The Lawyers Weekly - June 4, 2010

Morelli
Continued From Page 15
But of course, the question then
becomes, “where do we stop?” Should
we overlook a failure to allow a murder
suspect access to counsel simply
because the police managed to extract
a valuable confession? Should the right
to silence be denied to those suspected
of terrorism? While such analogies can
be misleading— in part because they
obscure important distinctions
between different rights— they do help
to focus our attention on importance
of due process, and in particular on
the need to limit the investigatory
powers of the state.
Finally, there is also the question of
what we should expect from our police.
Given the extensive powers granted to
even the most junior officers, the courts
and the public should require them to
act professionally and do the “necessary
legwork” when it comes to the investi-
gation of even the most minor crimes.
In Morelli, however, this was not
the case. Not only did the majority find
that the ITO was carelessly drafted,
misleading and incomplete, but also
that key facts had been omitted.
Although there was no suggestion that
the police set out to deliberately mis-
lead the justice of the peace who
issued the warrant, the fact that the
ITO was inadequate raises a number
of important questions.
First, we should ask why the police
produced such a poorly drafted ITO,
the investigating officers did not
understand what was required to
obtain a warrant, or did not know
how to properly draft the ITO, then
clearly questions need to be asked
about the training and guidance they
received. If the rules relating to the
drafting of ITOs and the issuing of
warrants are too complex for ordinary
officers to understand, then they
should be changed and simplified. If
the training is inadequate, then it
should be improved.

Benjamin Goold is a professor at the
University of British Columbia Faculty
of Law. In addition to his interest in
criminal law and procedure, he also
writes on police surveillance, privacy
law and the relationship between
security and human rights.

Practice Management
FOCUS
Looking for a cost-effective
way to recruit legal staff …
• Easily post, track, and edit jobs
with our simple online Recruitment Manager
system.

• Search our candidate database—
Quick and easy to use, our candidate search
tool gives you a constantly refreshed database
of qualified legal professionals to shortlist.
• Track job applications online.
• Flexible pricing options to fit
your budget.
• Build your brand among job seekers —
Add your company logo, or advertise in the
Featured Employer or Featured Jobs section.

Advertise all of your legal jobs on totallegaljobs.ca

IN HOUSE COUNSEL

Pick up your copy of In-house Counsel magazine in the next issue of The Lawyers Weekly

The Lawyers Weekly FALL2009|FREE Going it ALONE IN HOUSE COUNSEL How solo in-house counsel are keeping connected

The Lawyers Weekly

IN HOUSE COUNSEL

SPRING 2010 | FREE

Weathering the

STORM R
STORM
S TORM

What to do when disasters, from recalls to class actions, hit your organization

Pro bono
In-house
counsel
lending
a hand

Plus

Outsourcing firms for in-house counsel

THE LAWYERS WEEKLY
FOCUS
ON INSURANCE LAW
March 27, 2009| 7

W Abandoning prior tortured approaches

hat is an “accident?” The meaning of the word drives the analysis on whether some first-party insurance policies —such as those for life, disability and accidental death and dismemberment —provide coverage for death or bodily injury.

ERIK KNUTSEN

If an insured policyholder dies from a heart attack, is that an “accident” for which insurance coverage should attach? Is that instead an illness and not an “ accident?” Does it make a difference if the heart attack is caused by hardening of the arteries or, instead, a sudden shock? The Supreme Court of Canada is poised to again consider the meaning of “accident” for first-party insurance coverage in the upcoming appeal for Gibbens v. Co-operators Life Insurance Co., [2008] B.C.J. No. 625 (C.A.), a decision on whether paraplegia resulting from a condition caused by a sexually transmitted virus is an “accident” for which disability insurance coverage should attach.

Canadian courts have adopted differing
legal rules for interpreting “accident”
when death or injury includes in the causal
matrix somesort of natural cause or health
condition. Courts should instead stream-
line the interpretiveanalysis by using stan-
dard insurance contract interpretation
principles to consistently interpret the
actual wording of the insurance policy, and
avoid the problematic adoption of a
labyrinthine tort-like causation analysis.

