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Why you pay out of pocket for flood damage and other things to know about disaster insurance

Sunday, May 14th, 2017

Lawyer Josiah MacQuarrie answers some key questions about property protection from environmental damage

Did you know most insurance policies don’t include ‘overland’ flooding? CBC posed viewer questions to insurance lawyer Josiah MacQuarrie about nebulous policy language, ageing infrastructure and more.

1. Too much rain causing indoor puddles? You’re probably not covered.

“Your typical insurance policy excludes ‘overland flooding,'” said MacQuarrie.

The term refers to what we’re seeing now in Quebec and Ontario, with water damage caused by rainfall, swollen rivers and rising water tables.

Most people don’t know that overland flooding is an add-on, MacQuarrie explained.

Clients usually need to pay more in an additional policy to protect themselves against this type of water damage, which insurers view as foreseeable and preventable with proper home maintenance.

To qualify for most basic coverage, the source of the water damage needs to be unexpected, like a broken dishwasher or burst pipe.

But the “natural ingress” of water — like the kind you get when your foundation starts leaking — typically isn’t covered, said MacQuarrie.

WEA CDA Flooding 20170508

Volunteers fill sandbags in the town of Hudson, Que., west of Montreal, following flooding in the region. (Graham Hughes/The Canadian Press )

2. Climate change is making floods more likely.

Extreme weather claims in Canada have gone up 400 per cent in the last eight years, said MacQuarrie.

And insurance companies are prepared. “The insurance industry has been seeing this for some time,” he added.

In the face of a changing climate, insurance providers are devising strategies to deal with extreme events like floods by evaluating the kinds of products they offer and how they handle claims.

MacQuarrie says more weather events mean more claims are paid — which probably mean higher premiums in the long run.

3. If you live in a flood plain, you’ll pay a lot more.

The trick is to know you’re buying in a flood plain before making a down payment. But what if you already live in a place prone to floods?

For some that live in high-risk areas and want overland flood insurance, “you’re going to pay a lot for it,” said MacQuarrie. “It may be that the cost is just prohibitive.”

WEA CDA Flooding 20170508

The Pierrefonds district of Montreal is seen after widespread flooding across the region. (Paul Chiasson/The Canadian Press )

4. Once the flooding stops, a lot of people will find they’re uninsured.

“It’s tragic,” said MacQuarrie, but many people will discover their policies don’t cover flood damage — or the costs of shelter from fleeing their homes — in the coming days and weeks.

That means many will be looking to their provincial government for help.

It’s possible that disaster relief payments may depend on whether or not a home is insured, as they did in Windsor, Ont. last fall, when heavy rainfall caused widespread basement flooding.

Aid to impacted people in Windsor was dispensed on a case-by-case basis, and there were different options for homes that had insurance and those that didn’t.

But the guidelines from Public Safety Canada, the federal body that provides disaster relief funding to the provinces for distribution, state that insurable property isn’t eligible for reimbursement.

“Insurable,” according to the guidelines, means that “insurance coverage for a specific hazard for the individual, family, small business owner or farmer was available in the area at reasonable cost.”

WEA CDA Flooding 20170508

Canadian Forces personnel wade through the flooded streets in Deux-Montagnes, Que. (Ryan Remiorz/The Canadian Press )

5. Insurance companies aren’t evil. But they are businesses.

While insurance providers are “in the business to make a profit,” according to MacQuarrie, they’re also obligated to pay claims under the legal terms of their policies — meaning that if it’s on paper, they’ve got to pay.

But confusion arises when clients misunderstand their coverage.

MacQuarrie cautions renters and homeowners to check their policies carefully, and seek help from a licensed broker if they’re having trouble understanding the language.

“There’s an obligation on people who purchase insurance to know what’s covered and what isn’t,” he said. “Whether or not the average person is going to sit down and read their policy cover to cover? It’s unlikely.”

6. Renters need coverage, too.

Just because you don’t own that condo doesn’t mean you get to skip insurance bills.

Tenants can purchase contents insurance to cover water damage to their furniture, electronics and other valuables.

