The first case this month deals with a summary judgment motion by the Province of New Brunswick, on the basis that the plaintiff failed to give the Province proper notice of an action against it under the Proceedings Against the Crown Act.
In our second case, a homeowners insurer’s denial of coverage following a house fire was upheld by the Court on the bases of the house’s vacancy and material changes in the risk which were not disclosed prior to the loss
Our third case explores questions of the evidentiary burden to meet for allegations that a motor vehicle accident victim was not wearing a seat belt. It also looks at items of consideration when a Court assesses damages.
Biseau v. Harnish, 2012 NBQB 339
The parties were involved in a motor vehicle accident in April 2009 in which the plaintiff was rear-ended. The defendant driver was employed by the Province of New Brunswick, and at the time of the accident was operating a vehicle owned by the Province. The plaintiff’s solicitor notified the adjuster for the insurers of the Province within two months of the accident, though it appeared the Province was aware of the situation as early as two weeks after the accident.
The plaintiff filed a court action within the two-year limitation deadline prescribed by the Limitation of Actions Act, and granted a waiver for a Statement of Defence to be filed. Pleadings, documents and medical evidence were exchanged between the parties, and the Province examined the plaintiff at an examination for discovery held in August 2012.
Approximately one month after the examination for discovery, the Province brought a motion for summary judgment on the basis that the plaintiff did not provide it with a formal notice of her action in accordance with section 15 of the Proceedings Against the Crown Act, which requires a plaintiff to give the Province two months’ previous notice in writing before an action is filed. In addition, the Province contended that the individual defendant was acting in the course of his employment and duties as an officer or agent of the Province, and was therefore immune from liability under subsection 4(8) of the Proceedings Against the Crown Act.
The motions judge expressed sympathy for the plaintiff’s situation, stating he found the position taken by the Province’s insurer to be unfair. However, he found he was bound by precedent since no judicial discretion existed to prevent the strict application of a notice requirement under a provincial statute. Specifically, the motions judge stated: “[t]here is a strict legislative requirement for a Notice to be given prior to the commencement of the action. I do not believe the Court could permit, following a late Notice being issued, an amendment which would...effectively toll the Limitation of Actions Act. Consequently, the strict provisions of the Proceedings Against the Crown Act must be followed and there is no doubt they were not.”
The motions judge granted the summary judgment motion against the Province. However, the motions judge did not believe the protection from liability under subsection 4(8) of the Proceedings Against the Crown Act was designed to permit Crown employees to commit tortious acts causing injury without liability to them or their employer. Furthermore, on the fact situation before the Court, the motions judge did not believe that the individual defendant was acting in the course of his employment duties when the accident occurred. On that basis, the summary judgment motion as it related to the individual defendant was dismissed.
Duguay v. Lloyd’s Underwriters, 2012 NBQB 357
The plaintiff purchased a house in May 2009. Three months later, the house was completely destroyed by fire. The plaintiff’s insurer denied coverage based on the 30-day vacancy provision in the plaintiff’s insurance policy, and also that the plaintiff had failed to disclose a material change in risk, namely the presence of a tenant living in the house at the time of the fire.
The plaintiff’s son had bought the house for his father and in his father’s name, but significant renovations were needed before the plaintiff could move in. The plaintiff’s son informed his insurance broker that the plaintiff intended to move into the house once the renovations were completed. The broker testified that she was concerned about the house’s occupancy status given these renovations, but her understanding was that the renovations were minor in nature and so she believed the plaintiff would be moving in immediately after the purchase closed, or at latest a few days thereafter.
The renovations took longer than expected, and in fact remained incomplete at the time of the fire. Neither the plaintiff nor his son ever did move into the house, which also never had electricity or running water prior to the fire.
A friend of the plaintiff reportedly moved into the house in mid-July 2009, bringing a mattress and some clothes with him. He also signed an agreement whereby he promised to pay the plaintiff rent, though on the evidence the judge was not convinced he ever did so. This tenant also spent a number of nights elsewhere, and the night of the fire slept at a friend’s home.
