Whose Risk Is It Anyway – Part One
by Grant Ferguson | Oct 25, 2016
The two biggest questions for which we, as defence lawyers, are engaged are: “what is the liability” and “what are the damages”. Every case management or litigation plan is structured around these two questions. There are strategic assessments of them, separate spreadsheets to assess their intertwining influence, and budgets to assess the costs of answering these two questions. Experts are retained to explore them and the entire litigation process is an extension of the investigation into them. From defence, to examinations, to pre-trial, to trial, these questions form the conversation of a standard litigation.
But, what if those did not need to be the only questions, or even the first question, in the handling of a civil suit? What if the first and greater question was: “Whose risk is it anyway?” What if liability for the plaintiff’s cause of action and the damages resulting therefrom could be made irrelevant? How would that streamline and improve upon the direction of litigation? How can we change the conversation to make that the question?
Not through improv.
The show “Whose Line it is Anyway?” was built on the creativity of comedians flying by the seat of their pants. Not surprisingly, some counsel think that is the same way to run a suit. To change the conversation, to ask “whose risk is it anyway” is to educate and shift the focus away from questions of liability and damages entirely. This attempts a dialogue about whether the risk should lie with another target and potentially an easier target. This requires an awareness of this issue as early as possible, and tools to focus the conversation deliberately and intentionally at the earliest possible stage.
To change the conversation, we must first understand the conversation. What this paper attempts to do is introduce the topic of risk transfer in its two main forms, and to encourage their pursuit outside of a lengthy fight over liability and damages. If these are possibilities based on the facts of your case, they are avenues to which we can direct the conversation. Given the right tools and approach, you and your counsel can identify these avenues early, and can change the question from fault and value to the “Whose risk is it anyway”?
WHAT IS A RISK TRANSFER?
A risk transfer is the transfer of defence costs, indemnity or responsibility from one party to another. It applies generally to all types of civil losses: slip and falls, property losses, motor vehicle accidents. It is fact-specific and so relies upon the ability of insured, adjuster and lawyer to work together quickly and efficiently at the earliest stage of a suit to understand and to characterize the facts of the case properly.
It results in another defendant or party accepting the risk onto themselves. This can be through an assumption of defence, an agreement to indemnify and hold harmless, an agreement to release the insured, or a complete walkaway.
This results in costs savings for the insurer and insured, a narrowing of the issues, elimination of unnecessary parties, a dismissal of the action at a preliminary stage and most importantly perhaps a closed file for the insurer. As such, the ability to execute such risk transfers can eliminate unnecessary costs and exposure even before trial, before mediation, and often even before a statement of defence is needed.
The result is either an Order in favour of your insured or a closed file and a transferred defence. Both are ideal outcomes that successfully limit exposure and legal costs.
TYPES OF RISK TRANSFER
The argument here is that to achieve such goals, we must control the conversation of counsel and identify which category of risk transfer applies to any particular case. The position of this paper is that there are generally only two types of transfers, each of which needs to be handled differently. These general categories are:
- Jurisdictional Transfers
- Hold Harmless/Indemnity
This does not dispute that “wins” can be achieved by defence counsel at trial. Walkaways can also be achieved by defeating plaintiffs on the merits of the case including: standard of care, balance of proof, credibility and systems of inspection etc. However, these later avenues take time, money and multiple steps to explore. They are also liability arguments, not arguments concerning risk transfer to another party or the plaintiff.
In order to effect a discussion truly of “whose risk it is”, the conversation should be pressed that one of these types of risk transfers applies to make questions of standard of care or credibility irrelevant.
PART ONE: REVIEW OF JURISDICTIONAL TRANSFERS – WHAT ARE THEY?
These cases are ones in which the insured client does not have a duty of care to the plaintiff for the case alleged. The resolution of such an issue involves the insured being released from the action. Ideally, it should not require examinations or any further involvement of the insured. It should result in a dismissal Order in favour of the insured.
A simple example is a plaintiff who slips and falls on a sidewalk. Most of the claims involving jurisdictional transfer appear to follow this fact scenario, though other situations involving property losses, fire losses, or other variations on personal injury cases can fit this mold.
In the most common example, the plaintiff blames your insured occupier, your insured adjacent property owner, your insured contractor or any other role ever connected to the location in issue. The notice letter from the lawyer comes across your desk wishing to hold your insured responsible for some alleged injury.
What do you do?
JURISDICTIONAL ELEMENTS NEEDED AND REASONS
For a jurisdictional transfer of risk, there need to be:
- Two or more defendants;
- A clear known area of the injury;
- Documentation of the cause of issue;
- A contract, lease or property survey that clearly defines the responsibility between defendants.
