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Newsletters 2012 > December 2012

In this issue:
1. Firm and Industry News
2. Statutory Accident Benefits Priority Disputes
3. Ontario Court Jurisdiction
4. Cape Town Treaty and Aircraft Protocol

 

1. Firm and Industry News

  • Fernandes Hearn LLP Annual Seminar - Toronto - January 17th 2013
  • Marine Club Annual Dinner - Toronto - January 18th 2013

Gordon Hearn will be representing the Firm at the Conference of Freight Counsel meeting in Dallas, Texas on January 13-14th and at the Transportation Lawyers Association annual Chicago Conference on January 25th. Kim Stoll will also be attending the Transportation Lawyers Association annual Chicago Conference on January 25th.

Gordon Hearn will be presenting a paper "Contracting Motor Carrier Services in Canada: Key Elements and the Regulatory Framework" at a meeting of the National Motor Freight Traffic Association in San Diego, California on January 29th.

Rui Fernandes will be presenting a webinar for the Ontario Trucking Association on freight claims on January 29th, 2013. He will also be presenting a paper on "New Developments in Canadian Subrogation Law" at the Recovery Forum in New York on April 11th, 2013.

LexisNexis Canada has just released its Halsbury's Laws of Canada - Maritime Law title. Rui Fernandes is the author of this new work. This completes Rui's trilogy of works for LexisNexis' Halsbury's Laws of Canada. Last December his Transportation - Carriage of Goods and Transportation - Railway Law was published. The current work is described by LexisNexis with the following introduction:

"The globalization of the economy has ballooned the international shipping community in size, making the sea an integral means of modern trade. This title is a complete source of admiralty law across Canada. Covering both the general issues of maritime law, such as its legislative and constitutional framework, and the more specific issues, such as regulatory and safety requirements and the operation of ships, this title is essential for practitioners working in fields of trade, administrative and international law."


 

2. Statutory Accident Benefits Priority Disputes

The Ontario Insurance Act provides that every contract evidenced by a motor vehicle liability policy shall provide for statutory accident benefits. It also provides that certain rules apply for determining who is liable to pay statutory accident benefits. Any person who is injured in a motor vehicle collision or certain relatives or dependents of any person who is injured in a motor vehicle collision may be eligible for benefits. Ontario's standard auto insurance policy provides individuals with benefits, such as medical and rehabilitation benefits, caregiver benefits, income replacement and non-earner benefits, who are injured in a motor vehicle collision regardless of who is at fault. The relevant sections of the legislation are:

Statutory accident benefits
268. (1) Every contract evidenced by a motor vehicle liability policy, including every such contract in force when the Statutory Accident Benefits Schedule is made or amended, shall be deemed to provide for the statutory accident benefits set out in the Schedule and any amendments to the Schedule, subject to the terms, conditions, provisions, exclusions and limits set out in that Schedule. 1993, c. 10, s. 26 (1).

Liability to pay
(2) The following rules apply for determining who is liable to pay statutory accident benefits:
1. In respect of an occupant of an automobile,
i. the occupant has recourse against the insurer of an automobile in respect of which the occupant is an insured,
ii. if recovery is unavailable under subparagraph i, the occupant has recourse against the insurer of the automobile in which he or she was an occupant,
iii. if recovery is unavailable under subparagraph i or ii, the occupant has recourse against the insurer of any other automobile involved in the incident from which the entitlement to statutory accident benefits arose,
iv. if recovery is unavailable under subparagraph i, ii or iii, the occupant has recourse against the Motor Vehicle Accident Claims Fund.
2. In respect of non-occupants,
i. the non-occupant has recourse against the insurer of an automobile in respect of which the non-occupant is an insured,
ii. if recovery is unavailable under subparagraph i, the non-occupant has recourse against the insurer of the automobile that struck the non-occupant,
iii. if recovery is unavailable under subparagraph i or ii, the non-occupant has recourse against the insurer of any automobile involved in the incident from which the entitlement to statutory accident benefits arose,
iv. if recovery is unavailable under subparagraph i, ii or iii, the non-occupant has recourse against the Motor Vehicle Accident Claims Fund

One area that gives rise to litigation involves determining which of several insurers pays for the statutory benefits - priority claims.