“It’s certainly something that anyone who is renting a property should be looking into,” MacQuarrie said.

7. Different types of damage aren’t equal.

It’s a costly distinction, and one made regularly by insurers. Why are some kinds of damage covered, but not others?

Higher-risk items often get removed and are offered as add-ons instead, according to MacQuarrie.

Without those distinctions, basic premiums would be too high to remain competitive, he explains.

“If every possible loss was covered on a homeowner’s policy, the typical person probably couldn’t afford insurance.”


Most policies don’t include ‘overland flood insurance’ – even if they do, there are limits

Sunday, May 14th, 2017

By Kate McGillivray, CBC News

Increasingly severe weather in Canada has made for changes in home insurance that could leave homeowners unprotected if their house is damaged in a flood.

The first thing to know: most home insurance policies don’t include flood insurance at all, explained Pete Karageorgos, director of consumer and industry relations with the Insurance Bureau of Canada.

Since about 2013, when Toronto experienced a record-breaking stormthat flooded hundreds of basements, insurance companies have begun offering overland flood insurance, “typically as an add-on,” said Karageorgos.

In other words, if you didn’t sign up for it, it’s likely you don’t have it.

Karageorgos points to a 2016 flood in Windsor and Tecumseh, Ont., to illustrate how expensive flooding can be for homeowners — and how common it is for people to be caught unaware by their lack of coverage.

“In many cases there weren’t policies that had flood insurance, and those that did, there were usually limits,” he said.

One Windsor resident’s house sustained about $50,000 of damage, but his insurance policy only covered one-fifth of that.

Residents in Windsor and Tecumseh, Ont. were forced to do a major cleanup after a record rainfall in 2016. (Amy Dodge/CBC)

Don’t be fooled by wording, cautions Karageorgos: many policies might list coverage for water damage, but that refers to incidents like burst pipes or overflowing toilets, not severe weather and flooding.

He said homeowners should also be aware that if water is entering the basement by a crack in the foundation, for example, it falls under the category of seepage and could signal a maintenance issue that would also prevent an insurance payout.

Few Canadians know their flood risk

The introduction of overland flooding insurance to the Canadian market is having another effect, said Jason Thistlethwaite, director of University of Waterloo’s Climate Change Adaptation Project: Canadians are less likely to qualify for federal government disaster assistance.

Federal legislation, he explained, stipulates that if “insurance is readily and reasonably available,” then you don’t qualify for disaster assistance — even if you never actually purchased the insurance, or didn’t even know it existed.

“That language is interpreted differently by the provinces, but it’s confusing and it’s inconsistent, and it can be taken advantage of in the aftermath of a flood event,” he said.

Thistlethwaite is concerned that few Canadians have been given the opportunity to opt into overland flood insurance and that many are confused about what their policies cover.

A City of Toronto investigation into the next 50 years of weather predicted increasingly intense rainfall, meaning floods like the one in 2013 might become more common. (Frank Gunn/Canadian Press)

His university conducted a survey of 2,300 Canadians about how they perceived flood risk, finding that 70 per cent of respondents had not been approached by their insurance provider about overland flood insurance.

They also found very few homeowners saw themselves as being at risk or knew if they were covered or not, “despite the fact that we know for the next 50 years that flood risk is going to increase.”

There’s a small silver lining though, at least if you live in Ontario — the provincial government is available to provide some disaster assistance.

“What Ontario has said is that their disaster assistance programs will cover costs that are not covered by insurance,” said Thistlethwaite.

But that won’t mean restoring your home to its previous lustre. “This is bare minimum replacement costs,” he said.

“There’s an incredible amount of paperwork, red tape and delays. … It pays to call up your insurance company.”

Problem will get worse, so be prepared

Extreme weather is expected to increase substantially in the next half-century, leading Karageorgos and Thistlethwaite to urge that people review their policies carefully and take steps themselves to protect from flooding.

Short-term actions to mitigate damage include pointing downspouts away from the house foundation, taking valuables out of the basement, and making sure sump pumps are working and that you have a backup in case the power goes out.

Thistlethwaite also recommends a list of large-scale actions including renovating with flood-resistant materials and raising the electrical box or heating materials to the second floor.

