January 18, 2010
Nature of Appeal:
Coachman Insurance Company (CIC) appeals the Arbitrator's order that The Nordic Insurance Company of Canada (The Nordic) is not precluded from proceeding in the name of Mr. Alex D'Ettorre.
Background:
Mr. D'Ettorre was injured in a motor vehicle accident on November 7, 2001 in a collision between his pickup truck and a trackor-trailor. CIC insured him, and The Nordic insured the trackor-trailer. Mr. D'Ettorre received income replacement benefits under the SABS 1996 from Coachman until it ceased payment in October 2005. Mr. D'Ettorre sought their reinstatement in mediation and then in arbitration. Mr. D'Ettorre also commenced a third-party tort claim against The Nordic's insureds.
On August 22, 2008, Mr. D'Ettorre settled his tort action, entered into minutes of settlement with The Nordic and signed a release. The release included an assignment to the Nordic of his SABS claim against Coachman. The Nordic recieved a concent judgment dated September 5, 2008, which repeated the terms of the settlement and the assignment and dismissed the action.
The Nordic purported to pursue the arbitration proceeding in Mr. D'Ettorre's name pursuant to the assignment, despite the provision in s. 65(1) of the SABS that the assignment of the right to pursue an arbitration proceeding is void. Coachman moved to prevent The Nordic from proceeding, on the basis that there had been no trial but merely a consent order, so the purported assignment was void.
The Arbitrator held that the consent judgement consituted an assignment pursuant to s. 267.8(12) and that Coachman's motion was an invalid collateral attack on the order, and that Nordic could continue with the arbitration. Coach then filed an appeal.
Analysis:
For the reasons that follow, I find there was no assignment pursuant to s. 267.8(12) of the Act that allows The Nordic to pursue arbitration in Mr. D'Ettorre's name and that the motion by Coachman was not a collateral attacj on the consent order.
The legislative context of the SABS and the Act does not provide that a consent order constitutes a judicially authorized assignment for the purposes of the exception to the assignment ban. Coachman’s motion to defend its rights was therefore not a collateral attack on the order.
I agree with Smith J.’s analysis in Stokes v. Desjardins groupe d’assurances générales. Stokes dealt with subs. (9) of s. 267.8, which requires the plaintiff to hold collateral funds received after the trial of the tort action in trust for the tort insurer. The parties in the tort action in Stokes reached an agreement and settled without a trial. The plaintiff then started a first-party
action, and the tort insurer sought to apply subs. (9), meaning that any funds Mr. Stokes obtained in his first-party action would have to be held for Group Desjardins. However, Smith J. held that subs. (9) only applies where a plaintiff recovers damages after a trial of the action.
The requirement for there to be a trial of the tort action in which the court awards damages is identical in subs. (12). An assessment of damages by a court means that the parties do not know beforehand what damages will be awarded, so even in an ex parte hearing the plaintiff has to prove them. That is not what happened here, as the parties agreed to the damages and settled on them before going to court. By its very nature, a settlement is different from a full assessment of damages, as noted in Stokes.
It is also not necessary to interpret the consent order as an order made after the trial of the action as part of the goal of preventing double recovery.
The Arbitrator therefore erred in finding that the consent order qualified as an order made under section 267.8 of the Act and thus qualified as an exception to the general ban on assignment under s. 65 of the SABS. The appeal is allowed, and the order is amended to show that The Nordic is precluded from proceeding in Mr. D’Ettorre’s name.
Expenses:
If the parties are unable to agree about expenses of this appeal, an expense hearing to determine the parties’ legal fees and disbursements may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
Coachman Insurance Company (Appellant)
Alex D'Ettorre (Respondent)
Published: July 28, 2010
Hearing Date: January 18, 2010
Nature of Appeal:
Coachman Insurance Company (CIC) appeals the Arbitrator's order that The Nordic Insurance Company of Canada (The Nordic) is not precluded from proceeding in the name of Mr. Alex D'Ettorre.
Background:
Mr. D'Ettorre was injured in a motor vehicle accident on November 7, 2001 in a collision between his pickup truck and a trackor-trailor. CIC insured him, and The Nordic insured the trackor-trailer. Mr. D'Ettorre received income replacement benefits under the SABS 1996 from Coachman until it ceased payment in October 2005. Mr. D'Ettorre sought their reinstatement in mediation and then in arbitration. Mr. D'Ettorre also commenced a third-party tort claim against The Nordic's insureds.
On August 22, 2008, Mr. D'Ettorre settled his tort action, entered into minutes of settlement with The Nordic and signed a release. The release included an assignment to the Nordic of his SABS claim against Coachman. The Nordic recieved a concent judgment dated September 5, 2008, which repeated the terms of the settlement and the assignment and dismissed the action.
The Nordic purported to pursue the arbitration proceeding in Mr. D'Ettorre's name pursuant to the assignment, despite the provision in s. 65(1) of the SABS that the assignment of the right to pursue an arbitration proceeding is void. Coachman moved to prevent The Nordic from proceeding, on the basis that there had been no trial but merely a consent order, so the purported assignment was void.