Recently in Security National Insurance Company v. Markel Insurance Company, 2012 ONCA 683 the Ontario Court of Appeal had occasion to determine two priority disputes between insurers arising from the interpretation of s. 66(1) of the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, O. Reg. 403/96 ("SABS"), enacted pursuant to the Insurance Act, R.S.O. 1990, c. I.8.

Section 66(1) deems certain persons to be named insureds for the purposes of s. 268(2) of the Insurance Act. This affects the priority in which insurers are to pay statutory accident benefits under s. 268 of the Act.

Section 66 is headed "Company Automobiles and Rental Automobiles". Section 66(1) states:

(1) An individual who is living and ordinarily present in Ontario shall be deemed for the purpose of this Regulation to be the named insured under the policy insuring an automobile at the time of an accident if, at the time of the accident,

(a) the insured automobile is being made available for the individual's regular use by a corporation, unincorporated association, partnership, sole proprietorship or other entity; [Emphasis added.]

In cases with comparable facts, two arbitrators interpreted s. 66(1) differently and therefore reached different legal conclusions. The matter ended up in the Court of Appeal.

Case No. 1 - Security National Insurance Company v. Markel Insurance Company

Pinnacle Transport Ltd. operated a transport company. Markel Insurance Company issued a motor vehicle liability policy to Pinnacle as named insured, which provided coverage for all vehicles owned, registered, leased and/or operated on behalf of the named insured.

Duncan McKerchar carried on business as a sole proprietorship with the business name "The Tidy Scot". Mr. McKerchar bought a 1998 GMC truck from Pinnacle and paid for it in bi-weekly installments.

Pinnacle and The Tidy Scot entered into an Independent Contractor Agreement, dated September 14, 2005. It provided that:

(i) The Tidy Scot, as an independent contractor, would perform such transportation and ancillary services, including loading and unloading as requested by Pinnacle. The Agreement expressly provided that the relationship was not one of master/servant, principal/agent or employer/employee.

(ii) Pinnacle agreed to use the truck that was owned or leased by The Tidy Scot, but The Tidy Scot agreed to update the truck when and if required by Pinnacle and/or the Insurance Company. (The Insurance Company was not identified in the Agreement.)

(iii) During the term of the Agreement, The Tidy Scot would have full control and possession of the truck and assumed total responsibility for the operation, supervision and maintenance of the truck in a safe and proper working condition and in appearance satisfactory to Pinnacle. The Tidy Scot agreed to pay and to indemnify Pinnacle for all expenses arising out of the operation, maintenance and repair of the truck.

(iv) If required by Pinnacle, The Tidy Scot was to affix Pinnacle's logo/identification to the truck.

(v) The Tidy Scot agreed to enroll in Pinnacle's fleet public liability and property damage and cargo insurance coverage. The Tidy Scot was responsible for the deductibles and was to pay $145 per pay period for the insurance coverage.

(vi) Pinnacle would buy the license plate for the truck but The Tidy Scot would pay for it.

(vii) The Tidy Scot was not to use the truck as a personal vehicle and was not to operate the truck for any other carrier or operator while it was being operated under Pinnacle's license and insurance.

(viii) The Tidy Scot received 75 per cent of the revenues generated by the truck each pay period and Pinnacle received 25 per cent.

The vehicle registration showed Duncan R. B. McKerchar / The Tidy Scot as the owner of the vehicle but Pinnacle was listed as the owner on the plate portion of the registration.

Consistent with the terms of the Agreement, the truck was never used by The Tidy Scot for anybody other than Pinnacle.

On April 4, 2006, Mr. McKerchar was injured. He attempted to jump onto his moving truck, which was being operated by another driver, fell under it and was run over. Mr. McKerchar was not a named insured nor a listed driver on the Markel policy of insurance issued to Pinnacle. He claimed statutory accident benefits from Security National Insurance Company ("Security National"), the insurer of his personal use vehicle. Security National paid the statutory accident benefits but instituted a claim that the obligation to pay these benefits rested with Markel as the insurer of Pinnacle's fleet of vehicles.