What is not needed is a statement of claim, a certificate of insurance, a coverage analysis or often a contractual relationship between the two defendants. Those are valuable inquiries, but for another theory, not jurisdictional transfers.
Documentation of the cause is often the most difficult element to prove. As we move into a digital age, with greater surveillance, more mobile phones, body cameras, and GPS tracking, one benefit for the insurance defence industry is a better ability to recreate that point in time when the accident fell.
It is necessary for the adjuster to be able to secure such materials at first instance, so that we can have objective evidence, contemporaneous with the incident, of where the incident occurred and often, the nature of the fault itself.
Some common examples of such documentary materials and their uses include:
- Photographs of the scene: show the nature of the fault including scale;
- Video of incident: can demonstrate the mechanics of the injury or the nature of the damage;
- Mobile images/video: have the advantage of time stamping of the file to show time and can be used by security to capture plaintiff’s orientation;
- GPS tracking, if used by sophisticated insured, can pinpoint time and location of inspection, monitoring or attendance of security;
- Retained products: if it is a product defect/Sale of Goods case, the product itself is often important to retain. Occasionally ice melter/rock salt may even need to be retained from the scene to show conditions.
- Incident reports: demonstrate the details of the scene, reported cause of fault, and timing issues.
- Security Notes: often source documentation from which the incident reports can later be generated, important to show time.
- Investigator images: though not contemporaneous, the images of an investigator can be more detailed with measurements of fault and/or comments on conditions.
- Additional material then includes:
- Property survey: useful in most slip and fall cases for examinations but before that, for the determination of jurisdiction for loss
- Contract: if a business premises, a copy of the lease agreement with the tenant assists in defining boundaries and responsibilities.
What the defence lawyer then needs to do then is to establish with plaintiff’s counsel an admission as to location and nature of fault. This can be done through Demands for Particulars (Rule 25.10) before a statement of defence is needed. Alternatively, it can be secured through Requests to Admit (Rule 51) after pleadings are exchanged.
There always remain the arguments that the fall never happened, or not because of the issue complained, or that the issue was not a breach of the standard of care. Again, all these questions are liability questions, not jurisdiction. To answer these questions is a lengthy process. These answers will not end with a risk transfer. It is changing the conversation to ask the question “whose risk?” that is central to a jurisdictional transfer.
In the above case of a slip and fall on the sidewalk, the objective would be to focus the location on a specific spot and due to a specific cause, so jurisdiction can be transferred to the proper party.
If the sidewalk was municipal property and the location of the fall was due to ice and snow on municipal property adjacent to the insured’s property, the argument would be that the insured had no duty of care and that the jurisdiction for the matter lay with the City regardless of fault. If the plaintiff thinks he has a cause of action, he can take it up with the City and can agree to release the insured.
A Request to Admit (Form 51A) on the City reasonably to confirm jurisdiction can ease the plaintiff’s counsel concern over a LawPro claim and limit the risk that they are chasing a ghost. In our example, they can fight the City on gross negligence, but should then be contemplating the release of your insured.
If they do not, that is when motions and cases come in. Changing the conversation is not necessarily easy, or always on consent.
CASES CONCERNING JURISDICTION
Taylor et. al. v. Robinson et. al.  O.R. 535 (OCA)
This case involved a fall on an icy sidewalk that was opposite a driveway occupied and used jointly by the defendants. The plaintiffs contended that owing to the manner of the construction of the driveway, it acted as a channel to conduct water from the premises of the defendants to the sidewalk where, in certain conditions of weather, it froze. It was the ice, originating from this cause, which caused the plaintiff to slip and fall.
Conduct of Case
At trial, the plaintiff was successful. The doctrine of Rylands v. Fletcher (1868) L.R. 3 H.L. 330 was found to apply and to create a strict liability situation for water flowing off the defendants’ property.
The Court of Appeal did not basis their decision on Rylands v. Fletcher but on their decision in Meredith v. Peer 39 O.L.R. 271 (1917) which held:
The owner or occupant of a building, the roof of which is so constructed that from natural causes the snow or ice which falls or collects upon it will naturally and probably slid from the roof, is bound, apart from any obligation imposed upon him by a municipal by-law, to take all reasonable means to prevent the snow or ice from falling upon the adjoining property or on an adjoining highway and causing damage to person or property there; and that is the extent of the obligation which the law imposes upon him.
The Court of Appeal accepted that there was “abundant evidence that water did come down that driveway, as found by the trial Judge, and that it was at least a contributing factor in the formation of the ice complained of.”
This created a nuisance that the defendants were therefore liable for not removing.
The issue on jurisdiction was causation. Once causation was established by the “ample evidence” accepted by the Court, the defendants were doomed.
To refute such a position, the defendants would have needed to challenge that they had any causal role in the creation of ice, either through means taken to prevent it or addressing causes that could wholly explain it.