The Arbitrator held that the consent judgement consituted an assignment pursuant to s. 267.8(12) and that Coachman's motion was an invalid collateral attack on the order, and that Nordic could continue with the arbitration. Coach then filed an appeal.
Analysis:
For the reasons that follow, I find there was no assignment pursuant to s. 267.8(12) of the Act that allows The Nordic to pursue arbitration in Mr. D'Ettorre's name and that the motion by Coachman was not a collateral attacj on the consent order.
The legislative context of the SABS and the Act does not provide that a consent order constitutes a judicially authorized assignment for the purposes of the exception to the assignment ban. Coachman’s motion to defend its rights was therefore not a collateral attack on the order.
I agree with Smith J.’s analysis in Stokes v. Desjardins groupe d’assurances générales. Stokes dealt with subs. (9) of s. 267.8, which requires the plaintiff to hold collateral funds received after the trial of the tort action in trust for the tort insurer. The parties in the tort action in Stokes reached an agreement and settled without a trial. The plaintiff then started a first-party
action, and the tort insurer sought to apply subs. (9), meaning that any funds Mr. Stokes obtained in his first-party action would have to be held for Group Desjardins. However, Smith J. held that subs. (9) only applies where a plaintiff recovers damages after a trial of the action.
The requirement for there to be a trial of the tort action in which the court awards damages is identical in subs. (12). An assessment of damages by a court means that the parties do not know beforehand what damages will be awarded, so even in an ex parte hearing the plaintiff has to prove them. That is not what happened here, as the parties agreed to the damages and settled on them before going to court. By its very nature, a settlement is different from a full assessment of damages, as noted in Stokes.
It is also not necessary to interpret the consent order as an order made after the trial of the action as part of the goal of preventing double recovery.
The Arbitrator therefore erred in finding that the consent order qualified as an order made under section 267.8 of the Act and thus qualified as an exception to the general ban on assignment under s. 65 of the SABS. The appeal is allowed, and the order is amended to show that The Nordic is precluded from proceeding in Mr. D’Ettorre’s name.
Expenses:
If the parties are unable to agree about expenses of this appeal, an expense hearing to determine the parties’ legal fees and disbursements may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
Sunday, August 8, 2010
WSIAT website, June 1, 2010
Decision No. 877 10
- Experience rating (NEER)
- Negligence
- Transfer of costs (NEER)
The appellant employer was a placement agency. A worker of the appellant employer was injured while placed in temporary assignment. The Board determined that two other employers were responsible for the accident and that this employer was not responsible for any negligence.
The first other employer was a Schedule 1 employer, and the Board transferred 50% of the accident costs to the account of the first other employer. The second other employer was not registered with the board. The Board pursued an action against the second other employer but has not recovered any money. The appellant employer was not provided with any relief for the portion of the claim costs. The employer appealed the decision denying removal of the full costs of the claim from its account for NEEr purposes.
When the Board attributed negligence to the two other employers, it was not implicitly making a finding that no costs should be included in the appellant employer's cost records for NEER purposes. Section 84 of the WSIA provides for transfer costs, but it applies only to transfers between Schedule 1 employers, thus it did not apply to the second other employer.
Board policy provides for removal of costs only if and when the Board recovers from the second other employer, which has not happened yet. The appellent employerwas not entitled to removal of 100% of the costs of the claim. The appellant employer was not in a position to benefit effectively from this provision because it has already benefitted from the transfer of costs provision. The appeal was dismissed.
CanLII, Tembec Inc. v. Wilson., 2010 ONCA 504
Tembec Inc. v. Wilson
Gordon Wilson, Applicant (Respondent)
Tembec Inc., Defendant (Appellant)
August 3, 2010
Facts:
1. Mr. Wilson worked at Tembec since 1st July 1997. He worked as a general manager of operation at the Tembec's sawmill in Kapuskasing. In Nov. 2001, Mr. Wilson was promoted to rank of Director General mills Northern Ontario West, a position that entitles him to oversee the operation of sawmills located Tembec in Kapuskasing, Hearst and Opasatika.
2. In May 2003, Mr. Bastien, a vice-chairpersons of Tembec, became the direct supervisor of Mr. Wilson. Up to this point, Mr. Wilson had recieved very positive performance evaluations. Bastien by cons reduces overall efficiency rating of Mr. Wilson ensuring that it undergoes a reduction of premiums in the short term, as well, Mr. Bastien insists that Mr. Wilson learn French. Mr. Wilson resisted this pressure. In short, Mr. Bastien and Mr. Wilson do not get along.
Circumstances surrounding the dismissal:
3. The chain of events began towards the end of 2004. Tembec decided to close its sawmill in Opasatika and Mr. Wilson is the manage responsible for the accomplished under supervision of Mr. Bastien.
4. Following the closure, Tembec should provide some severance pay to its employees. The status of a worker, Paul Nadeau, was not clearly defined. Mr. Wilson recommended he was an employee and Mr. Bastien is of the opinion that Mr. Nadeau is a contractor. The letters to each employee of the mill are prepared for the signature of Mr. Bastien; Mr. Bastien refused to sign the letter to Mr. Nadeau.
