Benefits Schedule (Ont.) that a sole pro-
prietor could not make an insured
vehicle available to himself and then be
deemed to be a named insured.
Appeal from the decision of an arbitrator
that found it responsible to pay statutory
accident benefits to an individual named M.
M was injured when he jumped onto the
running board of his truck that was in
motion, fell under it and was run over. The
arbitrator also found that respondent insurer
was not responsible to pay accident benefits.
M carried on business as a sole proprietorship. The vehicle that was involved in the
accident was registered to M and to his business as the owner. P Ltd. was registered as
the owner of the licence plate. M purchased
the vehicle from P Ltd. It was used pursuant
to an independent contractor agreement
between P Ltd. and M’s business. M agreed
to enroll in P Ltd.’s fleet public liability and
property damage and cargo insurance coverage. That insurance was with respondent. M
was not a named insured or a listed driver.
At the time of the accident M was an
independent contractor and he was not an
employee of P Ltd. He was a named insurer
on a motor vehicle liability policy issued by
appellant insurer on his personal use vehicle.
The arbitrator relied on subs. 66(1) of the
Statutory Accident Benefits Schedule
(Ont.) to find that an insured vehicle could
not be made available for an individual’s use
by a sole proprietorship when the individual
was the sole proprietor.
HELD: Appeal allowed. The applicable
standard of review was correctness. The
arbitrator ruled incorrectly when he found
appellant and not respondent liable. There
was no reason under subs. 66(1) that a sole
proprietor could not make an insured
vehicle available to himself and then be
deemed to be a named insured. The arbitra-
tor ought to have found respondent liable.
INSURANCE (PROPERTY)
EXCLUSIONS – Exclusion in an
insurance policy for vacant properties
applied to defeat plaintiff’s claim for
indemnity.
Action for indemnity for water damage to
property. When the insured renewed her
property insurance policy with defendant
insurer, she no longer resided at the property
and had moved into a nursing home, which
was unknown to the insurer. The insurer
had granted the insured two vacancy per-
mits to cover the period November 2004 to
February 2005. The insured never returned
home. The policy excluded coverage for any
loss or damage occurring after the dwelling
had been vacant for more than 30 consecu-
tive days. The word “vacant” was defined to
mean the occupants had moved out with no
intent to return. Losses resulting from acci-
dental discharge from a plumbing system or
sudden and accidental bursting of a plumb-
ing system were excluded when the dwelling
was vacant even with insurer’s consent. The
insured and her family returned to the home
from time to time for visits. The contents in
the home remained and the utilities were
not disconnected. In 2005, plaintiff estate
trustee discovered extensive water damage
in the basement. Plaintiff argued that
although no one resided or lived in the home
after June 2004, plaintiff and the insured
never forfeited the intention of her home-
coming. He argued that the house was never
vacant as defined in the policy.
JUDGMENTS & ORDERS
SUMMARY JUDGMENT – Even
though the evidence of defendant’s lia-
bility was weak, the court dismissed
defendant’s motion for summary judg-
ment to dismiss plaintiff’s claim.
Motion for summary judgment dismissing plaintiff’s claim. Plaintiff claimed for
damages from a motor vehicle accident that
occurred in April 2002. The statement of
claim was issued in December 2007. Defendant brought the motion following plaintiff’s
discovery. Defendant had not yet been discovered. Defendant claimed that there was
no genuine issue requiring a trial with
respect to liability.
HELD: Motion dismissed. Plaintiff failed
to properly respond to the motion. She did
not put her best foot forward. The only evidence before the court was the police report
and defendant’s evidence. The police report
more closely mirrored defendant’s evidence
on liability that plaintiff struck his vehicle
when trying to pass. Plaintiff’s evidence on
discovery was unclear, but provided some
evidence of defendant’s alleged negligence.
Given the absence of evidence, the court was
not in a position to use its newly expanded
forensic ability to do anything other than
hear a substantial portion of the trial evidence. Such a bifurcation was not desirable.
The court could not say that a finding of liability would not be made against defendant.
Bosnjak v. Bildfell, [2010] O.J. No.
4085, Ont. S.C.J., Milanetti J., Sept.
29/10. Digest No. 3025-015 (Approx. 5
pp.)
DECLARATORY ORDERS – Court
dismissed plaintiff’s motion to require
defendant lottery corporation to draw six
more sets of numbers for a past draw.