Instead, defence counsel back in 1933 tried to use the “it’s their fault too” argument, suggesting they were one of many contributors to the ice on which the plaintiff fell. Just as that would not work between two toddlers blaming each other, it did not here either. The Court was not moved by the absence of other tortfeasors not having been sued, being willing to attribute fault to the tortfeasors before it.
To transfer the risk in such a case, more defendants would have to have been added as Third Parties. There was needed more evidence on the true cause, and evidence needed to be led on property distributions to reduce the defendants’ role. None of this appears to have been put forward in this case. As such, the Court found the responding defendants liable, though the fall happened off their property.
What was lacking was an ability to establish causation clearly on the facts, or to define where the defendants’ control actually ended. It was the lack of this evidence, rather than the fatal doctrine of Rylands v. Fletcher, which found favour with the Court.
This case is meaningful for opening the door for jurisdictional arguments in contrast to the then dominating House of Lords decision in Rylands v. Fletcher. Rylands imposed strict liability for water off a property, eliminating any question of jurisdiction for that water. If the Rylands case were still good law in Ontario, arguably no jurisdictional argument would ever be successful. Fortunately, case law has evolved in this area since 1933 and since Rylands first came on the scene in 1868.
End of Rylands Doctrine
Smith v. Inco 2011 ONCA 628 (appeal to Supreme Court refused) was a Court of Appeal decision stating that automatic fault for the “extra hazardous” nature of the defendant’s conduct is not and should not be part of the common law of Ontario. Strict Liability for the release of substances from property is not a sufficient analysis of fault, as there still must be the questions of causation and consideration for duty of care.
As such, notwithstanding that plaintiff’s counsel may wish all cases to be settled on strict liability, Rylands v. Fletcher and its ilk no longer pose the correct questions. It is no longer sufficient in light of Smith v. Inco to assume causation or to rely on strict liability. The door is open to argue that jurisdiction for a fault lies with another tortfeasor or another cause, immunizing the defendant who can do so.
How it is Done?
Bongiardina v. Corporation of the City of Vaughan 49 O.R. (3d) 641  O.J. NO. 2751(O.C.A.)
The poetic narrative begins to set the case against the defendant municipality:
On a typical winter morning almost anywhere in Canada, the silence of the pre-dawn hours is often broken by the sound of municipal snow ploughs. Canadian taxpayers expect that their municipal governments will move quickly and efficiently to keep the streets clear and safe.
From there it is downhill for the City of Vaughan.
On January 23, 1997, the plaintiff fell on a sidewalk in front of a municipal residential address in the City of Vaughan. She was injured and brought an action against the City. She alleged that the accumulation of snow and ice on the sidewalk constituted a hazard and a nuisance. Negligence and breach of the Occupier’s Liability Act 1990 c. O. 2 was alleged.
The City of Vaughan defended the action and brought a Third Party Claim against the owners and occupants of the residential address abutting the area on the sidewalk on the basis of a municipal by-law requiring owners and occupants to clear snow on sidewalks abutting their properties.
That bylaw read:
Owners of…occupied…residential buildings…shall clear away snow and ice from the sidewalks on the highways in front of, alongside or at the rear of the land occupied by such buildings…
This was coupled with a penalty at the discretion of the presiding justice.
Conduct of Case
The Third Parties ratepayers pleaded that they had no jurisdiction for the location in issue. They further pleaded that the City “cannot be relieved from any liability imposed on it by the Municipal Act, R.S.O. 1990 c. M. 45”
The Third Party ratepayers brought a motion for summary judgement. Justice Beaulieu granted that judgment at 46 O.R. (3d) 345.
The motions judge, Beaulieu J. held:
..the Ontario courts have made it quite clear that owners and occupiers of a dwelling adjacent to a municipal sidewalk who are subject to a city by-law, such as By-law No. 300-93, do not owe a duty of care to users of the sidewalk since the remedies for falls on public sidewalks are found in the Municipal Act. . . Furthermore, it has been decided by the Ontario courts that the Occupier’s Liability Act . . . does not apply. A by-law requiring owners and occupiers of dwellings to remove snow and ice from public sidewalks adjacent to their properties cannot relieve the municipality from liability imposed by the Municipal Act. (Emphasis added)
The motions judge held that there was no duty of care for the adjacent landowners and granted summary judgment.
Court of Appeal Decision
This decision was appealed to the Court of Appeal of Ontario. The Court of Appeal found in favour of the dismissal and clarified the role of a jurisdictional analysis.
