Law Times

Law Times • February 2, 2015 Page 15 www.lawtimesnews.com Insurance AUTOMOBILE INSURANCE Clear policy rationale for denying recovery to drivers not insured Plaintiff was injured in mo- tor vehicle accident caused by defendants. Plaintiff asserted he had memory loss due to ac- cident and his proof of insur- ance was burned when vehicle ignited. Plaintiff had recently purchased vehicle from another individual, but said he must have had insurance because he did not receive ticket for driving without when he was stopped weeks earlier and ticketed for not having licence plate sticker. Plaintiff could not recall details of purchase or identity of his insurer. Defendant commis- sioned insurance summary that did not list plaintiff as insured at time of accident. Plaintiff was unable to access statutory accident benefits following ac- cident because he could not find insurance information, and his vehicle had not yet been registered and licence plate was not assigned to vehicle. Motion by defendants to summarily dismiss action for damages on basis plaintiff was barred from recovery because he did not have automobile insurance at time. Motion granted. Defen- dants established prima facie case plaintiff was not insured at time of accident. Plaintiff had recently purchased vehicle and clearly had not gotten around to formalities. Plaintiff did not provide any evidence to sup- port claim he had insurance, and saying proof of insurance was burned in fire not answer, as there would be other records. Officers' notes about vehicle stop weeks earlier were vague and not determinative, since plaintiff was not charged with using unauthorized licence plates, even though he clearly was doing so. It was telling that plaintiff could not apply for statutory accident benefits be- cause he lacked proof of insur- ance, and that he did not defend charge for driving without in- surance issued after accident. There was clear policy rationale for denying recovery to drivers not insured. Belbas v. Greyhound Canada Transportation ULC (Oct. 1, 2014, ont. s.c.J., H.M. Pierce R.S.J., File No. Thunder Bay CV-11-280) 246 A.C.W.S. (3d) 173. Limitations CONTRACT Limitation period began to run when non-paying customer placed in licence plate denial In 1999, plaintiff entered agree- ment to operate toll highway on behalf of provincial gov- ernment. Since highway open access, plaintiff recorded use through cameras recording licence plate numbers and scanners identifying presence of transponders, and issued invoices to registered own- ers or transponder lessees on monthly basis. It was permitted to enforce payment of invoices through legal proceedings or licence plate denial. In or about January 2005, vehicles regis- tered to defendant began using highway. Invoices issued to de- fendant not paid in timely fash- ion. In March 2010, defendant leased transponder to record highway use by personal vehi- cle. Lease agreement provided for limitation period of 15 years. As result of unpaid invoices, defendant denied licence plate renewal on three occasions. He did not renew vehicle permit af- ter it expired in December 2011. Defendant continued to use highway but made no payment for tolls after December 2010. In June 2013, plaintiff commenced action to collect some 2,914 un- paid tolls. Defendant claimed that portion of action concern- ing invoices issued between March 2010 and May 2011 stat- ute-barred as commenced more than two years after invoices is- sued. Order accordingly. Limi- tations Act (Ont.), provided for limitation period of two years except in certain circumstances which did not apply here. Noth- ing prescribed separate limita- tion regime for toll debt. While transponder lease agreement provided for limitation period of 15 years, plaintiff precluded by provisions of Consumer Pro- tection Act (Ont.), from relying on provision when transponder leased for personal as opposed to business use. Limitation pe- riod began to run not when in- voice issued but when non-pay- ing customer placed in licence plate denial. 407 ETR Concession Co. v. Day (Nov. 4, 2014, ont. s.c.J., Ed- wards J., File No. Newmarket CV-13-115006) 246 A.C.W.S. (3d) 182. Municipal Law ACTIONS AGAINST MUNICIPALIT Y Township relied on statements contained in declaration Action arose out of motor ve- hicle accident that occurred on June 19, 2008. Injured was passenger in vehicle driven by driver which was rear-ended at intersection by taxi driven by defendant. Injured and driver each brought actions against defendant. Defendant's insur- ance only had third party li- ability limit of $200,000. On basis that defendant had in- sufficient insurance, plain- tiffs added driver's insurer as defendant. Claims were later amended to add township as defendant. Insurer added town- ship as third party in both ac- tions. Claims against township were commenced on basis that township failed to enforce its taxi licensing bylaw. Specifi- cally, insurer alleged that, at all material times, township had positive obligation to ensure that taxi companies, licensed to operate in township's juris- diction, carried insurance cov- erage with third party liability limits of at least $1,000,000, as required under its municipal bylaw. It was ordered that trial of liability of township would proceed as modified summary trial of third party claim with outcome binding on parties in main actions. Third party claim dismissed. While there was duty of care, township did not breach its duty of care. Owner of taxi firm had filed false dec- laration with township about liability insurance limits he had obtained. Township relied on statements contained in decla- ration. Township did not have to go further than it did in or- der to comply with its duty of care. Township did not breach its duty and was not liable to insurer. Vlanich v. Typhair (Oct. 27, 2014, ont. s.c.J., Stanley Kershman J., File No. Ottawa 10-48784) 246 A.C.W.S. (3d) 188. Professions ACCOUNTANTS Applicant entitled to reimbursement based on docketed time, not invoices Applicant was auditing firm that provided services for re- spondent company under let- ters executed, which contained indemnification provisions. Respondent's regulator investi- gated respondent and applicant received requests from Regula- tor, before and after it ceased to act for applicant, for production and was required to cooperate. Applicant claimed it incurred significant