At arbitration, the Arbitrator also concluded that Mr. McKerchar was an occupant of the truck at the time of the accident. The Arbitrator held that it would strain the wording of s. 66 to say that the truck was made available by Mr. McKerchar/The Tidy Scot to Mr. McKerchar. Nor could the Arbitrator see any evidence of a joint venture between Mr. McKerchar and Pinnacle or "other entity" for the purpose of s. 66(1). Therefore Mr. McKerchar was not a deemed named insured under the Markel policy. In the result, Security National was required to pay the statutory accident benefits.

The Court of Appeal found that the Arbitrator was wrong. The Court espoused that:

I see no legitimate reason why a sole proprietorship should not be permitted to make a vehicle available to the sole proprietor. The subsection contemplates that an individual operating a sole proprietorship can make a vehicle available to him or herself. Put differently, there is no requirement that the two parties be divorced from one another. In my view, on a plain reading of s. 66(1)(a), this is clear.

This brings me to a discussion of the legislative intent. I agree with Arbitrator Bialkowski that the intent of the section is that the commercial insurer should be responsible for the accident benefits arising from the operation of the commercial vehicle.

The substance of the subsection is consistent with that conclusion. The section is headed "Company Automobiles and Rental Automobiles". While not determinative, the heading does provide some context. As with a company or rental automobile, if a vehicle is made available for regular use by any of the listed entities, the risk is to be borne by the insurer of that vehicle. This, in my view, makes sense and should be so in spite of any past practice in the insurance industry.

I therefore conclude that both the language and the evident intent of s. 66(1) permits an insured vehicle to be made available for an individual's regular use by the individual's sole proprietorship.

Markel was found liable for the statutory benefits.

Case No. 2 - Kingsway General Insurance Company v. Gore Mutual Insurance Company

Trowbridge Transport Ltd. operated a transport company. Kingsway General Insurance Company issued a fleet policy in favour of Trowbridge as named insured, which provided coverage for all vehicles owned and operated on behalf of the named insured.

William Higgs owned a freightliner tractor. He worked as a self-employed owner/operator for Trowbridge. He had worked in this capacity since 2002 when he entered into the first of a series of owner/operator agreements between his sole proprietorship, "Bill Higgs & Sons", and Trowbridge. In August 2007, Mr. Higgs' registration of his business name expired.

Trowbridge entered into an Owner/Operator Agreement with Bill Higgs & Sons, dated January 1, 2008 (the "Agreement"). It provided that:

(i) Bill Higgs & Sons, as an independent contractor, was to lease its freightliner tractor to Trowbridge and perform haulage services for Trowbridge. The Agreement expressly provided that the relationship created was that of an independent contractor and was not an employment relationship.

(ii) Bill Higgs & Sons was obliged to equip its freightliner tractor in accordance with Trowbridge's standards. It was responsible for maintenance of the vehicle and Trowbridge was responsible for maintenance of any trailers.

(iii) Trowbridge would obtain and maintain in force policies of insurance. The policies would be purchased on behalf of Bill Higgs & Sons, which was responsible for payment of all deductibles.

(iv) Trowbridge would pay for the licence plate on behalf of Bill Higgs & Sons.

(v) Restrictions were placed on the use of alternate drivers and passengers were not permitted without Trowbridge's approval.

Consistent with the terms of the Agreement, Mr. Higgs'/Bill Higgs & Sons' freightliner tractor was plated in the name of Trowbridge and Trowbridge obtained vehicle insurance from Kingsway General. The freightliner tractor was a scheduled vehicle on the Kingsway General policy and Mr. Higgs was a listed driver but not a named insured on the policy.

In February 2008, Mr. Higgs was injured in an accident while he was driving the freightliner tractor. At the time of the accident, Mr. Higgs was the named insured under the automobile insurance policy issued by Gore Mutual Insurance Company for his 1996 Oldsmobile personal use automobile. After the accident, Mr. Higgs applied to Kingsway General for statutory accident benefits. Kingsway General paid the accident benefits but served Gore Mutual with a notice of dispute between insurers. Kingsway General took the position that Gore Mutual should be the insurer liable to pay the accident benefits. Gore Mutual disagreed.

