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Can An Unhappy Consumer Refuse To Pay A Car Loan?

Thursday, May 28th, 2015

The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.

In this case, Ms. McLean purchased a BMW from a BMW dealership in 2009. The purchase price was just under $110,000.

BMW Financial Services Canada financed the purchase. The financing agreement assigned the dealership’s rights entitled to the car to BMW Financial, which registered a security interest in the car in the usual manner.

Ms. McLean was dissatisfied with the vehicle. She returned to the dealership for service a number of times. Ultimately, she made a unilateral decision to return the car to the dealership in late 2010 and stopped making payments to BMW Financial.

BMW Financial sold the car at an auction for less than the amount owing on the loan and sued Ms. McLean for the balance owing of about $41,000 plus interest at 18 percent.

Ms. McLean defended the action, in part, on the basis that the dealership had made false and misleading representations to her that had induced her to buy the car. She argued that the relationship between the dealership and BMW Financial was a close and continuing one and as a result, she should be able to raise defences available against the dealership in the action brought by BMW Financial.

BMW Financial moved for judgment. The motion judge concluded that the dealership and BMW Financial were separate entities, independent from each other with nothing more than the trade name “BMW” common to them.

Ms. McLean appealed to the Court of Appeal. The Court of Appeal agreed with the motion judge and dismissed the appeal.

The reasoning in the case is straightforward and not particularly surprising. An unsophisticated consumer might assume that the presence of the BMW name in the name of the dealership and the name of the financing entity would indicate a connection such that one of them might be held accountable for the wrongdoing of the other. Clearly, that is not the case. Presumably it would have been open to Ms. McLean to assert a third-party claim against the dealership when she was sued by BMW Financial so that she could raise her arguments and complaints about the pre-contractual misrepresentations in that manner. There is no indication in the case that such an approach was made or even considered. Nevertheless, for at least some people, this case may illuminate the important distinction between dealerships and the financing arms of auto manufacturers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

BC Court Of Appeal Clarifies Limits Of “Rescuer” Law

Wednesday, May 27th, 2015

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

The law recognizes that if a person’s negligence puts one in peril, a rescuer injured in the course of rescue can claim damages against the person who created the peril.  Reasons for judgement were released today by the BC Court of Appeal discussing the scope of rescuer law.

In today’s case (Ray v. Bates) the parties were involved in a motor vehicle collision in icy conditions.  The Plaintiff claimed the collision was caused by the Defendants negligence.  Following the collision the Plaintiff slipped and fell while walking with the intention of asking first responders to contact road maintenance authorities to get the icy road salted or sanded.

The Plaintiff argued the Defendant was responsible for the slip and fall as he was acting as a ‘rescuer’ at the time.  In upholding a trial dismissal of the claim the BC Court of Appeal provided the following reasons addressing the scope of the rescuer principle:

[14] The rationale for special treatment of rescuers is that where a person’s negligence puts another person (or him/herself) in peril, it is entirely foreseeable that a bystander will react by attempting to eliminate the peril. The classic statement of the doctrine is that of Cardozo J. in Wagner v. International Railway Co. (1921), 232 N.Y. Rep. 176 at 180, 133 N.E. 437 at 437-8:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer…. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.

[15] In Videan v. British Transport Commission, [1963] 2 Q.B. 650, at p. 669, Lord Denning, M.R. said:

Whoever comes to the rescue, the law should see that he does not suffer for it. It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it.

[16] These pronouncements were cited with approval by the Supreme Court of Canada in Horsley v. MacLaren, [1972] S.C.R. 441 at 444 and 467, and in Corothers v. Slobodian, [1975] 2 S.C.R. 633 at 638‑9 and 640‑41. They were also cited in Martin v. American International Assurance Life Co., 2003 SCC 16.

[17] In Toy v. Argenti (1980), 17 B.C.L.R. 365 at 371-2, Esson J., as he then was, adopted statements describing the contours of the rescuer doctrine by Lord Jamieson of the Scottish Court of Sessions (Inner House) inSteel v. Glasgow Iron and Steel Company, [1944] S.C. 237 at 267:

[T] he following propositions … may be extracted …: (1) The intervention of human action does not necessarily per se break the chain of causation between the negligence and the injury sustained. (2) To entitle the sufferer to damages, such intervention must have been reasonable and such as might have been in the contemplation of the wrongdoer. (3) In determining what is reasonable in the circumstances the interests sought to be protected must be measured in comparison with the risks involved in the action taken. (4) If the action taken is reasonable, the injured person will not be debarred from recovering damages by his not having adopted the best possible course in the circumstances, or by his having made a mere error of judgment: but he will be debarred if his action is unreasonable and unwarrantable and outside the exigencies of the emergency: and (5) It is not essential that the action should have been taken on the impulse of the moment. The same result will follow if it arises from a natural response to avert danger after time for deliberation on the consequences of the risk taken.