If all that sounds expensive, consider the cost of extreme weather in Canada so far.

Between 1983 and 2008, natural disasters cost about $100 million, said Karageorgos. Since 2009, “it’s gone up 400 per cent.”

As a result, he said, insurance premiums have risen as well, which, along with increasingly severe weather, is something Canadians will just have to get used to.


Avoid driving in flooded areas and respect the power of water, ICBC advises

Sunday, May 14th, 2017

With the threat of more flooding in parts of B.C. this week, ICBC is urging drivers to be cautious in and around flooded areas.

ICBC recommends finding a safe location on high ground for the temporary storage of vehicles and seasonal vehicles such as motor homes, trailers or snowmobiles located in low-lying areas that may be subject to flooding. Customers must ensure that vehicles are properly licensed and insured before they’re operated on any road or highway. Customers can purchase temporary operation permits from any Autoplan broker. Do not store valuable goods or household items in your vehicle as these items are not covered by vehicle insurance.

Here are ICBC’s top tips for drivers in and around flooded areas:

  • Floodwaters can quickly wash out roads and bridges. That’s why it’s important to be prepared and plan out an alternative route in case the road you want to use is closed. Check drivebc.ca for the latest road conditions and Emergency Info BC for up-to-date flood information.

  • If you find yourself on a road that’s flooded or marked closed, don’t continue. Turn around and use another route.

  • If you have no choice but to drive into water, drive slowly and cautiously. Watch carefully for signs of a moving current that may impact the safety of the road ahead. Respect the power of water.

  • Think about what you can’t see – hazards such as submerged trees or downed powerlines that may be in the water. If in doubt, don’t proceed.

  • After driving through deep water, always test your brakes. They may pull to one side of the other or they may not work at all. You can dry the brakes by driving slowly and applying brake pressure lightly. Other parts such as emergency brake cables, axels and electronic components should be dried and checked by a qualified professional as soon as possible.

  • If your vehicle stalls on a flooded stretch of road, be prepared to abandon it and retreat to higher ground.

  • Don’t try to retrieve vehicles from flooded areas until it’s safe. Wait for the water to recede.

  • If your vehicle’s engine has even been partially immersed in flood water, don’t try to start it. Qualified professionals should check all operating systems and fluid levels to prevent possible future problems.

ICBC’s optional comprehensive or specified perils coverage provides customers with protection for vehicle damage caused by rising water. Customers can report a claim online at icbc.com or by calling ICBC’s Dial-a-Claim at 604-520-8222 or 1-800-910-4222.

If you’ve been placed on evacuation alert, take a few minutes to pack all of your important documents including your B.C. driver’s licence and/or B.C. services card/B.C. identification card, passport, original birth certificate, marriage certificate and Canadian citizenship document. Protecting these valuable documents will spare you from having to replace them.  It’s also a good idea to have a copy of your vehicle registration and Autoplan insurance policy.

As it’s national Emergency Preparedness Week, now’s a good time for drivers to make sure they have an emergency kit in their vehicles, especially when travelling on longer trips.


Would you trade privacy for cheaper car insurance? Some Canadians do

Sunday, May 14th, 2017

Excerpted article was written By Yvonne Colbert, CBC News

It is billed as a way for vehicle owners to reduce their insurance rates, and measures everything from braking practices to speed in order to reward good driving habits.

Even so, Steve Carver has no interest in attaching a telematic device to his car, calling it “an invasion of privacy.”

His long-time insurance company offered him one after he questioned why his rates went up last year, despite a clean driving record and a single claim years ago for a windshield.

“I said, ‘I’ve been with your company all these years and you’re treating me like a criminal,”‘ said Carver, who lives in Blockhouse, N.S., and has been with Intact Insurance for two decades. “I don’t think it’s right.”

A telematic device is a small gadget that plugs into the port of a car and measures driving habits such as hard braking, acceleration, speed, distance travelled, time of day and, in some cases, location.

The move toward them is called usage-based insurance. The Insurance Bureau of Canada said it expects more and more insurance companies to start offering telematic devices to their customers.