Canadian caselaw has consistently held that an “accident” is an “unlooked-for mishap” that is unexpected and often sudden. Yet there is nothing in the simple word “accident” to distinguish between coverage for an insured suddenly dropping dead of an unexpected heart attack or for an insured slowly ebbing away from congestive heart failure. Nor is there anything in “accident” to determinewhether there is coverage when an external event results in somedeadly health condition.

The current controlling test to determine whether death or bodily injury was the result of “accidental means” is a subjective “expectation” test: did the insured expect to die (or experience injury)? The Supreme Court of Canada adopted this test in Martin v. American International Assurance Life Co., [2003] S.C.J. No. 14, where the court granted a beneficiary insurance coverage when an insured physician who was addicted to Demerol died from an unintentional intravenous

TEOFILO OLIVIERI / IMAGES.COM

See Accident Page 10

PRICELESS SERVICE IS A TRADI TION.

The McKellar Structured Settlement™

We didn’t get to be Canada’s largest provider of structured settlements by putting a price tag on our services.
Have us attend mediations, undertake file reviews, conduct seminars and prepare future care valuations–all with no price tag. Ever.

Why settle for less?

VANCOUVER
EDMONTON
GUELPH
HALIFAX
USA

1-800-465-7878

780-420-0897

1-800-265-8381

1-800-565-0695

1-800-265-2789

www.mckellar.com

August21,2009| 9 THELAWYERSWEEKLY
FOCUS
ON INSURANCE LAW

ARNOLD CEBALLOS TORONTO The Ontario Court of Appeal has ordered a trial to decide whether losses due to employee misconduct are covered by a fidelity insurance bond in a case where staff of a credit union allegedly caused the company losses as they tried to help members struggling through tough economic times.

Overturning a summary judgment in favour of the credit union, the appellate court held that summary judgment was not the proper way to dispose of the matter, since there were a number of genuine issues that should be considered at a trial. The case involved the Iroquois Falls Community Credit Union Ltd., located in Iroquois Falls in northern Ontario, a town whose main employer was pulp and paper company Abitibi Consolidated Inc. Between 80 and 90 percent of the credit union’s members were current or former employees of Abitibi, said the appeal court. The company started scaling back its operations in the town in the 1980s and by the 1990s the local economy and the credit union were in difficult financial straits. Investigations into the credit union’s finances by regulators as well as by the Deposit Insurance Corporation of Ontario (DICO) disclosed irregularities and defi-ciencies at the credit union. In 2002, DICO, as liquidator of the credit union, submitted an indemnity claim to the credit union’s insurers for losses caused by the dishonesty of credit union general manager Donna Simmons, acting alone or

How genetic information affects access to insurance

Advancements in genetic science and technology have become important tools in the diagnosis, cure and management of many diseases. But should there be concerns about potential genetic discrimination in access to insurance as genetic information becomes widely available and inexpensive and the predictive value of genetic risks increases?

Insurance contracts are contracts of utmost good faith, requiring full disclosure of material facts pertaining to insurability within the insured’s knowledge. Materiality depends on what a reasonable insurer would want to know in the underwriting process. According to the Canadian Life and Health Insurance Association, insurers may not demand genetic testing as a precondition for insurance (see www.clhia.ca/ download/genetic_testing_ind_posn. pdf).

However, a disclosure duty arises
where the person has previously under-
gone genetic testing and is aware of
information that might affect insura-
bility. The insured risks having the con-
tract voided for non-disclosure, subject
to incontestability for contracts that
have been in effect for at least two years
and provided the non-disclosure was
not fraudulent.

Genetic predisposition to certain
conditions might adversely affect appli-
cants who are deemed a higher-than-
average risk and hence not insurable or
subject to higher premiums or reduced
benefits. There is also the risk that
inconclusive test results may lead
insurers to make assumptions about a
person’s genetic susceptibilities, giving
rise to denials of coverage, unwarranted
higher premiums or reduced benefits.
This might in turn negatively impact
access to social goods such as credit
(for example, financial institutions
often require insurance as a precondi-
tion for mortgages or car loans), access
to supplementary health care and dis-
ability insurance, ability to cope with
financial consequences of tragedies and
financial security.