To these I would add that, as the instinct to save human life is greater than the instinct to save property, a hazardous intervention for the former purpose is more likely to be a natural and probable consequence of a negligent act than one for the latter, and in the reasonable contemplation of the wrongdoer.

[18] While Steel was not a common law case, I accept, as did Esson J., that the propositions referred to are also applicable in the common law.

[19]There are a number of British Columbia cases in which plaintiffs have attempted to recover for slip and fall injuries that occurred while walking along roads in the aftermath of motor vehicle accidents. In Goodman v. Baxendall (1991), 8 B.C.A.C. 144, the plaintiff was involved in a motor vehicle accident on a hill. After the collision, in order to warn approaching traffic that there were stopped vehicles on the highway, she walked up the hill, but slipped and fell, resulting in personal injury. The trial judge denied recovery, holding the injury was not caused by the defendant’s negligence. This court allowed an appeal, saying at 146-7:

[T]he proper approach here is to ask whether it was reasonably foreseeable that following an accident such as this and in these circumstances someone ought to walk up the roadway, and would walk up the roadway, to warn oncoming traffic of the danger of the vehicles on the roadway over the crest of the hill and, that being so, was it reasonably foreseeable that in those conditions that person could slip, fall and sustain further injury? The trial judge found the plaintiff walking up the highway was a sensible thing to do. That being so, in my opinion it follows that what happened here was reasonably foreseeable as a consequence of the negligence of the driving of the defendants and they are, as a result, responsible in law for this slip and fall and the consequent damages.

[20] On the other hand, in Schlink v. Blackburn (1993), 109 D.L.R. (4th) 331 (B.C.C.A.), the plaintiff’s wife was involved in a motor vehicle accident outside their home. The plaintiff ignored the accident until he learned that his wife was involved, at which time he rushed out of his house, tripping on the way out and injuring his ankle. The trial judge awarded damages, treating the case as a rescue case. This court disagreed, saying at 339:

This is not a “rescue case” any more than it is a “nervous shock” case. There is no evidence of danger, escape from entrapment, risk of death from delayed treatment or otherwise which would support such a classification. Accordingly, the “rescue case” authorities cited to us must be distinguished along with the authorities dealing with “nervous shock” cases.

[21] Finally, I will refer to Bridge v. Jo (1998), 53 B.C.L.R. (3d) 338 (S.C.), in which a woman went to assist a person involved in a motor vehicle accident. After attending on the accident victim, she concluded that she should call an ambulance. While walking down the icy road toward her home to do so, she slipped and fell. Mr. Justice Boyle found that it was reasonably foreseeable that the defendant’s negligence would result in an injury to a rescuer, and found for the plaintiff.

[22] In rescue cases, the law does not find the chain of causation to be broken by the rescuer’s actions because they are considered to be foreseeable consequences of the peril created by the negligence. In order for a plaintiff to bring him or herself within the principles applicable to rescue cases, therefore, the plaintiff must demonstrate that his or her actions were motivated by a reasonable perception of a peril that was caused by the defendant’s negligence.

[23] In my opinion, the plaintiff fails to meet this requirement in two respects. First, the plaintiff could not reasonably have perceived a peril in the circumstances of this case. Everything was under control, and there was no reason to believe that road maintenance authorities had not been advised of the situation. This is what the judge meant when he said “Whatever else may be said of the plaintiff’s decisions, it cannot be said that he needed to walk to the ambulance to summon road maintenance personnel when all of the emergency personnel described were already in attendance.” He was not applying a standard of necessity in rescue cases, but rather was making a finding that there was no purpose to be served by the plaintiff walking on the road.

[24] The plaintiff’s claim to be a “rescuer” in this case must also fail because any peril that the plaintiff was attempting to alleviate was one that was unconnected with the accident. This was not a case (like Bridge) where the plaintiff was attempting to assist a victim of the accident, nor was it a case (like Goodman) where he was attempting to reduce the danger posed to other drivers by the detritus left by the accident. The plaintiff was attempting to contact road maintenance officials to deal with the slipperiness of the road. That problem was purely a product of weather conditions, and not of the accident.