The appellant did not contend that the ratepayer’s alleged breach of the snow-clearing by-law, in and of itself, gave rise to tortious liability. Such an argument was foreclosed by the decision of the Supreme Court of Canada in Canada v. Saskatchewan Wheat Pool,  1 S.C.R. 205, 143 D.L.R. (3d) 9, where Dickson J. stated, at p. 227:
The notion of a nominate tort of statutory breach giving a right to recovery merely on proof of breach and damages should be rejected, as should the view that unexcused breach constitutes negligence per se giving rise to absolute liability.
The City moved that non-compliance with the by-law should still serve as evidence of the breach of a common law duty of care by the adjacent property owner. As a general proposition, there was merit in this submission. In Saskatchewan Wheat Pool, having rejected an independent tort of breach of statute, the court proceeded to link breach of statute and the common law of negligence. Dickson J. said, at p. 225:
Breach of statute, where it has an effect upon civil liability, should be considered in the context of the general law of negligence. Negligence and its common law duty of care have become pervasive enough to serve the purpose invoked for the existence of the action for statutory breach. The question then becomes: is there a common law duty on the owner of the property to clear snow and ice from public sidewalks adjacent to the property? In my view, the answer to this question must be “No”.
As a general principle, therefore, the Court of Appeal asserted that questions of jurisdiction can determine if there is a right of action. Even if there is a statutory breach, where there is no jurisdiction for the activity alleged, the action cannot survive against the defendant. Even a breach of statute cannot create jurisdiction and a lack of jurisdiction was fatal to the case being made.
The Court held that there are two exceptions to this general principle.
1. Special Circumstances
First, a property owner may be deemed in law to be an occupier of adjacent public property if the owner assumes control of that property. Thus, in Bogoroch v. Toronto (City),  O.J. No. 1032 (Gen. Div.), the court held that a store owner who used the adjacent sidewalk to display its wares on a continuing basis was an occupier of the sidewalk and subject to the duties imposed by the Occupiers’ Liability Act.
Similarly, in Moody v. Toronto (City) (1996), 31 O.R. (3d) 53 (Gen. Div.), the court held, on a motion for summary judgment, that the owners of the Skydome in Toronto might be an occupier of the public walkways adjacent to the stadium because of the “special circumstances” relating to those walkways around games in the Dome. This would include the passage of traffic dictated by the property owner. Almost exclusive use of the walkway by Skydome patrons and a lack of alternatives to the walkways would be such “special circumstances”.
2. Flow Off Property
The second exception to the general principle that a property owner is responsible only for his or her property is that the duty of care on the owner extends to ensuring that conditions or activities on his or her property do not flow off the property and cause injury to persons nearby.
An example of a case in this category would be Brazzoni v. Timmins (City),  O.J. No. 254 (C.A.), where the court held both the City of Timmins and the Toronto-Dominion Bank liable for injuries suffered by a person who fell on snow and ice on a public sidewalk near the bank. Referring to the bank’s liability, the court said, at p. 2:
. . . the trial judge found that water flowed from the respondent’s property across the sidewalk at the time the plaintiff fell. By allowing the water from melting snow, on the roof of its building and from its parking lot, to accumulate on its property and to run across the sidewalk which was covered with snow and ice, the respondent, in our opinion, created a dangerous condition that it knew or ought to have known could cause injury to pedestrians using the sidewalk. Regardless of whether liability is based on nuisance or negligence, the respondent, in our opinion, is liable.
Neither of these exceptions applied in the present case.
The second exception in Bongiardina is very similar to the much earlier doctrine of Taylor v. Robertson supra.
Since neither of the exceptions applied to Bongiardina, the Court held that the ratepayers did not have a duty of care or jurisdiction to keep the adjacent public sidewalk clear of ice and snow.
The remaining question is whether the City of Vaughan’s by-law alters the common law picture. Again referring to Saskatchewan Wheat Pool, Dickson J. stated, at p. 223:
…where there is no duty of care at common law, breach of non-industrial penal legislation should not affect civil liability unless the statute provides for it. Neither the Municipal Act nor the City of Vaughan by-law purports to impose civil liability on the owner of property adjacent to public sidewalks. Indeed, s. 284 of the Municipal Act imposes a duty on municipalities to keep highways (which include sidewalks) in a reasonable state of repair. It is doubtful that a municipality could circumvent this duty by trying to impose a replacement duty on its own residents: see Slumski v. Mutual Life Assurance Co. of Canada,  O.J. No. 301.
Absent evidence of a clear duty of care breached by the ratepayers, there was no issue of jurisdiction under the common law. Summary judgment is granted that adjacent owners had no jurisdiction for the sidewalk in issue. The Third Party Claims were dismissed.
The Court of Appeal ratio is still good law in Ontario. It draws the line between owner/occupier and others. If it is possible to clearly define the aspects of the case and to tell a clear narrative, there then needs to be special circumstances or deliberate effect on adjacent property to provide exception. The burden of proof of either exception lies with the plaintiff.