5. Wilson and Guylaine Coulombe, a lawyer and employee of the Department of Human Resources, Tembec meet. Since the letter is in French, Ms. Coulombe helping Mr. Wilson to amend the letter Mr. Nadeau to treat differently from other employees. A few months later Mr. Bastian learned of a letter signed by him to Mr. Nadeau. Initally Mr. Wilson did not remember that he signed the name of Mr. Bastien on this letter but, after ascertained, Mr. Wilson admits that he forged the signature. Mr. Bastien to the matter to Tembec superiors, and on June 21, 2005, Mr. Wilson was dismissed without Tembec investigations about the facts of the case.
Conclusion of Trial Judge:
(a) Mr. Wilson did not attempt to conceal the fact that he had forged the signature of Mr. Bastein on the letter and did not try to convince Mr. Bastien that he had personally signed the letter.
(b) Mr. Wilson believed he was in the best interest of Tembec to grant Mr. Nadeau severance of employment. This belief was objectively reasonable in the light of the totality of the evidence.
(c) Mr. Wilson was concerned about a confrontation and the animosity that surrounded him, and believed that he was not in the best interest of Tembec's refusal to pay severance to Nadeau.
(d) Even if the conduct of Mr. Wilson proved dishonest and insubordinate, the imitation of the signature was an isolated act, and did not reveal a character so flawed that it would make Mr. Wilson untrustworthy. Misconduct was not fraudulent in nature deeply, and was therefore compatible with the maintenance of an employer-employee Tembec. Ultimately the greatest obstacle to this relationship was a clash of personalities and communication problems between Mr. Wilson and Mr. Bastien.
Provision:
6. For the foregoing reasons, we dismiss the appeal.
7. We order that the appellant pay the respondent 20,000.00 US dollars for the costs of the appeal.
Gordon Wilson, Applicant (Respondent)
Tembec Inc., Defendant (Appellant)
August 3, 2010
Facts:
1. Mr. Wilson worked at Tembec since 1st July 1997. He worked as a general manager of operation at the Tembec's sawmill in Kapuskasing. In Nov. 2001, Mr. Wilson was promoted to rank of Director General mills Northern Ontario West, a position that entitles him to oversee the operation of sawmills located Tembec in Kapuskasing, Hearst and Opasatika.
2. In May 2003, Mr. Bastien, a vice-chairpersons of Tembec, became the direct supervisor of Mr. Wilson. Up to this point, Mr. Wilson had recieved very positive performance evaluations. Bastien by cons reduces overall efficiency rating of Mr. Wilson ensuring that it undergoes a reduction of premiums in the short term, as well, Mr. Bastien insists that Mr. Wilson learn French. Mr. Wilson resisted this pressure. In short, Mr. Bastien and Mr. Wilson do not get along.
Circumstances surrounding the dismissal:
3. The chain of events began towards the end of 2004. Tembec decided to close its sawmill in Opasatika and Mr. Wilson is the manage responsible for the accomplished under supervision of Mr. Bastien.
4. Following the closure, Tembec should provide some severance pay to its employees. The status of a worker, Paul Nadeau, was not clearly defined. Mr. Wilson recommended he was an employee and Mr. Bastien is of the opinion that Mr. Nadeau is a contractor. The letters to each employee of the mill are prepared for the signature of Mr. Bastien; Mr. Bastien refused to sign the letter to Mr. Nadeau.
5. Wilson and Guylaine Coulombe, a lawyer and employee of the Department of Human Resources, Tembec meet. Since the letter is in French, Ms. Coulombe helping Mr. Wilson to amend the letter Mr. Nadeau to treat differently from other employees. A few months later Mr. Bastian learned of a letter signed by him to Mr. Nadeau. Initally Mr. Wilson did not remember that he signed the name of Mr. Bastien on this letter but, after ascertained, Mr. Wilson admits that he forged the signature. Mr. Bastien to the matter to Tembec superiors, and on June 21, 2005, Mr. Wilson was dismissed without Tembec investigations about the facts of the case.
Conclusion of Trial Judge:
(a) Mr. Wilson did not attempt to conceal the fact that he had forged the signature of Mr. Bastein on the letter and did not try to convince Mr. Bastien that he had personally signed the letter.
(b) Mr. Wilson believed he was in the best interest of Tembec to grant Mr. Nadeau severance of employment. This belief was objectively reasonable in the light of the totality of the evidence.
(c) Mr. Wilson was concerned about a confrontation and the animosity that surrounded him, and believed that he was not in the best interest of Tembec's refusal to pay severance to Nadeau.
(d) Even if the conduct of Mr. Wilson proved dishonest and insubordinate, the imitation of the signature was an isolated act, and did not reveal a character so flawed that it would make Mr. Wilson untrustworthy. Misconduct was not fraudulent in nature deeply, and was therefore compatible with the maintenance of an employer-employee Tembec. Ultimately the greatest obstacle to this relationship was a clash of personalities and communication problems between Mr. Wilson and Mr. Bastien.
Provision:
6. For the foregoing reasons, we dismiss the appeal.
7. We order that the appellant pay the respondent 20,000.00 US dollars for the costs of the appeal.
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