Insurance giant refuses to pay after heart attack

Tuesday, May 26th, 2015

By Geoff Kirbyson, Winnipeg Freepress

Man sues, says broker omitted diabetes info from forms

Alfredo D’Agui, the owner of a downtown hair salon, is suing Great-West Life — Manitoba’s biggest company — after his $100,000 critical-illness insurance policy was declared null and void, despite having been approved two years earlier.

Alfredo D’Agui is not afraid of suing Great-West Life because, ‘I’m right and they’re wrong.’ 

D’Agui’s broker, Grant Page, and Page’s company, Financial Heights, are also named in the lawsuit. None of the allegations has been proven in court.

D’Agui alleges Page intentionally misrepresented his answers on the critical-illness questionnaire so the application would be approved and Page would collect commissions on the sale.

According to a statement of claim filed last week, D’Agui went to see Page at his office in June 2013 to apply for the critical-illness policy. As part of the required paperwork, D’Agui told Page he had Type 2 diabetes but did not require insulin. He described himself as a “borderline diabetic” who was taking medication for the condition.

D’Agui alleges although he told Page about his diabetes, Page did not properly record the information on his application.

Upon finishing the questionnaire, D’Agui alleges Page told him he was unsure whether his application would be approved. Within a few weeks, however, D’Agui says he received the news his application had gone through.

The trouble began more than a year later when D’Agui suffered a heart attack. Luckily, he thought, that was one of the conditions covered by his insurance. But when he applied for his benefits, Great-West told him it had nullified his policy due to “material misrepresentation” of not informing the company he had diabetes.

“I was devastated, quite panicked and emotionally shot. I was speechless for days. How would you feel if you felt you were safe and secure and the rug was pulled out from underneath you? I almost felt like I was going to have another heart attack. I felt I was screwed over, taken advantage of and lied to,” D’Agui said in an interview.

The fact Great-West sent him a cheque just a couple of days later for nearly $5,000 to return the premiums he had paid was no consolation.

“It was like they had the cheque ready,” he said.

D’Agui’s lawyer, Dave Hill, said the case is similar to a recent one involving Great-West Life. In December 2013, a Manitoba court found Great-West Life was responsible for the actions of a former broker, Gary Palmer, who bilked nearly two dozen clients out of $1.5 million. Palmer was sentenced to eight years in prison.

Hill said the crucial similarity between the two cases is the role of the company’s agent.

A spokeswoman for Great-West Life says the company does not comment on matters before the courts. A statement of defence has not been filed.

D’Agui said he’s not intimidated facing off against one of the giants of Canada’s financial services industry.

“I’m right and they’re wrong,” he said.

Tow, tow, tow your boat and insure it

Thursday, May 21st, 2015

By Susan Ladika | 

Millions of fishermen, sailors, paddlers, campers, bicyclists and dirt-bike riders are breaking out their summer gear. A lot of them will hook up a trailer to haul it.

But many of them risk losing their expensive toys.

Although the liability insurance on your automobile will cover your trailer while it’s being towed, that’s not the case with other . Your vehicle’s collision and comprehensive coverage won’t kick in to cover your trailer if something happens to it while you’re hauling it down the road.

You’ll likely need specific boat, travel trailer or personal watercraft insurance to make sure they’re covered while you’re en route to the local lake, nearby ocean or national park.

“If it’s a boat or travel trailer that you’re towing, then to have it covered for damages, you’d need specific coverage just for that item,” says Penny Gusner, consumer analyst at

Towing is risky business

If you’re towing any kind of trailer, you also need to be sure to understand how to hook it up properly. “As long as the item became unhitched while your vehicle was in motion, your car insurance should extend to the accident in caused,” says Gusner, but she recommends talking to your insurance agent to make sure your general liability coverage extends to your trailer.

Each year, motorists are killed when trailers come lose and go hurtling down the road.

The National Highway Traffic Safety Administration (NHTSA) reports that nearly 400 people were killed in traffic accidents involving a passenger vehicle towing a trailer in 2012. The number includes both people killed when trailers came unattached, as well as other accidents involving trailers.

Between 2002 and 2012, more than 4,500 people were killed in wrecks involving trailers, with more than 500 killed in 2005 alone.

Takata to declare 33.8M air bags defective; largest auto recall in US history

Wednesday, May 20th, 2015

By Tom Krisher


DETROIT — Air bag maker Takata Corp. has agreed to declare 33.8 million of its inflator mechanisms defective, effectively doubling the number of cars and trucks that have been recalled in the U.S. so far.