The Court of Appeal agreed that a Rule 20 determination of jurisdiction before examinations was not premature. The motions judge accepted the connection between adjacent owners and the plaintiff’s fall was too tenuous to survive and placed the burden on the Third Party Claim plaintiff to prove the defendant’s duty.
How it is NOT Done?
Pammett v. 1230174 Ontario Inc. 2013 ONSC 2382
Decision of Justice R. Smith:
On January 21, 2009, the Plaintiff slipped and fell at the entrance of a Tim Horton’s Restaurant in the City of Ottawa. She sustained a fracture to her arm and alleged the issue was icy conditions on the curb just in front of the door of the store.
The location is a typical “Timmy’s” at the corner of a plaza parking lot. It was beside a strip mall with offices and other retail establishments. The restaurant was operated by McBride Corp, a franchisee of the Tim Hortons chain. The Defendant 1230174 (“Ashcroft”) was the owner of the land. McBride was the operator of the restaurant and tenant of Ashcroft. Variety was the snow contractor hired by Ashcroft.
The plaintiff did not understand the network of tenancies and contractual arrangements at the time of the fall. The plaintiff notified McBride as the franchisee who notified Ashcroft who notified Variety.
McBride only leased the premises from the exterior walls of the building inwards as well as a portion of a drive-thru lane adjacent to the building. The leased premises do not include the walkway, which constituted the entrance to the Tim Hortons, where the fall occurred. McBride also did not lease the parking lot area of the commercial center.
By all accounts on the contract, McBride had no jurisdiction for the accident in issue.
Ashcroft engaged the services of a winter maintenance contractor name Variety to maintain the parking lot and walkways. Ashcroft owned the walkway that was treated by Variety. On the basis of the Bongiardina doctrine more than ten years prior, McBride would have been correct to move on the question of jurisdiction before discovery and to push a jurisdiction risk transfer to the other parties, if they had been added.
Conduct of Case
Thestatement of claim was issued against only McBride. McBride defended, but did not deny it was an occupier, nor did it name either of the other entities as Third Parties or potential defendants. McBride, without trying to shift jurisdiction to another entity, brought a summary judgment motion but had gone to examinations by itself as the only defendant first.
Discoveries proceed September 2011, two years post-accident. Only McBride was discovered, as the other entities had not been added or mentioned beyond the adjuster level. No Requests to Admit had been issued and McBride relied on the fact that it was not required by contract, absent any other valid target to the plaintiff.
The discovery was the first time that the plaintiff knew that the walkway was not leased by McBride.
Discoveries proceed of McBride and plaintiff only. The following facts emerged on issue of jurisdiction:
- Customers were required to enter the store though that location;
- There is exclusive use of the walkway by Tim Hortons customers;
- Salt was applied by McBride;
- Shovel and salt were kept on site by McBride;
- McBride’s employees instructed to inspect walkway every 2 hours;
- No denial of responsibility signs were posted; and
- No witness statements were offered by McBride who claimed privilege over them.
The motion McBride brought was pursuant to Rule 20.04(2). It needed to prove there was no genuine issue requiring a trial.
McBride’s motion was unsuccessful. There were still issues of whether McBride was an occupier or whether it potentially owed the plaintiff a duty of care, even if it was not an occupier. McBride, merely by being a franchisee, had not divested itself of responsibility. No Requests to Admit had been filed. No denials were put in place. Given the admissions above, examinations did not help to clarify matters, in fact they made them far worse for McBride.
Failure to direct narrative left McBride as the only target. McBride did not attempt to limit its responsibility or to encourage any other party to intervene on its behalf. The plaintiff did not even understand that McBride was arguing it was not an occupier and so pursued McBride for the facts that would eventually were its undoing.
The case of Moody v. Toronto (City) (1996) 31 O.R. (3d) 53) was relied upon to speak to the “special circumstances” that McBride had built against itself at examinations. The ratio is that of Bongiardina supra, though McBride found itself pushed into one of the two exceptions to the general rule that otherwise would have protected it.
The reason that an adjacent owner can be liable in “special circumstances” flows from the definition of “occupier”. In Moody, supra, the court found that there were special circumstances, which made the adjacent owner a de facto occupier. Where a walkway was almost exclusively used by patrons of the owner’s venue and those people had no alternative, the existence of the business necessitated the flow of people to it. Such facts were capable of expanding the jurisdiction beyond the strict boarder, but such were the plaintiff’s onus to establish.
Given the additional facts admitted to at examinations, it is no surprise that McBride was found to have a genuine issue requiring a trial. McBride was permitted to amend its statement of defence to plead it was not an occupier, given the mandatory provision of Rule 26.01. The motion to strike was dismissed, however.
