Law Times

Law Times • November 12, 2018 Page 13 www.lawtimesnews.com its application to the facts of this case," they added. Howard Borlack, a civil liti- gator and founding partner at McCague Borlack LLP in To- ronto, says the majority looked at the dispute from a practical perspective. "What they latched on to was the intentions of the parties. The insured person took out a policy from someone else," says Borlack. "In a slightly different fact situation, the results could be different. But as long as there is a reasonable interpretation, def- erence has to be paid to arbitra- tors," he adds. The dissent by Justice Gladys Pardu focused more on broader policy concerns, Borlack says. Pardu agreed with the Supe- rior Court that the findings of the arbitrator should not stand. "The decision of the arbitrator was unreasonable because he failed to give effect to the statu- tory language, failed to consider legislative purposes, and adopt- ed an interpretation that has no logical connection to the statu- tory language," Pardu stated. "Interpreting s. 236(5) as re- quiring that a contract of insur- ance remain in force until there is compliance with the notice requirements is consistent with the objective of providing some certainty as to when a policy is in force. It is also consistent with that objective to make the in- surer responsible for compliance with the statutory conditions for non-renewal or its termination of a policy, as an insurer has con- trol over the steps required to initiate and complete that pro- cess," she wrote. She also said that "the arbi- trator failed to give effect to the plain language of the section." "He did not consider the purposes of the legislation, and did not consider the effects on persons who were not parties to the contract. His application of the notion of repudiation was f lawed, as there was no commu- nication of acceptance of repu- diation by another contracting party," she said. Grossman says he under- stands the policy issues put for- ward in the dissenting ruling, but he says the facts of this case favour the insurer. "It would be closer to the line if the accident were days or even weeks later" after the defective notice of non-renewal was sent, he says. As well, Grossman says he believes his client did comply with the non-renewal provi- sions and will put that argument forward if leave is granted by the Supreme Court. LT The accident in Smith was described as a "horrendous two car collision" by the Court of Appeal panel hearing the case. Dawn Safranyos, the driver of a vehicle with four children inside, failed to yield the right of way on a through highway. Her vehicle was t-boned by the driver of an- other vehicle travelling beyond the speed limit who had con- sumed alcohol. The trial judge found Safran- yos 50-per-cent liable. The other 50 per cent of liability was ap- portioned equally to the city and to the driver of the other vehicle. The Court of Appeal, in a de- cision written by Justice David Paciocco, upheld the finding of liability against the city of Ham- ilton for non-repair as set out in the Municipal Act. The stop sign for westbound vehicles was located 10 metres before the intersection with the highway. A stop line that had ex- isted at the intersection previous- ly was removed in a "shave and pave" and had not been repaint- ed at the time of the accident. "The trial judge did not mis- understand the law. The gauge she used was the proper one of whether the road was in a suffi- cient state of repair to be safe for drivers exercising ordinary or reasonable care," wrote Pacioc- co, with Chief Justice George Strathy and Justice Lois Rob- erts concurring. "Whether Ms. Safranyos was 'mistaken' as the trial judge said here, or negligent as the trial judge said elsewhere, does not matter to Hamilton's non-repair liability. Ms. San- franyos's negligence only goes to the apportionment of liability," Paciocco said. The Court of Appeal also re- jected the city's argument that the accident was solely a result of a driver negligently entering the intersection. "The trial judge had ample evidence that this intersection was confusing, even to drivers of ordinary care. She was entitled, in the circumstances, to accept Ms. Safranyos's evidence that had there been a stop line she would have stopped there, just as she had at the stop sign," Paciocco wrote. Wray suggests the rulings could have broad implications for municipalities. "How are municipalities sup- posed to interpret the expecta- tions of the reasonable driver in maintenance and road design?" he says. Claire Wilkinson, who acted for the injured children, says that while each case may be fact specific, the Court of Appeal is sending a message. "Municipalities would be ad- vised to ensure that stop lines are clearly painted at all inter- sections where sightlines are obscured, particularly when the stop sign is set back from the in- tersection. There will be circum- stances, such as in the Smith case, where the court finds that the design or maintenance of an intersection was a hazard to all drivers — including negligent drivers and reasonable drivers," says Wilkinson, a lawyer at Mar- tin & Hillyer Associates in Burl- ington, Ont. and immediate past president of the Ontario Trial Lawyers Association. LT Continued from page 10 Continued from page 11 COA sends message Dissent on broader policy concerns FOCUS George Wray says a recent pair of Court of Appeal rulings could have broad implica- tions for municipalities. Howard Borlack says the majority of jus- tices in a recent Ontario Court of Appeal ruling looked at the dispute from a practi- cal perspective. In-class and online programs recognized by Law Societies Executive Education to Navigate the Canadian Legal Landscape Visit Lexpert.ca to find out more (YHU\WLPH\RXUHIHUDFOLHQWWRRXUODZßUP you are putting your reputation on the line. ROBERT BEN | LEONARD KUNKA | ALAN FARRER Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. With a group of 30 civil litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral, and look forward to creating a solid relationship with you that will benefit the clients we serve. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com IT IS ALL ABOUT TRUST WELL PLACED. Untitled-6 1 2018-11-06 3:10 PM

• Cover