The announcement was made Tuesday afternoon by the National Highway Traffic Safety Administration, which reached an agreement with Takata after sparring with the company for the past year over the size of the recalls and the cause of the problem with millions of air bags. It will be the largest recall in the agency’s history.

Many of Takata’s air bags can explode with too much force, blowing apart a metal canister and sending shrapnel into the passenger compartment. The air bags are responsible for six deaths worldwide and more than 100 injuries.

Ten automakers, including Honda Motor Co. and Toyota Motor Corp., have recalled 17 million vehicles in the U.S. and more than 36 million worldwide because of the problem. Those numbers will grow by millions because of the agreement, but it’s unclear which manufacturers will be most affected by the expanded recalls.

Automakers must conduct recalls even if they are for defective parts.

The Takata recall dwarfs last year’s highly publicized recall of 2.6 million General Motors small cars for defective ignition switches.

ICBC warning: Five cyclists injured every day during B.C. summer

Wednesday, May 20th, 2015

Source: ICBC

As we near Bike to Work Week (May 25 to 31), ICBC is urging drivers to watch out for cyclists as crashes involving cyclists’ peak in summer when ridership increases.

In B.C., 670 cyclists are injured and six are killed in car crashes from June to September every year. That’s five cyclists injured every day in the summer in B.C.*

Distracted driving and failing to yield the right-of-way are the top contributing factors for drivers involved in crashes with cyclists in B.C.**

Tips for drivers:

  • Actively watch for cyclists on the road. Make eye contact with cyclists whenever possible to let them know you have seen them.

  • Shoulder check for cyclists before turning right and watch for oncoming cyclists before turning left.

  • Before you or a passenger opens a vehicle door, shoulder check for cyclists coming from behind. Before you pull away from the curb, make sure you shoulder check for cyclists.

  • If you need to cross a bike lane to turn right or to pull to the side of the road, signal well in advance and yield to cyclists.

  • If you’re entering the roadway from a laneway or parking lot, always scan for cyclists and other road users.

Tips for cyclists:

  • Plan your route before you go, give yourself plenty of time and choose bike lanes and paths where possible. If you’re new to cycling, pick routes with less traffic. Google Maps can help you plan your cycling route and municipalities often have great maps of bike routes on their websites.

  • Be aware of what’s going on around you at all times and scan ahead for hazards like potholes, gravel, glass and drainage grates. Watch for vehicles entering the roadway from laneways and parking lots.

  • When turning, shoulder check well in advance, hand signal and then, with both hands on the handle bars, shoulder check again before turning.

  • Ride at least one metre away from parked vehicles to avoid being hit by an opening door or a vehicle pulling into your lane from the curb. Use caution if you notice someone in the vehicle.

  • It’s illegal to cycle on most sidewalks and in crosswalks. It puts pedestrians in danger and drivers don’t expect cyclists to enter the roadway from a sidewalk.

  • When riding at dusk, dawn or at night, your bike must be equipped with a white headlight visible at 150 metres and a rear red light and reflector visible at 100 metres. Consider adding more lights to be even more visible.

Regional statistics:

  • In the Lower Mainland, on average, 450 cyclists are injured and three killed from June through September every year.
  • On Vancouver Island, on average, 120 cyclists are injured and two killed from June through September every year.
  • In the Southern Interior, on average, 70 cyclists are injured and two killed from June through September every year.
  • In the North Central region, on average, 20 cyclists are injured from June through September every year.


“As more cyclists are on our roads during the summer months, both drivers and cyclists need to be aware and watch for each other at all times,” said Todd Stone, Minister of Transportation and Infrastructure. “We all need to do our part so that B.C. roads are safe for everyone.”

“Cyclists are more at risk of serious injuries in car crashes,” said Chief Officer Neil Dubord, Chair of the B.C. Association of Chiefs of Police Traffic Safety Committee. “That’s why it’s the law for cyclists to wear an approved helmet regardless of how far they’re travelling. Drivers should check for cyclists especially before turning, opening their vehicle doors or pulling away from the curb.”

“In B.C., nearly four out of five car crashes with cyclists happen at intersections,” said Lindsay Matthews, ICBC’s director responsible for road safety. “These crashes and their devastating impact on our communities are preventable. Whether you’re driving or cycling, watch for other road users and do your part to share our roads safely.”

*ICBC (injury) and police (fatality) data from 2009 to 2013.