Pammett may be considered an example of what not to do to attempt a jurisdictional transfer. Not to berate the choices made at the time, the logic of which exists outside of this review, a few approaches should be avoided in dealing with such issues of jurisdiction at an early stage:
- Ensure the proper parties are added. Neither of the target defendants was ever added before examinations so there was no right to look to any party for jurisdiction or responsibility.
- Ensure the narrative begins early. Even by examinations, McBride had not advanced its narrative that it was not an occupier.
- Provide material early. Even post-examinations, McBride had not provided essential material to support its jurisdiction position. McBride kept its productions and statements close to its chest, including details of ownership responsibilities.
- Use Requests to Admit. The plaintiff eventually admitted to no knowledge of the contract or the contractual parties. They and other defendants could have been pressed to admit jurisdiction. Absent knowledge of special circumstances, a cleaner record could have been created.
- Argue jurisdiction before examinations.The examination evidence was devastating for McBride being extricated. The admissions of control and responsibility formed the case for “special circumstances” that eventually kept McBride in notwithstanding contractual evidence to the contrary.
- Ensure pleadings reflect the issues. Any amendments that should be made to raise the applicable arguments should be made first to enable the disposition of issues at first instance.
- Seek ruling on materials rather than viva voce evidence. Once the jurisdiction argument becomes a question of credibility, summary judgment is highly improbable.
The result was a more expensive process through examinations and a failure even at that point to gain enough certainty for a summary judgment motion to succeed.
As an emphasis of point one, this litigation continued after summary judgment. The plaintiff commenced a second action naming McBride, Ashcroft and Variety. The defendants collectively brought a summary judgment motion on the issue of limitations estoppel, which is granted, but for the second action only. Master McLeod dismissed the action on that issue in Pammett v. 1230174 (2014) ONSC 2447.
This resulted in the first action continuing against the defendant McBride only. Had Variety and Ashcroft been added by McBride, or the plaintiff, early, McBride would not have had to face the prospect of exclusive jurisdiction alone. Even with McBride failing a summary judgment motion, the plaintiff would have liability potentially across three targets rather than against just McBride.
McBride ends up, post-discovery and two motions later, with no other target and sole responsibility to the plaintiff.
Pammett is an excellent example of what not to do to effect a jurisdictional transfer.
The need for clear documentation of the scene:
Labancz v. Reeves 2007 Canlii 54277
The plaintiff, Maria Labancz slipped and fell on a patch of ice in a municipal laneway abutting the Reeves’ property. Both Reeves and the City of Toronto were sued in negligence.
The City admitted jurisdiction for the lane. The lane was bordered by a fence on the Reeves’ property. Through that fence there was a downspout that allowed drainage from the Reeves property into the laneway. The lane was graded in two directions towards a catch basin. The grading is designed to permit surface water to drain towards the catch basis in the lane.
The plaintiff’s evidence was that she fell on a “large bumpy patch of ice located on the laneway directly adjacent to an eaves trough downspout that was protruding through the wood fence located on the Defendants Reeves’ property.” This downspout was removed after the incident. The plaintiff produced a photograph of it in December, 2004 that showed it pouring water onto the lane making bumpy ice allegedly similar to what was observed February 2004.
The plaintiff had no knowledge of water pouring out of the downspout on the date in issue. The witness/friend of the plaintiff also made no mention of the downspout or the condition of the lane other than that the lane was “covered with ice and fresh snow”.
The police constable who was present before the fall noted ice in the laneway but nothing having to do with the downspout.
The plaintiff’s expert reports were contradictory. The first blamed surface irregularities in the laneway as a cause of improper drainage. The second report stated that ice would not have developed in the absence of surface irregularities, which impeded proper drainage. The third plaintiff report blamed “debris carried in uncontrolled storm water runoff and plan waste” as impeding draining”. This latter issue was laid at the feet of the Reeves’ property.
The defendants had no contradictory evidence that could eliminate the downspout as a cause of the ice. The defendants were silent on the issue of causation, relying on the fact that they were absentee landlords and that the plaintiff had the burden to show causation. The contradictions in the plaintiff’s three expert reports and their divergent theories were suggested by the Reeves to be sufficient to exclude jurisdiction.
Conduct of Action
The Reeves, adjacent land owners, moved for summary judgment. Reeves moved under Rule 20 and argued no genuine issue for trial, as the plaintiffs advanced no evidence that anything from the Reeves’ property caused the ice to form on the lane. They also claimed that there was no evidence of knowledge or deemed knowledge of the hazard in the laneway.
Both the City and the plaintiffs opposed the summary judgment motion.
The Court accepted that there were errors in the plaintiff’s expert reports. That there was deterioration of the laneway was directly opposed by other evidence and accepted by the Court as an “error” and “incorrect assumption” in the reports.
