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Law Times • may 4, 2009 Lawyer predicts bar will welcome the clarity Becamon provides FOCUS Toronto's Bell, Temple, pleaded the condition in support of Wawanesa's refusal to defend or indemnify Becamon. Donald Ross and Heather Continued from page 9 Gray, a partner and associate, respectively, at Gowling Lafl eur Henderson LLP's Toronto of- fi ce, represented Becamon. Th ey argued that their client had not breached the statutory condition because the accident did not oc- cur on a highway, and therefore the HTA did not apply. As it turned out, Becamon private property of the various store owners," he wrote. Finally, Cormack maintained the that failed to strike a proper balance between the "authorized by law" condition in the policy and the legislature's intent to promote public safety through the gradu- ated licensing scheme. "Th e law should not be inter- preted in a way where a driver trial judge's decision can drive in [on Wilson Avenue] and out [the strip mall parking lot] course of the same trip," Cor- mack wrote in his factum. Again the court disagreed with of coverage through the the insurer. "Th e legislature has struck the balance explicitly — the graduated licensing scheme applied to the operation of a motor vehicle on a 'highway,'" MacPherson concluded. "In- deed, not surprisingly, the en- tire HTA applies to what its title foreshadows, highways." Gray says the bar will wel- come the clarity that Becamon provides. "Th e amendment was the one niggling point for potential disputes about what 'highway' meant in these types of cases," she said. "Now that's gone." LT appeared to have precedent on her side. "Previous jurisprudence in the Court of Appeal and the Supreme Court of Canada had pretty well established that a parking lot of this kind was not a highway," Gray says. Th e diffi culty was that the Heather Gray argued her client had not breached the statu- tory condition because the acci- dent didn't occur on a highway, and therefore the HTA did not apply. previous jurisprudence predated the amendment that added the words "any part of which." Th e Court of Appeal's Gill v. Elwood was decided in 1970 and involved a small mall with an en- trance, exit, and parking spaces. Th e court ruled that minute anal- ysis of the uses made of diff erent parts of a property constituted an improper approach to determin- ing whether the property was a highway. Rather, the premises had to be viewed as a whole and their paramount use established. Th e Supreme Court's decision, R. v. Mansour, came in 1979. "[Th e court concludes] that the term 'highway' in its ordi- nary and popular sense and as il- lustrated by the words employed [in the HTA] does not embrace the concept of a parking lot, and particularly, a parking lot adja- cent to an apartment building, and presumably one which was established primarily for the pro- vision of parking to its inhabit- ants," the court wrote. predated the amendment, Cor- mack cited Sked v. Henry, a 1991 decision in which the high court ruled that the parking lot of a school was open to the public and therefore a highway. "Th is particular public colle- After noting that both cases giate parking lot is not the same as the private apartment parking lot considered by the Supreme Court in R. v. Mansour, or the shopping plaza parking lot con- sidered by the Court of Appeal in the pre-amendment case of Gill v. Elwood," the trial judge wrote. But as Justice James MacPher- son, writing for a unanimous bench composed also of justices John Laskin and Robert Arm- strong, saw it, Sked v. Henry did not mean that Gill and Mansour were no longer good law. Indeed, the trial judge in Becamon had been correct in concluding that the defendant was not on a high- way when the accident occurred. "All of the locations that con- stitute a 'highway' according to the defi nition found in the HTA are qualifi ed by the adjectival phrase 'common and public,'" MacPherson wrote. "Th ese words govern the analysis, whether the location is being considered in its entirety or in part. In the present case, the evidence was clear; al- though the parking lot was used by some drivers as a shortcut, both the intended use and actual use were overwhelmingly as a parking area for customers." Cormack also argued that the public had acquired prescrip- tive rights to the parking lot in the strip mall, thereby making it a highway. But MacPherson brushed away that submission, concluding that the evidence had "not come close to meeting" the high threshold for establish- ing a prescriptive right. "I agree with the trial judge's analysis and conclusion that the strip mall parking lot was the Untitled-3 1 Visit our web site and save 20% May Specials Addressing the Jury: Achieving Fair Verdicts in Personal Injury Cases, Second Edition Roger G. Oatley The Oatley-McLeish Guide to Personal Injury Practice in Motor Vehicle Cases Roger G. Oatley, John McLeish and contributing authors Editor: The Honourable Mr. Justice Ted Matlow , Superior Court of Justice (Ontario) Personal Injury Litigation: Guidance from Health Care Professionals Personal Injury: A Medico-Legal Guide to the Spine and Limbs, Second Edition Dr. Darrell J. Ogilvie-Harris and Dr. Geoffrey J. Lloyd 4/14/09 9:00:22 AM Unmasking the mystery. PAGE 13 Medical malpractice litigation is one of the most difficult and challenging areas of law. 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