This is the telematic device offered to some Allstate customers to track their driving habits. (Allstate)

‘Potential to be very intrusive’

Privacy lawyer Nancy Rubin said it’s a way to reduce rates for people who are good drivers, but they still need to be fully informed.

“It has the potential to be very intrusive,” Rubin told CBC News, adding it is important customers understand what they are consenting to when they agree to use the device.

“The consent has to be express and it has to be plain-language consent,” Rubin said. “People have to understand what they’re giving up when they sign over their privacy.”

Under both federal and provincial privacy legislation, consumers must consent to the type of personal information that’s being collected, how it’s being used and to whom it’s being disclosed.

Companies can retain information only as long as is necessary and then must destroy it. Consumers must have the opportunity to opt out or change their consent.

Allstate collects information on when people drive, how far they drive and their speed. (Robert Short/CBC)

Telematic devices generally transmit information to a third party, which then forwards it to the insurance company.

Rubin said the devices do not differentiate between drivers, so insurance companies “don’t know if it’s you or your teenaged son out driving, so what may happen is that your rating is influenced by the unsafe driving habits of your son.”

Another concern is who has access to the data and how it is protected from hacking.

‘Innocuous’ information, says company

But Glen King, the director of product development for Allstate Insurance Canada, said the information being collected is “largely innocous.”

“It’s not going to harm anyone if it was lost and there’s no chance that’s ever going to happen,” he said.

Allstate collects information on when people drive, how far they drive and their speed, King said, adding the company’s devices do not use GPS to track locations. Allstate started offering the devices to some of its customers in Ontario in 2014. It expanded the program to Alberta in 2016.

“The intent was to put power into the hands of drivers and to reward those who practise safe driving behaviour with lower insurance premiums,” King said.

Potential big discounts for users

Allstate offers an immediate upfront discount of 15 per cent to Alberta customers who agree to use the devices for six months. Users are eligible for as much as a 30 per cent discount in their premiums at renewal time, based on their driving habits.

Users can log on to a secure website and see what discount they’re in line to receive.

King won’t disclose how many customers have agreed to use the devices, but said 70 per cent of them are “earning some form of discount.”

Rubin said consumers need to ensure that the information collected is only used for the designated purpose of reducing rates, not penalizing drivers.

“If it’s used to underwrite and give you a policy, [ensure] it’s not going to be used the other way to deny you that policy or for claims purposes,” she said.

In Nova Scotia, the Utility and Review Board regulates insurance companies. A spokesperson said its approval of telematic devices includes a no harm-no foul clause, which prohibits insurance companies from penalizing people whose driving habits are questionable.

Allstate maintains there’s no downside for drivers.

“We will never raise anyone’s rate as a result of driving in the program,” King said. “We’re not ever going to increase someone’s rate because they participated. You’re either going to earn a discount or you’re going to discover there are more opportunities to improve your driving.”

Courts can compel insurers to turn over info

However, Rubin points out that while insurance companies agree to follow privacy rules in the event of an accident, it’s possible they could be compelled by the courts to turn over the telematic data.

“If it hadn’t been collected, it didn’t exist and it wouldn’t be there to be accessed. It’s now available to be accessed so it may come back to haunt you in a way you didn’t expect,” she said.

She uses the example of someone who was in an accident and said they were going under the speed limit when in fact the data shows they were speeding.

Amanda Dean, vice-president Atlantic for the Insurance Bureau of Canada, said the solution for people like Carver who feel the device is intrusive is simple.

“They don’t have to use them,” she said, pointing out participation is strictly voluntary and people can shop around for their insurance.

That’s exactly what Carver is doing.

“I just don’t want to have it, plain and simple,” he said.


‘Water is the new fire’: National strategy needed for flooding, says insurance expert

Sunday, May 14th, 2017

“Water is the new fire,” declared Pete Karageorgos, director of consumer and industry relations with the Insurance Bureau of Canada.

“Insurers are paying out more with regards to water damage claims than fire damage — even though home insurance really started out as a fire protection policy.”