legal and profession- al fees as a result, but respon- dent had declined its request for payment. Application for dec- laration respondent was obli- gated to indemnify applicant in accordance with terms of audit engagements, and order requir- ing respondent to pay legal fees and applicant's fees incurred as a result of investigation. Ap- plication granted in part. Plain meaning of indemnification provision required respondent to indemnify applicant for costs and expenses, including legal fees, incurred in connection with audit engagements, un- less caused by applicant's neg- ligence, which was not alleged. Legal fees were incurred as a result of investigation by regu- lator, which fell under broad, ambiguous indemnity provi- sions, and fit harmoniously with working papers, which also plainly stated respondent was required to pay applicant for own time incurred when required by government regu- lation or other legal process. Declaration made. Dockets pro- vided by applicant's solicitors were clear, but applicant's own fees were not as clear as docket conf licted with invoices. Appli- cant entitled to reimbursement based on docketed time, not invoices, as dockets provided itemized accounting with lower hourly rates in accordance with applicant's working fees. No reimbursement provided for entries without description of services provided. MNP LLP v. Migao Corp. (Aug. 25, 2014, ont. s.c.J., T. McE- wen J., File No. CV-13-487390) 246 A.C.W.S. (3d) 194. ONTARIO CRIMINAL DECISIONS Charter of Rights ARBITRARY DETENTION OR IMPRISONMENT Questions posed and answers received played no causal role in arrest Two accused, jointly charged with possession of cocaine for purpose of trafficking, applied for exclusion of evidence. One accused was also charged with possession of proceeds of crime. Accused were travelling in rent- ed KIA motor vehicle and were stopped for speeding. Dur- ing stop, two officers detected smell of marijuana. Questions about smell were asked by po- lice and answers were provided by accused. One officer noticed plastic bag protruding from the pants pocket of passenger and asked about it. That accused was asked to step out of vehicle and retrieved from that pocket was small amount of marijuana after which accused was ar- rested for simple possession of marijuana. Driver remained in KIA and was investigated for speeding pursuant to Highway Traffic Act (Ont.) (HTA). That accused was asked to step out of KIA so that it could be searched incidental to arrest of passen- ger. Found beneath passenger seat of KIA was shopping bag containing significant amount of crack cocaine. Thereafter, both accused were charged with possession of cocaine for pur- pose of trafficking. Application dismissed. Police proceeded to stop KIA for proper regula- tory purposes. Fact that they also had criminal investigative interests which, standing alone would not have justified stop, did not give rise to arbitrary detention. Police smelled mari- juana, investigated and made observations and they arrested passenger. Arrest occurred within very short period of time on grounds that were developed independent of anything either of accused said in their ex- change with police. Questions posed and answers received played no causal role in arrest. Grounds existed independent of this breach due to smell of marijuana and observations of baggie. Court satisfied that both officers had enough experience to identify smell of fresh mari- juana in KIA that night; their actions on videotape supported such finding. Question asked ("what's that") by officer was more of rhetorical one based on his smell of marijuana, his questions about marijuana and his use of f lashlight to direct at- tention of those present to bag- gie. Officer persisted in asking "what is that?" two more times because he remained of view that it was marijuana in that pocket. Court accepted that it was intention of police to con- duct investigation for speeding pursuant to HTA. That changed when they smelled marijuana and observed baggie. R. v. Cousins (Oct. 7, 2014, ont. s.c.J., Kelly J., File No. CR/14/900000/550000) 116 W.C.B. (2d) 585. Contempt of Court APPEAL Fine excessive and amounted to double punishment Accused appeal finding of con- tempt by court in contentious protracted estate dispute. Ac- cused was ordered to pay out moneys but instead filed mo- tion for passing of accounts in different venue. Judge found actions of accused amounted to contempt, prohibited from taking any further actions in- volving parties, ordered him to pay $10,000 fine and sentenced him to three days in jail. Appeal allowed in part with fine vacat- ed and prohibition modified. Judge provided valid reasons for holding accused in contempt given his past actions in hold- ing up estate. Fine was excessive and amounted to double pun- ishment given accused was also sentenced to imprisonment. Prohibition order went too far as it barred accused from all fu- ture actions and not just those involving estate matters. Susin v. Susin (Oct. 29, 2014, ont. c.a., Alexandra Hoy A.C.J.O., K. Feldman J.A., and R.A. Blair J.A., File No. CA C58399) 116 W.C.B. (2d) 597. Evidence ADMISSIBILIT Y Ample circumstantial evidence tying accused to murder Accused sought directed ver- dict and exclusion of eyeglasses relating to charge of first degree murder. Accused was alleged to hire perpetrator to kill vic- tim as there were BBM chats with him about planning to rob victim and use knife weapon. Victim was stabbed 29 times in vicious attack and accused found on scene with blood on his shoes and clothing even though witnesses testified he never approached body and two men were initially seen running from scene. Eyeglasses of victim were found in garage belonging to accused who argued that they should be excluded because of- ficer initially testified victim was wearing glasses but later changed his testimony. Appli- cations dismissed. There was ample circumstantial evidence tying accused to murder given blood on his clothing and BBM chats discussing potential of- fence. Admission of eyeglasses did not impact on jury's ability to assess reliability and credibil- ity of officer as accused was free to suggest that officer's explana- tion for contradiction should be rejected and was complete fab- rication. R. v. Nurse (Sep. 17, 2014, ont. s.c.J.) 116 W.C.B. (2d) 676. LT CASELAW

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