The Court found that the house had been vacant for more than 30 days between the time of purchase and when the tenant moved in. In addition, the judge was not convinced that the tenant was an “occupant” of the house as contemplated by the insurance contract, since he had not paid rent by the time of the loss and the judge believed he actually spent very little time at the house. For those reasons, the judge found the house was “vacant” at the time of the loss, according to the definition of that term found in the plaintiff’s insurance policy; and therefore the plaintiff’s insurer was justified in denying coverage.
The trial judge added that even if he had found the tenant was an occupant, the fact of having a tenant stay in the house would have represented a material change in the risk which the plaintiff failed to disclose to the insurer. Either way, the insurer was justified in denying coverage. Likewise, the plaintiff’s never moving into the house in the three months he owned it was another material change in the risk which he should have disclosed to his insurer, but did not. This omission as well would have had the effect of voiding the contract of insurance.
In the result, the plaintiff’s claim was denied and the action was dismissed.
Guignard v. Hall, 2013 NBQB 007
The plaintiff, a tattoo artist, was seriously injured in a motor vehicle accident in February 1996 when the vehicle in which he was a passenger left the roadway and hit a telephone pole.
The defendants, who were the owner and operator of the vehicle in question, admitted liability for the accident but maintained that the plaintiff was not wearing a seat belt at the time the accident occurred and thus bore some responsibility for his injuries. The plaintiff had been ejected from the vehicle on impact, and a number of medical reports indicated he might not have been wearing his seat belt.
At trial, the plaintiff testified that he could not remember whether he was wearing a seat belt at the time of the accident. He was unemployed and on social assistance at the time of the accident but intended to open a tattoo parlour. He had a reputation as a tattoo artist and was reasonably successful.
The plaintiff did not declare income related to his work as a tattoo artist with the Canada Revenue Agency, but later filed T-1 adjustment forms with the agency prior to trial. The Court did give consideration to the plaintiff’s amended income tax returns, though these were said not to be determinative in calculating the plaintiff’s damages.
Post-accident, the plaintiff was unable to return to work as a tattoo artist. He had a Grade 9 education, no business experience, and in the five years prior to the accident his highest annual earnings were $5,200.
The trial judge interpreted section 265.2(1) of the Insurance Act to mean that the defendants bore the onus of proving, on a balance of probabilities, both that the plaintiff was not wearing a seatbelt at the time of the accident, and that the failure to wear a seatbelt contributed to the damages actually sustained by the plaintiff. The Court found that the defendants had not provided sufficient evidence to prove the plaintiff was not wearing his seat belt; it was not sufficient to conclude that the plaintiff was not wearing a seat belt simply because he was ejected from the vehicle. The judge was equally unconvinced by the evidence that the plaintiff’s failure to wear a seat belt contributed to the injuries he sustained. In the end, the defence of contributory negligence raised by the defendants failed.
On the issue of damages, the Court held that the plaintiff’s injuries had significant impact on his life and his ability to earn a reasonable living, and awarded $100,000 in general damages for non-pecuniary loss.
The trial judge found that but for the accident, the most plaintiff likely would have opened a tattoo parlour and become a self-employed tattoo artist. He concluded the appropriate amount of earnings for the plaintiff to be $26,000.00 annually, and awarded amounts of $230,500 for past loss of income and $420,836 for future loss of income.
The plaintiff was also successful in seeking amounts for past loss of valuable services, future loss of valuable services, and compensation for massage therapy costs and future cost of medication. The trial judge declined to make awards for an investment management fee and a gym membership, because of a lack of evidence. He did, however, allow pre-judgment interest at the rate of 4% on general damages and 2% on past loss of income.
All told, the plaintiff was awarded $1,105,362.00 in damages and allowable interest, $37,375 in costs, and recovery of all reasonable disbursements.