Since 2009, Canadian insurers have been paying out an average of $400 million a year for severe weather events, most of which involve flooding. During the previous 25 years, weather events cost the industry an average of $100 million a year, according to insurance bureau data.

“It has gone up four-fold, and there’s no reason to believe it will go down,” Karageorgos said.

The federal government also pays for flood damage through the Disaster Financial Assistance Arrangements program, which reimburses the provinces after a natural disaster: the bigger the event, the more it pays. A 2016 report by the parliamentary budget officer concluded that the cost of disaster relief for severe weather (hurricanes, winter storms, thunderstorms and floods) has been rising steadily for 20 years: from an average of $54 million between 1995 and 2004 to an average of $410 million a year between 2005 and 2014.

The report estimates that the federal government can expect to pay $673 million annually for flood damage alone in each of the next five years.

The problem, Karageorgos said, is a function of the country’s aging water and sewer infrastructure combined with storms that are growing in severity and frequency due to climate change.

The Insurance Bureau of Canada has identified severe weather as a priority and has called on governments to work with the industry to build a national flood program to finance new infrastructure, improve flood defences, update floodplain maps and restrict construction in vulnerable areas.

“Canada’s aging sewer and storm water infrastructure simply cannot handle today’s precipitation,” concludes the IBC’s 2016 annual report on the state of the industry.

According to the IBC, about 10 per cent of Canadian homeowners live on a floodplain and require overland flood insurance, which protects against the kind of flooding experienced this week in the National Capital Region. But since the insurance pool is so small, and the relative risk so high, the cost of flood coverage is prohibitive.

For those in areas that are regularly inundated, flood coverage is simply unavailable since insurance is designed to protect against random events, not predictable ones, the bureau says.

University of Waterloo professor Blair Feltmate, leader of the Intact Centre on Climate Adaptation, called overland flooding “the elephant in the room in Canada.”

“Flooding, by a very large margin, is the greatest extreme weather event challenging Canada today — by far,” he said. “And flooding basements, specifically, is the greatest cost.”

Feltmate said the average homeowner shelled out $42,000 to repair basement damage after serious flooding hit Calgary and Toronto in 2013. Most of those homeowners, he said, had caps on their insured losses and had to finance the bulk of the repairs out of their own pockets.

“We now have, in Canada, a growing uninsurable housing market where people simply do not have insurance coverage for flooding,” he said. “It makes those homes a ticking time bomb because it means that when the next flood comes along, they’re going to find out they don’t have any coverage, and they’ll have to wait for disaster relief assistance if they do qualify.”

Some homeowners could default on mortgages, he said, while they await disaster assistance, which can take months to process. “The threat to the Canadian mortgage market right now is not a 25 basis point rise in interest rates,” he argued, “it’s the uninsurability of basements.”

The problem will only get worse as climate change advances, he added, since hotter temperatures increase evaporation into a warmer atmosphere that retains more moisture. It means more water comes down in storms that dissipate more energy, Feltmate said, with potentially disastrous consequences.


Former ICBC employee pleads guilty in B.C. Justice Institute attacks

Sunday, May 14th, 2017

NEW WESTMINSTER, B.C. _ Police say a former employee of the Insurance Corp. of British Columbia has pleaded guilty in a case where people connected with the Justice Institute of B.C. were targeted with firebombings and shootings.

An earlier trial heard 15 families across Metro Vancouver were terrorized after a man who saw them park at the justice training centre in New Westminster, B.C., tracked them down using information from their licence plates.

The attacks were orchestrated by Vincent Cheung who was sentenced to 13 years in prison by a B.C. Supreme Court judge last July.

The Combined Forces Special Enforcement Unit says the investigation determined an employee of ICBC fraudulently obtained the victims’ names and personal information by searching their licence plates.

Police say 44-year-old Elaine Rheaume pleaded guilty in New Westminster Provincial Court to one count of unauthorized use of a computer on Monday.

Rheaume, who was fired by the corporation in 2011, received a suspended sentence of nine months of probation and 40 hours of community service.


Do I have right-of-way when backing out of a mall parking spot?

Sunday, May 14th, 2017

In an ideal world, drivers would stop if they see you backing out of a parking space. But if you’re counting on them to stop, you may need a backup plan.