Motion by plaintiff for an order compelling defendants to draw six more sets
of numbers for the June 25, 2010 “
Lot-toMax” draw. The draw had the largest
combined prize in Canadian history of
$99,000,000 consisting of a jackpot of
$50 million and 49 individual Maxmillion prizes of $1 million each. Plaintiff
held a number of tickets which, like all
tickets sold in Ontario, contained a
statement that the jackpot was to be $50
million plus 55 Maxmillion prizes. The
day following the draw, plaintiff complained to defendant that only 49 sets of
numbers had been drawn for the Maxmillion prizes. She was told that the 55
prizes was only an estimate. Plaintiff
commenced a proposed class action
seeking to represent all persons in Canada who purchased tickets for the June
25, 2010 draw.
HELD: Motion dismissed. Defendant
admitted that its communications with
its customers were inconsistent and the
Ontario tickets should have included the
word “estimated” or “est.” as they did in
other provinces. Defendant announced
that it intended to set aside $6 million to
be offered as additional prizes in a bonus
draw. Plaintiff was asking that the court
order that a special draw be conducted
applicable to tickets purchased for the
June 25, 2010 draw. It was not a fair and
workable solution. Once people checked
their lottery tickets they generally threw
away losing tickets. Many tickets were
“quick picks”, so it was highly unlikely
that people would remember all their
numbers. In any event, the awarding of
any prizes would have to await the successful outcome of the litigation.
Fradenburgh v. Ontario Lottery and
Gaming Corp., [2010] O.J. No. 4112,
Ont. S.C.J., Strathy J., Sept. 30/10.
Digest No. 3025-014 (Approx. 5 pp.)
LABOUR RELATIONS
TO YOUR PAID PRINT SUBSCRIPTION Add Free Online Access
Yes! I would like to subscribe to The Lawyers Weekly.
; 1 Year print (48 issues) for $270, plus tax
; 1 Year print + digital (48 issues) for $270, plus tax
; 1 Year digital only (48 issues) for $245, plus tax
________________________________________________________________________________________________________________________________
Name
________________________________________________________________________________________________________________________________
Firm/Organization
________________________________________________________________________________________________________________________________
Address
________________________________________________________________________________________________ ; Home ; Business
Address
________________________________________________________________________________________________________________________________
City Province Postal Code
________________________________________________________________________________________________________________________________
Phone Number Fax Number
________________________________________________________________________________________________________________________________
Email
Method of Payment
; Visa ; MasterCard ; AMEX ; Cheque enclosed
________________________________________________________________________________________________________________________________
Credit Card Number Expiry Date
________________________________________________________________________________________________________________________________
Card Holder Name Signature
For full subscription options, visit us online at: www.thelawyersweekly.ca
Mail your subscription order to: LexisNexis Canada Inc. 700–123 Commerce Valley Drive East, Markham, ON L3T 7W8
Fax to: 905-479-4082 or use our toll-free fax at 1-800-461-3275
Please allow 2-3 weeks for delivery of first issue. Make cheque payable to LexisNexis Canada.
Offer expires September 30, 2011. Reservation Code: 4463
JUDICIAL REVIEW – Arbitrator
erred in finding that individuals hired as
independent contractors to train teachers
in the use of technology were actually
teachers and members of the teacher’s
federation.
Application for judicial review of an arbitration award in which the arbitrator found
certain individuals were employees of applicant school board and members of the
respondent teacher’s federation. A company
placed a number of individuals in various
schools within the school board and at the
school board offices as independent contractors. Their function was to train teachers
in the use of technology and to assist them in
integrating technology in the classroom. It
was made clear to the individuals that their
function was not to teach the students, nor
supervise the classroom, and they were
instructed to leave the classroom if they
found themselves alone with the students.
Although a teaching certificate was not
required, the individuals were primarily
recruited from teachers colleges, and so the
majority of them were trained and qualified
as teachers. The teacher’s federation took the
position that the individuals were not
independent contractors, but rather were
employees of the board and were teachers
covered by the collective agreement. The
grievances were referred for arbitration. The
arbitrator upheld the grievances and found
that the individuals were actually employees
of the school board and not independent
contractors. In addition, he found that the
individuals were teachers and members of
the teacher federation’s bargaining unit.
HELD: Application allowed. The arbitrator erred in finding that the individuals were
employees of the school board. In reaching
his conclusion, the arbitrator erred in confusing the individuals’ desire to be employed
by the board with the parties’ intention that
the individuals be independent contractors.