The two insurance companies proceeded with an arbitration. The Arbitrator held that Mr. Higgs was a "deemed named insured" under s. 66(1) of the SABS because the freightliner tractor was made available to Mr. Higgs by: (a) the sole proprietorship of Bill Higgs & Sons, or (b) another entity, namely, the joint venture comprised of Bill Higgs & Sons and Trowbridge under the Agreement. The Arbitrator concluded that the legislative intent of s. 66(1) was to place the freightliner tractor insurer in priority to the individual's personal use vehicle insurer in circumstances in which the accident involved the freightliner tractor in the course of the commercial arrangement between the parties. As such, he determined that Kingsway General, as the insurer of the freightliner tractor, was the priority insurer responsible to pay all accident benefits to Mr. Higgs.

The Court of Appeal affirmed the decision of the Arbitrator on the same analysis as case no. 1 above. Kingsway General was responsible to pay all of the accident benefits.

Rui Fernandes



3. Ontario Court Jurisdiction: Does a Connection through a Web Site Constitute "Doing Business in Ontario"?

Our courts do not allow any lawsuit to be conducted in the Ontario courts simply because a plaintiff chooses to sue here. There has to be a "real and substantial connection" between the case and the Ontario jurisdiction. As determined by a recent decision by the Supreme Court of Canada, (*1) a court will have jurisdiction in respect of a claim on the basis of one or more "objective factors" being satisfied that connect the legal situation or the subject matter of the litigation with the Ontario forum.

The "objective factors" identified by the Supreme Court of Canada to be taken into consideration are as follows:

a) the defendant is domiciled or resident in the province;
b) the defendant carries on business in the province;
c) the tort was committed in the province; and/or
d) a contract connected with the dispute was made in the province. (*2)

These factors - in particular items a) and d) - were recently put to the test in the Ontario Superior Court of Justice decision of Colavecchia v. The Berkeley Hotel (*3). This decision provides an interesting analysis on the extent of how one's accessibility through the Internet may constitute "doing business" in a jurisdiction.

Background

In February of 2011, the plaintiffs decided to book a short holiday in the United Kingdom. The plaintiff Christene DeGasperis used her TD Visa card to make a reservation online at the Berkeley Hotel in London. After checking in to the hotel, the plaintiff Sandro Colavecchia was injured when he slipped and fell in the bathroom of their hotel room. Ms. DeGasperis called for a taxi and transported Mr. Colavecchia to a hospital where he was treated for his injuries. The plaintiffs returned to Ontario the next day. The plaintiffs sued the Hotel in Ontario claiming damages for lost income and for lost enjoyment of life on account of the injuries. The Hotel responded to the lawsuit with a motion to dismiss the claim on the basis that there was a lack of jurisdiction in the Ontario Superior Court.

As to the "objective factors" listed above, governing whether the Ontario court had jurisdiction over the claim, the plaintiffs were not suggesting that the Hotel was domiciled in Ontario, or for that matter that the tort was committed in Ontario. The plaintiffs did assert that the Hotel carried on business in Ontario, and further that that the Hotel reservation contract was made in Ontario.

On the Motion for a "Stay" by the Hotel

Prior to addressing the "objective factors" question, the Court addressed a further consideration offered by the plaintiffs that the law suit had a proper "home" in Ontario by virtue of the fact that the plaintiffs suffered "damages" in Ontario, which should be considered a "connecting factor" such that the claim could be brought here. Prior to the Supreme Court of Canada's recent pronouncement of the "objective factors", the fact that damages were sustained in Ontario had historically suggested at least some connection with the province. The Court did not apply the older body of "location of damages suffered" case law in favour of the plaintiffs so as to find that Ontario court had jurisdiction over the claim. This older body of case law was found to be dated, that "connecting factor" having been laid to rest by the Supreme Court of Canada:

The use of damage sustained as a connecting factor may raise difficult issues. For torts like defamation, sustaining damages completes the commission of the tort and often tends to locate the tort in the jurisdiction where the damage is sustained. In other cases, the situation is less clear. The problem with accepting unreservedly that if damage is sustained at a particular place, the claim presumptively falls within the jurisdiction of the courts of the place, is that this risks sweeping into that jurisdiction claims that only have a limited relationship with that forum. An injury may happen in one place, but the pain and inconvenience resulting from it might be felt in another country and later in a third one. As a result, presumptive effect cannot be accorded to this connecting factor. (*4)

The judge hearing the Hotel's application accordingly proceeded to deal with the arguments advanced by the plaintiffs that two of the foregoing "objective factors" were, in fact, satisfied.

