Law Times

April 18, 2016

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Page 2 April 18, 2016 • lAw Times drinking a considerable amount of alco- hol, Caughy was playing tag with one of his daughters, when he tripped over one of the motorcycles and crashed into his truck, suf- fering serious spinal cord injuries. When Caughy applied for accident be- neifts two weeks later, they were denied by Economical, which decided they didn't meet the definition under s. 3(1) of the SABS, which states that an accident is "an incident in which the use or operation of an automobile directly causes an impair- ment." In its appeal, Economical argued the lower court judge had erred in his appli- cation of the traditional two-part test for an accident, which includes a purpose test and a causation test. The insurer claimed the purpose element could not be met without an active use of the vehicle, but Ontario Appeal Court Justice William Hourigan disagreed. "This argument is misconceived. There is no active use component in the purpose test. The sole question for determination un- der that test is whether the incident in issue resulted 'from the ordinary and well-known activities to which automobiles are put,'" he wrote on behalf of a unanimous three-judge panel. That question, too, was answered in the affirmative by Hourigan: "A vehicle is designed to be parked. In- deed, it is safe to say that most vehicles are parked most of the time. I would conclude, therefore, that parking a vehicle is an ordi- nary and well-known activity to which ve- hicles are put," he wrote. David Bertschi, an Ottawa lawyer who heads the Canadian Defence Lawyers, a group of counsel who act for insurers, says the case was a tough one, but he believes the decision is consistent with previous judg- ments of the appeal court. "Some have tried to read in an active- use requirement, but it is clearly not the case. If the legislature had wanted that to be so, they would have put it in," Bertschi says. "If the industry and legislators want in the future to make it that a vehicle has to be running in order for accident ben- efits to be available, then they can do so." Robert Deutschmann, a personal injury lawyer with Kitchener, Ont.-based firm Pa- quette Travers and Deutschmann, says it's part of a plaintiff counsel's job to try to "ex- pand the opportunities for clients to get ac- cess to treatment" where the legislation offers limited guidance on definitions, such as the word "accident" in this case. According to Gilby, the timing of the acci- dent could have been worse for Caughy, since from June 1, the total combined attendant care and medical and rehabilitation services for catastrophically injured victims will be slashed to a new cap of $1 million from $2 million at present. Injured parties have also lost their right to sue in court for accident benefits since April 1, with all SABS matters required to go to arbitration at the province's Licence Appeal Tribunal. "That's a huge issue for me. It's bizarre that it will now be decided by arbitration," Gilby says. "It's one thing for them to de- cide if someone will get a $3,000 treatment plan, but it's an entirely different matter for them to decide if someone even gets an en- titlement to any benefit whatsoever." LT acquitted the officer in January of sec- ond-degree murder and convicted him of attempted murder. The application filed by Forcillo to strike down the man- datory minimums states that they breach the Charter because they are overbroad and disproportionate, as well as cruel and unusual in terms of the required punish- ment. The provision could also result in unfair sentences being imposed against homeowners using excessive force against an intruder, or a victim of domestic vio- lence who shoots her abusive husband a second time, mistakenly thinking he is about to rise and attack her, say Forcil- lo's lawyers in the written submissions. "These reasonably foreseeable cases in- volving civilians would no doubt result in a grossly disproportionate sentence," argues Brauti, a partner at Brauti Thorn- ing Zibarras LLP in Toronto. A Toronto defence lawyer who was part of a successful Supreme Court chal- lenge to the mandatory minimums for illegal gun possession agrees there is an "overbreadth problem" with the attempt- ed murder sentencing provisions. Michael Dineen says the section also captures law- ful gun owners who make a mistake while acting in self-defence. "It seems unlikely Parliament meant for this sentence to apply to licensed gun owners who are lawfully using their guns at the time they end up committing an offence in the course of a situation not of their own making," says Dineen, a lawyer at Dawe Dineen in Toronto. Faisal Mirza, a defence lawyer who act- ed for an intervener group in the handgun possession case at the Supreme Court, says there is a "high threshold" to show that a mandatory minimum is cruel and unusual. "The end game is that they must con- vince the trial judge that he is not going to be able to impose a proportionate sentence," says Mirza, a lawyer at Mirza Kwok in Toronto. The Supreme Court upheld a four- year minimum for manslaughter in a 2008 decision involving an RCMP officer in Alberta who fatally shot a man during a jail cell struggle. The circumstances of the Forcillo case, however, are unprecedented, his lawyers say. A minimum punishment of either four or five years in prison would violate s. 12 of the Charter based on what they argue is the low "moral culpability" of the officer. The acquittal on the second- degree murder charge means Forcillo was "fully justified" in using lethal force against Yatim in the first volley of shots. "Intending to cause the death of one's attacker is not morally wrong," writes Brauti. The second volley, while found by the jury to be unlawful, "did not interfere with Mr. Yatim's health or comfort in any way. It did not cause him any pain. The gravity of this offence is as close to nil as one can imagine an attempted murder ever being," the defence lawyer adds. If the mandatory minimum is found to be unconstitutional, Forcillo is also asking the court to strike down restric- tions that would prohibit the imposition of a sentence of house arrest, for his at- tempted murder conviction. LT NEWS Motorcycle case consistent Forcillo case unprecedented? Continued from page 1 Continued from page 1 A professional grade platform that allows you to A professional grade platform that allows you to interact with your eBooks in entirely new ways. interact with your eBooks in entirely new ways. 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