However, in failing to provide clear evidence of how the downspout operated, or its history, the defendants could not rebut a genuine issue, or series of issues, requiring a trial.
Questions remained for the court, which included:
- whether the downspout was improperly positioned,
- what effect that had,
- whether water was flowing from the downspout at, or preceding the time of the incident,
- whether water in some way contributed to surface irregularities on the pavement,
- whether the downspout created irregularities that interfered with the proper drainage in the lane,
- Whether the position of the downspout caused damage to the curb, which caused soil and debris into the lane.
There was clearly a jurisdiction argument to be made along the same lines as Bongiardina. However, unlike Bongiardina, the defendants did not take the time to challenge or define the facts of the incident, including their limited role in its creation.
There remained the potential for this to fall within the second exception to the rule in Bongiardina concerning flow of material that the landlords ought to have known about. Better crystallization of the facts contemporaneous with the scene, even after the event with expert reconstruction, may have challenged jurisdiction successfully.
One of the most important elements for a successful jurisdiction risk transfer is the ability to reconstruct the circumstances, including the cause of the incident. Failure to attempt such a reconstruction, by either contemporaneous documentation or expert evidence, can be fatal to summary judgment on the issue.
Successful Jurisdiction Argument
Bondy v. London City  O.J. No. 281, 2014 ONCA 291
The plaintiff slipped and fell after a freezing rainstorm. She fell on the paved portion of a boulevard abutting the city sidewalk, which was used for driveway access to the defendant Lyszczek’s property. Lyszczek had salted her driveway, but not the boulevard. Lyszczek believed it was not her responsibility to do so. The City also did not salt or plow the boulevard portion of the city driveways.
On a question of jurisdiction, the boulevard fell to the City to maintain under s. 44(1) of the Municipal Act, 2001 S.O. 2001 c. 25. It fell to the City to maintain to an appropriate standard. There was no by-law that imposed a duty upon Lyszczek to remove snow and ice form the boulevard. This by-law, even if it existed, would not relieve the City from liability imposed on it by the Municipal Act, 2001.
Lyszczek was not liable for maintenance of the boulevard as an adjacent property owner under the Occupier’s Liability Act R.S.O. 1990 c. O 2 because she did not exercise any control over the boulevard. The City met the minimum requirements contained in the Regulations. As such, there was no breach on their role either.
This matter had proceeded through multiple days of examinations and there are 50 paragraphs in the decision summarizing the evidence of the plaintiff, her common law spouse, the neighbour of the plaintiff, a forensic engineer, the City manager of operations, the defendant Lyszczek, and Lyszczek’s former common law partner.
The Court did not accept, in any event, that the Municipality could divest itself of civil responsibility by imposing a by-law on its ratepayers. Reference was made to McQueen v. Niagara on the Lake, Luta v. Toronto (1975) 8 O.R. (2d), Erskine v. City of Regina  2 W.W. R. 751 all of which upheld that proposition.
It was accepted that a failure to exert control over the area was sufficient to have the “occupier” definition of the Occupier’s Liability Act not apply to the defendant Lyszczek.
The Court went on to assess the liability against the City on the basis of the Minimum Maintenance Standards. The Court found that the City had no liability under the MMS and dismissed the case against them too. The plaintiff was shut out entirely due to one argument on jurisdiction and one on standard of care.
The case was appealed to the Court of Appeal by the plaintiff. The Court of Appeal dismissed the appeal and sustained the dismissal against both ratepayer and City. In 2014 ONCA 291, the unanimous court held there was nothing in a by-law that would make the rate payer an occupier of the boulevard. There was no specific circumstances on the facts of this case that place the respondent in “control” of the boulevard. As such, there was no separate duty of care of the ratepayer.
This was a successful and recent example of a successful jurisdictional risk transfer. This complemented the standard of care analysis that vindicated the City. However, it is also a demonstration of the added costs of treating a jurisdictional question like liability.
In this case, there were no Requests to Admit served. The costs of getting to the summary judgment level were very high. The extra costs resulted in one expert essentially finding that the boulevard was icy and examinations that proved the plaintiff fell on the boulevard. On the balance, there were conflicting and overall irrelevant views that did not affect the jurisdictional determination. None of the other evidence was worth the money spent to obtain it.
On the issue of jurisdiction, the costs thrown away could have been avoided by a Request to Admit. A clear survey of the property would have established the location to be on the boulevard and not on the ratepayer’s property. Without evidence of actual control of that boulevard, the case could have ended against the individual defendant.
The positive takeaway is that the ability to extricate a party on a question of jurisdiction continues to exist. However, it should not be left until trial to raise such an argument. Bondy was a successful demonstration of the principle of jurisdictional risk transfers, leaving the City to argue standard of care. However, such a result should have been possible without the preponderance of evidence utilized in this case.