This may not concern those with access to group insurance through standard employment or professional associations, where individualized risk assessment may not be required. However, genetic discrimination poses a real risk for people in precarious economic situations — for example, women, racialized people or the disabled — who are often marginalized and work in non-standard employment and who, incidentally, have more need for insur-ance.Geneticdiscriminationcould therefore exacerbate an already existing inequality of access to social goods. This could discourage people from undergoing genetic testing or participating in research because it may detrimentally affect their insurability. This might undermine the health benefits of

CHRSTAN ANTHON Y/ STOCKPHO TO.COM

Insurance may not cover losses from employee misconduct

SeeGeneticPage13 SeeIroquoisPage11 ELIZABETH ADJIN- TETTEY

VANCOUVER 1-800-465-7878

EDMONTON

780-420-0897

GUELPH

1-800-265-8381

HALIFAX

1-800-565-0695

USA

1-800-265-2789

PRICELESS SERVICE IS A TRADITION.

The McKellar Structured Settlement™

Why settle for less?

www.mckellar.com

NEXT
W EEK

The B.C. Supreme Court recently ordered Translink, the operator of the Lower Mainland’s transportation system, as well as related entities created to oversee the construction of the Canada Line, to pay one of the merchants impacted by the construction $600,000 in damages for nuisance.

In Heyes v. City of Vancouver, [2009] B.C.J. No. 1046, plaintiff Susan Heyes operated a clothing store that was heavily impacted by Canada Line construction. The Canada Line leaves the downtown Vancouver peninsula via a bored tunnel under False Creek and follows the alignment of Cambie Street in a tunnel heading south. After bridging the Fraser River, the line operates at grade or on an elevated guideway serving Richmond and the Vancouver International Airport (YVR). Cambie Street features several commercial nodes functioning as local shopping centres, including a stretch focused on the 16th Avenue intersection, comprising many dozens of merchants.

Early plans for the Canada Line called for the bored tunnel to continue south from False Creek well past 16th, despite the availability of cheaper “cut and cover” construction techniques. However, as the procurement process for the line neared its conclusion, the ultimately successful proponent, a consortium of SNC-Lavalin Inc. and Serco Group Inc., proposed a cut-and-cover construction technique that protected the sewer line and brought the project cost within hailing distance of the amount of public funding that had been identified. SNC-Lavalin began work on the project in late 2005, and the Canada Line opened for service in September.

For merchants on Cambie Street, including Heyes, the construction of the Canada Line was seriously disruptive. Street surfaces were removed from property line to property line, utilities relocated and a

14|October2,2009 THELAWYERSWEEKLY

FOCUS
ON MUNICIPAL LAW

Source protection is the first barrier of a multi-barrier approach to providing safe drinking water. The Ontario Clean Water Act (CWA) is intended to protect existing and future sources of drinking water. It is a response to Justice Dennis O’Connor’s recommendation in his report on the Walkerton tragedy to develop source protection plans at the local level for every watershed in Ontario.

Since the CWA was passed in 2006, the Ministry of the Environment (MOE) and stakeholders have been working hard to implement this new-to-Ontario approach to governance. The CWA provides that source protection committees, managed by conservation authorities and comprised of stakeholder representatives, will develop source protection plans for submission to the MOE for approval in 2012. Currently, the 19 source protection committees are preparing sci-ence-based assessment reports for each of the 40 designated watershed areas in the province. The assessment reports are to identify and assess water quality and quantity threats to drinking water sources as listed in each committee’s terms of reference. The committees will then prepare source protection plans for each watershed area.

The information assembled in the assessment reports will frame source protection policies and will detail, and direct, the actions of public bodies and municipalities to address the identified threats to drinking water sources within the watershed area.