Issue #1: Does the Hotel Carry on Business in Ontario?

Ms. DeGasperis booked the hotel through the TD Visa Travel Rewards website. She logged on, conducted a search for a hotel in London, and, based on the results, selected a hotel. She paid for the hotel by redeeming travel points. The plaintiffs argued that the Hotel carried on business in Ontario by virtue of its connection with the TD Travel Rewards website. The Court, however, noted that the Hotel did not have any office or other premises in Ontario. There was no evidence that Hotel employees regularly visited Ontario or that the Hotel engaged in a marketing campaign to specifically target Ontario residents.

In the Van Breda decision, being the Supreme Court of Canada decision referred to above, the plaintiff was injured while on holiday in Cuba at a resort managed by Club Resorts. The plaintiff's husband -a professional squash player - had an arrangement with the club where he would provide two hours of tennis lessons per day in exchange for room and board for the plaintiff and him at the hotel. The arrangement had been made via another individual who was also a defendant in that lawsuit and who specialized in recruiting professionals for that club and other similar clubs. There was also a companion law suit to the Van Breda claim, involving different facts, and also concerning a claim by a plaintiff who had drowned while scuba diving at one of the club's properties.

The Court found in both cases that Club Resorts was carrying on business in Ontario. In the case of Ms. Van Breda's husband, while in Ontario he entered into a special contract specifically aimed at recruiting racquet professionals. As concerns the companion action, the court found that Club Resorts had specifically marketed to Ontario residents. Club Resorts also had the use of an office in Ontario and its employees frequently travelled to Ontario for business purposes. Club Resorts was found to have been in the business of marketing and organizing tours from "wintery Ontario to its properties in the sunny Caribbean".

In this case, the Hotel defendant did not have an office or employees in Ontario. There was no evidence that it specifically marketed to Ontario residents. The Hotel was one of many hotels that were listed on the TD Visa Travel Rewards website. To quote the judge, the TD Visa Travel Rewards website "seems nothing more than a search engine for those who want to use their travel points - on any hotel that has a relationship with TD Visa Travel Rewards". The Court suggested that, at most, TD Visa Travel Rewards is a mere booking agent of the Hotel. This was not enough to create a principal - agent relationship that the plaintiffs were suggesting in terms of fixing the Hotel as having a business presence in Ontario through the "agency" of TD Visa Travel Rewards. Rather, the Court found that it is was obvious that such a boutique hotel in a foreign jurisdiction would make it possible for potential patrons to book through websites like TD Visa Travel Rewards specifically so that the hotel does not have to carry on business in a foreign jurisdiction. As the Court put it, "since the Web is everywhere, on the plaintiff's theory, every hotel in the world that can be booked through the Web does business everywhere. If the interaction between Ms. DeGasperis and the hotel through a Canadian booking website was enough to be "carrying on business", it would amount to a form of universal jurisdiction".

The Court cited the Supreme Court of Canada in Van Breda on this point:

… The notion of carrying on business requires some form of actual, not only virtual, presence in the jurisdiction, such as maintaining an office there or regularly visiting the territory of the particular jurisdiction. " (*5)

In essence, the mere access to a website is not enough to establish that a defendant carries on business in any particular territory or region. (*6) Accordingly the Court refused to find that the Ontario courts had jurisdiction over the claim on this basis.

Issue #2: Was a Contract Connected with the Dispute Made in Ontario?

The Court noted that the above "carrying on business" issue is closely connected to the alternative argument raised by the plaintiffs that the subject contract had been entered into in Ontario. The argument was raised that, by logging onto the TD Travel Rewards website, the plaintiff Ms. DeGasperis had made a contract with the Hotel in Ontario. The court disagreed, finding that, at most, the plaintiffs had made a contract with TD for TD to, in turn, make a booking with the Hotel.