“Generally, the person backing up does not have a ‘right of way’ – they must ensure it is safe before they start,” Constable Melissa Wutke, spokesperson for RCMP Traffic Services, said in an e-mail. “There is no definition under the [Motor Vehicle Act of B.C.] that stipulates, ‘you must wait for a vehicle to completely back up from an area before passing.’”

Section 193 of the act says, “The driver of a vehicle must not cause the vehicle to move backward into an intersection or over a crosswalk, and must not in any event or at any place cause a vehicle to move backward unless the movement can be made in safety.” It’s a $109 fine, including fees, and two demerit points.

Even though the law doesn’t say drivers have to stop to wait when somebody’s backing up, it’s something people should do. Just don’t assume they will.

“Common sense would dictate that if you see a vehicle in your lane of travel, then you must wait for that vehicle to move before you continue in that lane,” Wutke said.

If somebody speeds past out of nowhere and hits you – they could be charged with driving without reasonable consideration. It’s a $198 fine and six demerit points.

“On a surface level, the person backing up has to show caution – but if somebody drives through at a ridiculous speed and they try to slip through the crack and not stop for you, they could be charged,” said RCMP Sergeant Lorne Lecker, with Deas Island Traffic Services. “That’s where witnesses and video are so crucial.”

Or, you could both be charged. Even without charges, the Insurance Corporation of British Columbia has to determine who’s at fault.

“As a driver, your top priority is to avoid the collision in the first place than be cleared after an investigation,” Lecker said.

The laws vary by province. Ontario is the only province where the rules of the road don’t apply on private property that’s used by the public, like mall parking lots.

So, if you back up and hit someone in Ontario, you won’t be charged under the Highway Traffic Act – but you could be charged under the Criminal Code of Canada.

And, Ontario’s fault determination rules do apply in parking lots, said the Insurance Bureau of Canada.

“Based on the limited information provided, [the driver backing up] would be at fault,” said Pete Karageorgos, IBC’s director of consumer and industry relations.

The law aside, if you’re struggling with drivers and pedestrians who won’t stop, you may have things, er, backward, said Angelo DiCicco, GTA general manager with Young Drivers of Canada.

“It’s better to back into the stall in the first place so you’re not backing out into an uncontrolled environment when you leave,” DiCicco said. “Backing out is very dangerous – there are people going by, kids running out – and rearview cameras have severe limitations.”

And, if you’re backing out extra cautiously because you can’t see if somebody’s there, you may be annoying drivers who’ve been waiting for you.

“Now they’re pissed off and decide to go while you’re double– and triple-checking,” DiCicco said. “If you’re having issues backing up and people are honking at you – at some point, you have to think, ‘Maybe it’s me.’”

If you do decide to back into a stall, signal and then roll down the window to gesture to let other drivers know that you’re backing in – and that they can go around you.

“If they don’t get it, you put the vehicle in reverse,” DiCicco said. “You want to communicate with the vehicles around you that the space is yours and you want to back in.”

Still, if you do back out, drivers should, ideally, stop – out of courtesy.

“Treat the people they way you want to be treated,” DiCicco said. “If someone is on your intended path, you wait. It’s like McDonald’s – first come, first served.”

Source: The Globe and Mail


Can A Landlord Be Sued For Historical Contamination Potentially Caused By Its Tenant?

Sunday, May 14th, 2017

Last Updated: April 27 2017

Article by Kirsten Mikadze

Siskinds LLP

A recent decision on a summary judgement motion underscores the difficulty inherent in suing a landlord for contamination caused by its tenant.

In Sorban Investments Ltd v Litwack, 2017 ONSC 706, several Defendants successfully brought a motion for summary judgement dismissing the plaintiff’s claims against them. The Plaintiff owns land abutting the property formerly owned by the Defendants, and was seeking damages in nuisance, strict liability (Rylands v Fletcher), and negligence as well as under section 99 of the Environmental Protection Act. The Plaintiff’s property became contaminated by PCE and other chemicals used in dry-cleaning operations, the fact of which was discovered in 2010. In the early- to mid-1990s, the Defendants leased their property for use as a dry cleaning operation. The Defendants sold the property in 2007.