The source protection plan poli-
cieswillensurethatsignificant
drinking water threats cease to be
significant, and potentially signifi-
cant drinking water threats never
become significant. Policies could
include: education and outreach,
incentive programs, monitoring
activities, land use planning
approaches, new or amended
provincial instruments, risk man-
agement plans, prohibitions or
restricted land uses.
Municipalities have been active
participants in local multi-stake-
holder source protection committee
discussions. Many have already
developed official plan policies and
zoning by-laws delineating and pro-
tecting wellhead areas. While the
Ontario Planning Act addresses
ne w land use, the CWA gives
municipalities new powers to
address activities, including
requiring risk management plans
for activities that are significant
threats inside wellhead protection
areas and intake protection zones,
and a suite of enforcement powers
similar to those of the MOE.
Municipalities will also
appoint risk management officials
and inspectors to be responsible
for the administration and
enforcement of risk management
plans for regulated activities, pro-
hibitions, restrictions on land uses
and for issuing stop work or cost
recovery orders where the munici-
palityhascarriedoutworkto
reduce drinking water threats.
These powers give municipalities
an important role in implementing
the source protection plans.
The MOE has been barely a step
ahead of the committees and
municipalities, developing tech-
nical and policy guidance docu-
ments. In June, it posted “Source
Protection Plans under the Clean
Water Act, 2006: A Discussion
PaperonRequirementsforthe
Content and Preparation of Source
Protection Plans,” on the environ-
mental registry for public comment.
(Comments on the discussion paper
were due by Sept. 23.)
In late 2009, the MOE expects
to release draft regulations under
the CWA detailing the require-
ments for source protection plans
based on the discussion paper
and comments. The paper pro-
poses a hierarchy for the use of
types of policies.
The MOE proposes to
encourage source protection com-
mittees to use prescribed provin-
cial instruments as the policy
approach of first choice. This is
sensible as it tends to encourage a
one-window approach and avoids
regulatory duplication. MOE
should prescribe as many instru-
ments as possible. The current list
appears to be lacking certain
provincial instruments that could
be used for source protection.
Where no provincial instrument
exists, the discussion paper encour-
ages the use of risk management
plans. Where a risk management
official is satisfied that a risk man-
agement plan for a drinking water
threat will reduce the potential for
adverse affects to a drinking water
source, a risk management plan
may be considered.
Risk management plans are
intended to be negotiated and
agreed to. Where agreement cannot
be achieved, a risk management
plan may be ordered for an activity
that is or would be a significant
drinking water threat.
However, the discussion paper
seeks to restrict the use of risk
management plans to significant
drinking water threats, not those
that “would be” significant. This
isanunwiserestrictionofthe
CWA, as it effectively limits poli-
cies for preventing a moderate
threat from becoming a significant
threat to education, outreach,
incentives and monitoring.
The discussion paper encour-
ages limiting the use of outright
prohibitions to when there is no
alternative. Although it is prudent
to adopt a limited use of prohibi-
tions, a legal requirement to con-
sider “all possible alternatives”
would effectively chill the use of
prohibitions even where signifi-
cant drinking water threats war-
rant the use.
The discussion paper proposes
that the suite of Planning Act pro-
visions be used to support source
protection including site plan
controls, zoning by-laws and
community improvement plans.
Land use planning decisions and
planning instruments, including
official plans and zoning by-laws,
will have to conform with signifi-
cant threat policies, designated
Great Lakes policies and other
policies. Identification of risks to
drinking water sources would
restrict municipal land use and
planning decisions, including
undertaking any public works or
passing by-laws that conflict with
the CWA.
The CWA provides opportuni-
ties to protect drinking water
sources across Ontario. Munici-
palities and other stakeholders
will continue to play a critical role
infindingpractical,workable
solutions to implement and
enforce drinking water source pro-
tection measures.
Juli Abouchar is a certified envi-
ronmental law specialist and
partner at Willms & Shier Environ-
mental Lawyers LLP in Toronto and
is a member of the CTC Source Pro-
tection Committee. Jacquelyn
Stevens is an associate lawyer at the
same firm.
BILL BUHOLZER