**Top contributing factors assigned to drivers in car crashes in B.C. involving cyclist injury or fatality based on 2009 to 2013 police data.

Note annual cyclist crash data by city/community is also available.

10 Reasons Your Visitors to Canada Need Travel Insurance

Tuesday, May 5th, 2015

TORONTO/CNW/ – With warm weather comes an influx of visitors to this great nation of ours. The second largest country on earth, Canada certainly has a lot to offer: gorgeous views to photograph, a variety of outdoor activities to enjoy, and lots of opportunities to travel without even leaving the country.

Did you know that a large portion of travellers to Canada happen to be our very own family and friends from afar? Of the 16 million tourists in 2012, almost half were here to visit loved ones! If you are one of the many Canadians looking forward to a visit this summer, travel insurance should definitely be on your list of things to buy before their arrival. Not sure why? Keep reading for the 10 reasons your visitors need Visitors to Canada travel insurance…

  1. Medical care in Canada is expensive – Your visitors will need at least $50,000 in coverage for emergency medical expenses.
  2. Super Visa applicants need ‘super’ insurance – The Canadian government requires these travellers to have health coverage which is: (1) a minimum of $100,000, (2) good for at least one year, and (3) Canadian.
  3. Visitors to Canada insurance isn’t just for travel to Canada – It also covers side trips to other countries, including the US.
  4. Visitors to Canada insurance isn’t just for visitors – It is also suitable for new Canadians who are awaiting health care coverage and returning Canadians whose provincial coverage has lapsed.
  5. Plans include some benefits visitors may not expect – Coverage for physiotherapists, chiropractors, acupuncturists, and other specialists (when treatment is related to the initial emergency).
  6. Plans can cover stable pre-existing medical conditions – And no medical questionnaire is required.
  7. Plans can cover a variety of amateur sports – Water skiing, mountain climbing, hiking, jet skiing, and more!
  8. Coverage begins when visitors leave their home country – They’re covered while en route to Canadaand while travelling back to their home country.
  9. It’s best to purchase travel insurance prior to their arrival in Canada – A waiting period may apply if coverage is purchased after arrival.
  10. You can save on Visitors to Canada insurance – Choose a higher deductible, ask for family rates, and always compare plans to see which has the best coverage at the best price.

Your loved ones need travel insurance. And it is much simpler if you purchase it from a Canadian company in advance of their trip. Why? Because Canadian coverage is more comprehensive, and Canadian insurers know the ins and outs of our health care system.

While you wait for your visitors to arrive, feel free to visit our website to learn more about our Visitors toCanada plans.

Source: Canada NewsWire

Beware of Heavy Truck No Zones

Friday, May 1st, 2015

I first wrote about drivers whose behaviour in the “no zone” around heavy trucks left much to be desired back in 2004. Little seems to have changed since then as when I listen to the trucking radio channels the most common complaint involves drivers who jam themselves in front of a truck and then slow down. There are many possible outcomes to this scenario when it goes wrong; the trucker is able to swerve out of the way and nothing happens, the trucker swerves out of the way and harms themselves or perhaps the trucker chooses to maintain course and harms the foolish driver.

A heavy commercial truck may have as little as 60% of the braking capacity of a car or pickup truck. This essentially means that once the brakes are applied, the big truck takes twice as long to stop as you do. Air brake systems can take more time between pressing the brake pedal and the braking components starting to do their job than your hydraulic brakes. You can extend the stopping distance even further if all of the heavy trucks brakes are overheated, not in good condition or properly adjusted.

Do you still think that it’s a good idea to get close to the front bumper of a big truck and hit your brakes? Self preservation might dictate that you slow down, lane change behind the truck and then make your right turn or use the exit. If you are continuing straight ahead check traffic conditions ahead before you change lanes and either avoid having to brake or have a light vehicle behind you instead.

While we’re on the topic of the No Zone, there are many other bad places to be as you cruise alongside or behind a large commercial vehicle. If you cannot see the driver in his mirrors or through any of his windows, he cannot see you! Being invisible to a trucker is definitely not what you want to be. A fender bender for the truck could be a catastrophe for you.

Reference Links:

Cst. Tim Schewe (Ret.) runs DriveSmartBC, a community web site about traffic safety in British Columbia. For 25 years he was an officer with the Royal Canadian Mounted Police, including five years on general duty, 20 in traffic and 10 as a collision analyst responsible of conducting technical investigations of collisions. He retired from policing in 2006 but continues to be active in traffic safety through the DriveSmartBC web site, teaching seminars and contributing content to newspapers and web site