Law Times

Law Times • January 18, 2016 Page 3 www.lawtimesnews.com Tort principles don't apply Ontario appeal court restores arbitrator's fault ruling BY NEIL ETIENNE Law Times I n reinstating an arbitrator's original award and over- turning a Superior Court of Justice order for a 50-50 fault-split, the Court of Appeal of Ontario has reaffirmed the Fault Determination Rules chart used in insurance matters should override any application of the ordinary rules of tort law. In State Farm Mutual Au- tomobile Insurance Company v. Aviva Canada Inc., the Court of Appeal overturned a Superior Court of Justice order that had found two drivers equally re- sponsible for a 2009 car-motor- cycle accident in Richmond Hill, Ont. that involved no physical collision between the two vehi- cles. Through its interpretation of Rule 5(1) of the Fault Determi- nation Rules, the Appeal Court placed the full fault back on the driver of the car, Eric Basciano. He was attempting to make a left-hand turn off of northbound Yonge Street when he turned into the path of Ali Shalforoushzadeh on his southbound motorcycle. Shalforoushzadeh was success- ful in attempting to avoid a col- lision, but he ended up skidding through the intersection and suf- fered an injury. In a decision written by Ap- peal Court Justice Eileen Gil- lese, with justices Gloria Epstein and Lois Roberts agreeing, the court ruled that because Rule 5(1) states "if an accident is not described in any of these [FDR] rules, the degree of fault of the insured shall be determined in accordance with the ordinary rules of law" and that when ap- proached as a matter of statutory interpretation "it becomes clear that the word 'tort' should not be read into rule 5(1)." Eric Grossman, partner at Za- rek Taylor Grossman Hanrahan LLP, says the ruling reaffirms that it is the chart that governs the determination of fault "as op- posed to the application of the ordinary rules of tort law." "The loss-transfer regulation makes clear that a chart known as the Fault Determination Rules is to govern the attribution of fault in these loss-transfer cases," he says. "The Court of Appeal has further affirmed that def- erence is owed to the decision- maker at first instance on issues of credibility." During the near-collision, Shalforoushzadeh was south- bound on his motorcycle in heavy traffic when Basciano, who was northbound, attempted to make a left-hand turn. Basciano was waved through the intersection by another driver who was stopped in the southbound passing lanes. Basciano did not see Shalforoush- zadeh approaching the intersec- tion when he turned into the mo- torcycle's path. Shalforoushzadeh swerved and lost control of the bike. Injured, he applied for ben- efits to State Farm, which in turn paid those and sought indemni- fication from Basciano's provider, Aviva, through arbitration. The arbitrator determined Basciano was 100 per cent at fault based on an analysis of loss-transfer provi- sions, which place 100-per-cent fault on the part of a left-turning vehicle. Aviva successfully ap- pealed the finding to the Superior Court, which ordered a 50-per- cent split of responsibility between the parties based on a finding that Shalforoushzadeh was not there to have been seen by Basciano due to the heavy traffic blocking views and that Shalforoushzadeh failed to be alert as he approached the intersection. The Superior Court also ruled that the arbitrator had erred in law in disregarding cars that were stopped to the motor- cycle driver's left as he approached the intersection and failed to attri- bute contributory negligence. On appeal, Justice Gillese, however, agreed with State Farm's assertion that the Superi- or Court erred in finding Shalfo- roushzadeh failed to be alert and supported the arbitrator, who had the advantage of seeing and hearing testimony first-hand. The Appeal Court also held the arbitrator properly interpreted Rule 5(1) of the FDR in that it must be informed by Rule 3, be- cause Rule 3 requires the degree of fault to be determined without reference to the circumstances in which the incident occurs. "The meaning to be given to the 'ordinary rules of law' in rule 5(1) of the FDRs is a matter of statutory interpretation. I make this seemingly obvious point be- cause the decisions relied on by Aviva have not approached the matter in that fashion. Instead, those decisions are based on the assumption that the words "the ordinary rules of law" in rule 5(1) mean 'the ordinary rules of tort law,'" Justice Gillese wrote. "I pause to note that it would have been a simple matter for the legislature to have included the word 'tort' in the quoted words in rule 5(1), had that been its in- tention. In any event, when the meaning of the quoted words is approached as a matter of statu- tory interpretation, it becomes clear that the word 'tort' should not be read into rule 5(1)." Grossman says the decision is a reminder to lawyers that it is much harder to overturn find- ings of fact made at first instance and that deference is owed on appeal of such findings. "More importantly, it is a re- minder that the ordinary rules of law can only be applied in the context of the Fault Determina- tion Rules only in limited cir- cumstances, and that there will most certainly be cases where factually, the application of the FDRs will depart from the ordi- nary application of liability in a tort context," Grossman says. Associate lawyer Shannon Gaudet of Lerners LLP says it's a case that should change how insurers deal with loss transfer going forward. "It might be an indication by the court to insur- ers that we shouldn't be focused on tort analysis." LT NEWS Eric Grossman says the decision is a reminder that it is harder to overturn find- ings of fact made at first instance. Start with Practical Law Canada – Personal Injury Litigation. Practical Law Canada – Personal Injury Litigation offers you continuously maintained, up-to-date resources that contain the legal know-how that personal injury and insurance defence lawyers need to practise more efficiently, improve client service and never miss a step. Our lawyer-editors create and maintain practical resources so you don't have to, allowing you to save time with straightforward, up-to-date resources such as: • Summary Judgment Motion Practice Note • How to Bring a Motion Practice Note Sign up for a FREE TRIAL now at practicallaw.ca BEGINNING AT SQUARE ONE IS FINE UNLESS YOU NEED TO PREPARE A SUMMARY JUDGMENT MOTION. 00229MS-A52248 Untitled-3 1 2016-01-06 9:51 AM

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