A Request to Admit on the plaintiff, followed by one on the City would have established the same facts as accepted by the Court. It would be then the position of the ratepayer that there was no evidence of control being tendered and a short affidavit to that effect would have established what took years of litigation to obtain.
On the question of “whose risk is it anyway” Bondy answered that it was solely the plaintiff’s risk. With no recovery against either the ratepayer or the City, the plaintiff was shut out. This is a rare result at trial. As seen by the other cases in this section, the risks are high at trial that alternative questions will be asked by the Court.
If the conversation can be controlled early with careful uses of Requests to, it is possible to transfer risks and questions of standard and duty of care to other entities. While such questions can also be dealt with at trial, it is far more economical and efficient to attempt to settle such questions before examinations, lest the plaintiff muddy the waters as they did in Pammett supra.
Contrast: Harmless and Indemnity
It is helpful to understand that a jurisdictional conversation is different than a liability conversation, which is different again than a hold harmless conversation. The narratives and implications of these are each different and each have advantages, disadvantages, and variances in approach.
Purely from the practical differences between jurisdictional risk transfers and those in hold harmless, several differences help introduce the next topic and illustrate the benefits of each type of analysis. Sometimes both apply, sometimes neither, but the ability to identify and to control the narrative down whichever route is most favourable to our insured client is essential.
Hold harmless allegations or duty to defend obligations require a statement of claim, while a jurisdictional analysis does not.
In jurisdictional assessment, the role of the parties and the nature of the fault can be determined through discussions with the plaintiff prior to a statement of claim being issued. If a statement of claim is issued, it can provide some guidance, but ultimately the plaintiff will retain the right to amend the claim, subject to the Limitations Act 2002, S.O. 2002, c. 24, if a proper cause of action is not pleaded.
In a duty to defend assessment, it is important also to secure the certificate of insurance of the target defendant or the contract of the landlord in order to effect an argument at first instance that another entity owes your insured a duty to defend or to indemnify them.
Neither of these documents is needed in a jurisdictional assessment.
To Whom Directed
In practice, the two risk transfers are handled differently. In a jurisdictional analysis, the issues are taken up with the plaintiff’s counsel. This results in appeals for admissions and dismissal Orders from the plaintiff directly.
In a hold harmless situation, the focus is on the co-defendant’s counsel. Once counsel is appointed, so that the analysis can be done on that side, the matter proceeds with the issues as between defendants.
This creates a different paper focus as well. In jurisdiction, the desired objective is a dismissal Order. In hold harmless analysis, the objective is a Notice of Change of Lawyer, allowing defence counsel and the insurer to close their file, while the action continues.
This creates a different end of file process for defence counsel. In hold harmless situations, defence counsel transfer their file contents (absent materials dealing with the coverage issues) to new counsel in return for the Notice of Change of Lawyer. No file is transferred to counsel in the event of a jurisdictional transfer.
Jurisdictional defences, when successful, end the actions for the insured with a consent dismissal or a motion to strike the plaintiff’s claim. A hold harmless success, particularly in a coverage analysis, results in the insured still remaining in the action.
Remaining in may involve some representative attending examinations, a need for further affidavits and productions and answers to undertakings. The file is not closed for the insured, though it is for the insurer.
If a dismissal Order is needed in a hold harmless matter, there is a need for the adjuster or former defence counsel to follow-up with the assuming lawyer to have a further copy produced. There is often a need for some reminder for follow-up or greater expense in retrieving the final dismissal Order from the Court. While generally a minor issue, it is a practical consideration of keeping a file open to await the dismissal Order.
The advantages of a jurisdictional analysis are primarily an end of file in the traditional sense. The primary advantage of the hold harmless over the jurisdictional transfer is its ubiquity, and the ability, to protect the insured and insurer’s expense before the loss occurs, if worded right.
In conclusion, jurisdictional analysis involves directing the conversation away from issues of liability and damages and to the question of proper party at risk. To do so:
- Start the narrative early. Explain which route is being taken to plaintiff and where applicable, to the co-defendant. If the narrative on no jurisdiction is clearly set out, the plaintiff can be useful to press the co-defendant for needed admissions and to take the focus off the insured as a target.
- Offer up material early. The productions concerning role of insured, role of others, and site conditions need to get to counsel early to start that discussion. There may be times when adjusters are appointed for the co-defendant and a jurisdictional discussion can be had, and some material exchanged even before a statement of claim.
- Gather productions early. Ensure that depending on the approach, you have the other side’s certificate, our incident report, or materials to document the scene.
- Push for a transfer before examinations. Learn the lesson of Pammett not to allow your insured to muddy the waters with evidence that obscures clear.
- Control the story and help control the outcome. Do not be afraid to ask “Whose Risk is it Anyway?”