Citing basic contract law, the Court noted that, for there to be a valid contract, there must be the essential elements of offer, acceptance and consideration. These elements all indicated a contractual relationship between TD Visa Travel Rewards and the plaintiffs - there being nothing along these lines between the Hotel and the plaintiffs. There was simply no connection between the plaintiffs and the Hotel until the plaintiffs checked in. On the question of 'consideration' - that is, the requirement for some corresponding obligation from the plaintiffs to use the hotel room in exchange for the use of same, the plaintiffs paid with their TD Travel Rewards points - which could not be redeemed directly with the Hotel. The Court found that, if there was a contract with the Hotel, this was formed when the plaintiffs actually checked into the Hotel and that any legal aspects of their stay would then be governed by the U.K. law governing innkeepers. The Court accordingly found that there was no contract connected with the dispute that was made in Ontario.

In the result, the action was stayed in favour of the Hotel and the plaintiffs were required to pursue a claim for the damages sought in the United Kingdom.

Gordon Hearn

Endnotes

*1 Club Resorts Ltd. v. Van Breda [2012] S.C.J. No. 17, at para. 82
*2 at para. 90
*3 2012 ONSC 4747
*4 at para. 89
*5 at para. 87
*6 It should be noted that the Supreme Court of Canada in the Van Breda decision noted that the issue had not been placed before it to decide whether, and if so, when e-trade in the jurisdiction would amount to a presence in the jurisdiction. This is a question that has accordingly been left for another day.


 

4. Cape Town Treaty and Aircraft Protocol

On December 28th 2012 the Honourable Denis Lebel, Minister of Transport, Infrastructure and Communities and Minister of the Economic Development Agency of Canada for the regions of Quebec, announced action to strengthen the airline industry through the Cape Town Convention on International Interests in Mobile Equipment and the Aircraft Protocol.

The Cape Town Convention on International Interests in Mobile Equipment, or Cape Town Treaty is an international treaty intended to standardize transactions involving movable property. The treaty creates international standards for registration of ownership (including dedicated registration agencies), security interests (liens), leases and conditional sales contracts, and various legal remedies for default in financing agreements, including repossession and the effect of particular states' bankruptcy laws.

Three protocols to the convention are specific to three types of movable equipment: Aircraft Equipment (aircraft and aircraft engines; signed in 2001), railway equipment (signed in 2007) and space assets (signed in 2012).

The treaty resulted from a diplomatic conference held in Cape Town, South Africa in 2001. The Convention portion of the treaty came into force on April 1, 2004. The Aircraft Protocol (which applies specifically to aircraft and aircraft engines) took effect on March 1, 2006 when it was ratified by 8 countries.

The Aircraft Protocol (officially: Protocol to the Convention on International Interests in Mobile Equipment on matters specific to aircraft equipment) was signed immediately with the treaty and the only protocol currently entered into force. It applies to aircraft that can carry at least eight people or 2750 kilograms of cargo, aircraft engines with thrust exceeding 1,750 pounds-force (7,800 N) or 550 horsepower (410 kW), and helicopters carrying 5 or more passengers.

In introducing the ratification by Canada, the Federal Government stated that these agreements could help Canadian airlines achieve important savings on aircraft financing.

"The Government of Canada is focused on the economy and working to create a more competitive business environment in Canada," said Lebel. "The Convention and Protocol help to strengthen the airline and aerospace industries through an international legal framework for the financing of their aircraft equipment."

The Jobs and Growth Act, 2012, which was passed by Parliament earlier in December 2012, includes amendments to the International Interests in Mobile Equipment (aircraft equipment) Act and other legislation that introduces necessary policy and regulatory changes to support Canada's participation in the Convention and Protocol.

This Federal legislation, in conjunction with legislation adopted in Alberta, British Columbia, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Ontario, Quebec and Saskatchewan, implements the Convention and Protocol.

The Cape Town Convention and Aircraft Protocol will take effect in Canadaon April 1, 2013.

Participation in the Convention and Protocol was confirmed with the deposit of Canada's instrument of ratification with the International Institute for the Unification of Private Law (Unidroit) in Rome on Friday, Dec. 21, 2012.

The International Registry of Mobile Assets established to record international property interests in the aircraft equipment covered by the treaty is located in Ireland. Mediation cases for leasing disputes are to be heard in the High Court of Ireland.

Rui Fernandes

 

 

 

 

 

 


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