The Court did not address whether the Plaintiff could establish that the Defendants’ land was a source of the contamination on the Plaintiff’s land. Instead, it assumed for the purpose of the motion that it was.

Among other findings of fact, the Court found that the Defendants did not know that their dry-cleaning tenant was emitting contaminants; that prior to 2006 the Defendants had no reason to believe that their land was contaminated or was the source of the contamination on the Plaintiff’s land; that from about 2006 to 2007 the Defendants had reason to, and did in fact, investigate whether their land was a potential source of contamination; and that the Defendants acted reasonably in their investigations of the contamination.

The Court confirmed that landlord liability in such instances flows from the foreseeability that the nuisance would occur as an inherent part of the activity to be undertaken on the property. As espoused by the Divisional Court in its decision in Durling v Sunrise Propane Energy Group Inc, 2013 ONSC 5830, a landlord may be held liable for the actions or nuisance of its tenants only “when the use from which the damage or nuisance necessarily arises was plainly contemplated by the lease.”

In this case, there was no written lease in evidence, and there was no evidence one had ever been entered into. There was no evidence that the Defendants had authorized their tenant to contaminate the Defendant’s land; were involved in the operation of the dry-cleaners; had any knowledge that any escape of contaminants had occurred; or were aware of the contamination until 2006. Moreover, the nuisance created by the tenant, assuming nuisance was ultimately established, was not foreseen or foreseeable as “inherently part of the activity to be undertaken”—namely, a commercial dry cleaning operation. Even after the Defendants had discovered contamination on their property, the Defendants were advised by their environmental consultant that no remediation was necessary and had no reason to believe the contamination was migrating to the neighbouring property.

In terms of negligence, the Court agreed once again with the Durling court that the mere fact of being a landlord does not establish sufficient proximity to ground a duty of care to an abutting landowner. Finding a duty of care in such circumstances would have the effect of burdening landlords with the duty to involve themselves in the activities undertaken by their tenants on their properties in order to protect themselves from liability.

Only rarely does a landlord potentially owe a duty of care to third parties for the negligence of a tenant. As has been held by the Superior Court in Canadian Tire Real Estate Ltd v Huron Concrete Supply Ltd, 2014 ONSC 288, the geographic proximity of a landowner’s property to another property may be sufficient to ground a duty of care to the owner of that abutting property. However, for a landlord landowner of an abutting property to owe a duty of care related to the negligence of its tenant, it must be foreseeable that the tenant’s activities are inherently unsafe, dangerous, or illegal such that the alleged harm to the abutting property was likely to result. The facts must be “out of the ordinary” for a landlord owner of an abutting property to be found owing a duty of care to a third party.

The Defendants were also assisted by the fact, agreed by the parties, that the contamination was historical and not ongoing. By the time that the Defendants had discovered their lands were contaminated, the Plaintiff’s lands had already been contaminated (which it alleged occurred in 2006). There would also be no duty of care owed if the Plaintiffs could not establish that the lands were contaminated prior to the spring of 2007, when the Defendants sold the property.

The Court had little difficulty dismissing the Plaintiff’s section 99 claim given both the lack of evidence of a “spill,” as defined in the EPA, and the lack of evidence that the Defendants either owned or controlled any pollutant immediately prior to its first discharge.

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.


$120,000 Non-Pecuniary Assessment for Chronic Pain with Somatization Issues

Sunday, May 14th, 2017

Adding to this site’s archived postings of ICBC chronic pain cases, reasons for judgement were released this week by the BC Supreme Court, reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain in a Plaintiff pre-disposed to somatization.

