Law Times

Law Times • January 8, 2018 Page 13 www.lawtimesnews.com "The court decided appro- priately based on what previous precedent had set, and what I hope that means for the future is that the courts will continue to follow the precedent set, and this case is just one in the line of several where a wavier does not necessarily invalidate a claim." Douglas Treilhard, an asso- ciate with Buset & Partners LLP in Thunder Bay, who acted for the defendant in this case, says that it was emblematic of the jurisprudence on waivers. Treilhard notes that the Su- preme Court of Canada says that there aren't supposed to be special standards for exclusion clauses, and that they should be interpreted according to the normal techniques for deter- mining the intentions of the parties in accordance with the plain meaning of their words. "When you look at lower court decisions where those principles have to be put into effect, it's hard to avoid the con- clusion that lower courts do in fact apply different standards to the interpretation of waivers and make it extraordinarily dif- ficult for them to be enforced as against other types of contrac- tual terms," says Treilhard. He says that as a litigator who represents defendants, he won- ders whether this trend of lower court jurisprudence means that it may be better to put the mat- ter to a jury in a trial rather than trying to dispose of it at sum- mary judgment. In a jury trial, a judge would have to explain the law accord- ing to the decision from the Supreme Court of Canada in Tercon Contractors Ltd. v. British Columbia (Transpor- tation and Highways), 2010 SCC 4, which would have the jury rely on the common-sense interpretation of the words on the page. "I think that the dynamic could be quite different in that scenario," says Treilhard. "As a defence lawyer, I think that would bear further thought on the next waiver case that comes along." Crowe says that business owners will likely want to revisit the language in their waivers to be a little clearer about the risks that the person signing it would be assuming. "If you have more restrictive waivers or waivers with more particular language, perhaps courts might be more receptive to things like that, but the case law on it is hit or miss about what kind of waivers are en- forceable and what aren't," says Crowe. Treilhard notes that while he doesn't draft waivers, "this decision suggests that law- yers should be drafting them," though that may lead to longer and more complex forms be- cause they're being written for a judge. "The ironic consequence of that is that they are probably far less understandable to the par- ties using them in a particular transaction," says Treilhard. LT "At the end of the day, it's not that they didn't agree with what I was saying, but they didn't address it in that way," says Rouben. He adds that he feels the trial judge overemphasized the fact that Wilmot was a lower-tier municipality, given that all of the municipalities in the Wa- terloo region had all signed on to a region-wide agreement as to the standards that would be applied. "In those circumstances, we didn't think that the distinction between upper tier and lower tier was as significant," says Rouben. Christina Polano, partner with Thomas Gold Pettingill LLP in Toronto, says that the decision was the third Court of Appeal decision in 2017 deal- ing with municipal mainte- nance standards, the previous two being Belanger v. Sudbury (Regional Municipality), 2017 ONCA 428 and Lloyd v. Bush, 2017 ONCA 252. In Belanger, the court found that the municipality was li- able for failing to maintain the roads in the proper state of re- pair, while in Lloyd, the court ordered a new trial after setting aside the issue of liability. Polano noted that in House, the focus on the lower standards for rural areas, where a class-3 road was at issue, compared to the standard applied in Be- langer, where it was a class-1 road and liability was found, was key. "If you look at the sympa- thetic nature of the plaintiff in that Sudbury case, and you compare it to the facts in the House case, while the test is the guiding factor, it's also impor- tant for people in this practice in this area to take into account the surrounding circumstanc- es," says Polano. Polano says that courts have to take into consideration the resources available to smaller towns when it comes to their ability to maintain roads. For Polano, whose defence practice might include munici- palities as co-defendants or situ- ations where they are third par- ties, she says the decisions offer a road map for when to take a hard line on liability. "If you're thinking about third-partying a municipality in an existing lawsuit on the basis that they failed to maintain the roadway, I would now certainly look at these two Court of Ap- peal decisions and think about the way in which this test has been applied and take into con- sideration the factors such as the nature of a rural roadway versus higher-traffic thoroughfares," says Polano. LT Continued from page 10 Lower standards for rural areas key Precedent followed Continued from page 11 Christina Polano says that courts have to take into consideration the resources avail- able to smaller towns when it comes to their ability to maintain roads. Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. 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