In the recent case (Alafianpour-Esfahani v. Jolliffe) the Plaintiff was involved in a 2012 rear end collision that the Defendant was responsible for.  The Plaintiff alleged brain injury altogether this claim was not proven at trial.  The court found the plaintiff was pre-disposed to somatization and suffered from a chronic pain disorder following the collision.  In assessing non-pecuniary damages at $120,000 Madam Justice Sharma provided the following reasons:

[123]     In light of the following factors, I find Ms. Alafianpour-Esfahani is entitled to $120,000 in non-pecuniary damages:

a)    the accident caused soft tissue injuries to her neck, back and shoulder that resulted in headaches and developed (in combination with her predisposition to somatization) into chronic pain;

b)    she has not likely reached maximum medical improvement of her physical symptoms, but any further improvement depends upon the success of addressing the reactivity of her nervous system, which will be challenging;

c)     her physical symptoms have been prolonged because of her psychiatric condition characterization by a vulnerability to somatization and pathological nervous system reactivity;

d)    her prognosis for improving her condition by following a thorough program of desensitization is fair, but that is tempered by the chronicity of her condition because it has been left untreated fro 3 ½ years;

e)    the accident has negatively impacted all aspects of her life, including her relationship with her family, her social interaction, her ability to work, her recreational activities, her ability to maintain her home and yard, her ability to cook for family and friends; her ability to provide emotional support to her children, especially her daughter and her ability to travel.


Keep motorcyclists safe by sharing the road, says ICBC

Sunday, May 14th, 2017

Sixty per cent of motorcycle crashes in B.C. involve other vehicles – that’s why ICBC is urging everyone to share the roads safely with motorcycles and yield the right-of-way at intersections.

Today marks the start of Motorcycle Safety Awareness Month and, with warmer weather upon us, more riders will be hitting the road. It’s important that both drivers and riders practice safe driving to keep our communities safer.

Last year in B.C., 1,600 motorcyclists were injured in 2,600 crashes.

Tips for drivers:

  • Give extra space when passing a motorcycle: Allow at least three seconds following distance when you’re behind a motorcycle.

  • Scan intersections: As with other vulnerable road users, the majority of car crashes involving motorcycles happen in intersections. Drivers need to look out for motorcycles – especially when turning left – they can be harder to see and it can be tough to judge how fast they’re travelling.

  • Leave your phone alone: Stay focused and avoid distractions that take your mind off driving and your eyes off the road.

  • Share the road with motorcycles: If in doubt about who has the right-of-way, yield to the motorcycle.

Tips for riders:

  • Wear all the gear, all the time: This includes a helmet that meets DOT, Snell or ECE safety standards and safety gear designed for riding. In all weather conditions, wearing proper motorcycle safety gear is key to reducing the severity of injuries in the event of a crash.

  • Be bright and visible: Protect yourself and your passengers from serious injury by choosing gear that has bright colours and reflective materials.

  • Manoeuvre intersections safely: Especially where oncoming traffic is waiting to turn left, adjust your lane position and reduce your speed so you’ll have an escape path or time to stop if you need it.

  • Share the road with vehicles: Never assume a driver has seen you. They may not accurately judge your distance or speed of approach. As best you can, stay out of drivers’ blind spots.

This month, local police will be conducting two free motorcycle skills training sessions: in the Lower Mainland on May 13 and in Greater Victoria on May 14. Riders are invited to bring their motorcycles to receive coaching by police instructors and learn skill-enhancing and life-saving manoeuvres in a closed course.

Get more driver and rider tips on icbc.com.

Regional statistics*:

  • Last year in the Lower Mainland, 940 motorcyclists were injured in 1,500 crashes. On average, 12 motorcyclists are killed in crashes each year in the region.

  • Last year on Vancouver Island, 310 motorcyclists were injured in 520 crashes. On average, six motorcyclists are killed in crashes each year in the region.

  • Last year in the Southern Interior, 330 motorcyclists were injured in 440 crashes. On average 11 motorcyclists are killed in crashes each year in the region.

  • Last year in the North Central region, 47 motorcyclists were injured in 73 crashes. On average five motorcyclists are killed in crashes each year in the region.

*Motorcyclist incident and injuries in B.C. based on ICBC claims data (2016). Includes incidents in parking lots and incidents involving parked vehicles; and excludes crashes involving out of province vehicles.

Motorcyclist fatalities in B.C. based on police-reported data (2011-2015). Includes low-speed motorcycles (scooters, mopeds and trikes).