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Limitations on Good Faith: Usanovic and Insurers’ Obligations in Respect of Statutory Limitation Periods

Ontario law imposes a duty of good faith and fair dealing on both insurers and those whom they insure. However, the parameters of this duty are not always clear. While it is established law that insurers must adjudicate their claims fairly and in a timely manner, courts are left to determine additional elements of the duty of good faith on a fact-specific basis.
Recently, the Ontario Court of Appeal was asked to extend the duty of good faith to require an insurer to notify an insured of a statutory limitation period under the Limitations Act, 2002. Generally speaking under the Act, plaintiffs seeking to commence legal proceedings must do so within 2 years of the date on which they discovered the injury, damage, or loss in question. In Usanovic v. Penncorp Life Insurance Co. , the Ontario Court of Appeal held that insurers are not obligated as part of their duty of good faith to notify insureds of this limitation period.

The Facts

Fadil Usanovic purchased an insurance policy from Penncorp Life Insurance Co. in 1999. The Policy insured Usanovic against disability arising from accidents and sickness, among other things.
In September 2007, Usanovic fell from a roof and suffered various injuries. He made a claim under the Policy and received disability benefits until November 2011, when Penncorp terminated his benefits because he was no longer “totally disabled” as defined in the Policy. Through counsel in January 2012, Penncorp advised Usanovic that in order to receive further benefits, he was required to submit medical records to prove that he was “unable to engage in any and every occupation for which he was reasonably fit by reason of his education, training, and experience.” Usanovic did not provide Penncorp with any medical records.
In early 2015 Usanovic consulted a lawyer who advised him of the limitation period under the Act. At this time, Usanovic became aware that he should have commenced an action against Penncorp within 2 years of the day on which he discovered the “injury, loss or damage”. Usanovic commenced an action against Penncorp in April 2015, approximately 3.5 years after Penncorp terminated his benefits.

The Arguments and the Decision

In the lower court, Usanovic argued that Penncorp was bound by its duty of good faith to notify him of the limitation period under the Act when it denied his claim. He argued that the limitation period did not begin to run until Penncorp gave such a notice. The motion judge rejected these arguments, stating that (1) the limitation period began to run when Usanovic received Penncorp’s denial letter on January 12, 2012; and, (2) requiring Penncorp to notify Usanovic of this fact would create a “substantial shift” in the boundaries of an insurer’s duty of good faith.
In the Ontario Court of Appeal, Usanovic argued on the basis of consumer protection legislation that the duty of good faith should require insurers to notify insureds of the applicable statutory limitation period. The Court of Appeal upheld the motion judge’s decision. Strathy C.J.O. declined to invoke consumer protection law in this context. He stated that while an insurer’s duty of good faith requires it to “give as much consideration to the welfare of the insured as to its own interests” , this did not rise to the level of a fiduciary duty, wherein the insurer would be required to hold the insured’s interests as paramount to its own interests.
Strathy C.J.O. further held that Usanovic’s proposed expansion of the insurer’s duty of good faith would in essence overrule the discoverability provisions of the Act. If Usanovic’s argument was to stand, then in every case the insurer’s notification of the limitation period would trigger the start of the limitation period, as opposed to the insured’s discovery of his or her loss, injury, or damage. This would bring ambiguity – rather than clarity – to the understanding of the statute.

What Does Usanovic Mean for Insurers in Ontario?
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Once again our partners have been named in the 2018 Canadian Legal Lexpert Directory as Leading Practitioners in Property Development for Toronto and the GTA.
Congratulations to Jeff Davies, Kim Beckman, Mark Flowers and Michael Melling for being recognized as leading lawyers in a competitive marketplace.
To be included in the directory is an honour and acknowledgement of excellence by a practitioner’s own peers and colleagues.

On March 1, 2018 the Ontario Municipal Board (the “Board”) released a decision on the low-rise regulations (Chapter 10) of the Toronto Zoning By-Law 569-2013. A copy of the Decision is available here.
A number of regulations that are often the subject of minor variance applications were changed, or will be changed, as a result of the Decision.

The Board did two things:

First, it ordered that a number of regulations be reviewed, and revised pursuant to its direction. These regulations are mostly related to the way height is calculated – so that it is more consistent with the old by-law standards. It also includes review of dormer width, some parking provisions, and the definition of basement and first floor. A focus for the review is on provisions that have led to difficulties building on lots less than 12 metres. Click here for Table of Regulations Undergoing Further Review

Second, the Board ordered that a number of regulations be approved or approved as modified. Approved provisions relate generally to the categories of:

• Height – Roof slope restrictions and height of Structures such as antennas and flagpoles
• Building Length and Depth – How to measure and maximums
• Gross Floor Area Calculations – How to calculate and when attics are included
• Setbacks and Separation – Minimum side yard setback and distance between Residential Buildings on the same lot
• Platforms – When platforms are permitted encroachments into setbacks, when platforms are exempt from lot coverage calculations, and that balconies are permitted to be within 0.2m of finished floor height instead of having to be the same.
• Ancillary Buildings – Where they are permitted, maximum height and size, and when setbacks or separation distances apply
• Parking – Where it is permitted and where the access is to come from
• Height of Structures on a Building – Includes mechanical elements

Davies Howe LLP is pleased to announce Kyle Gossen has been made a partner of the firm effective January 1, 2018.

Kyle has been with Davies Howe since 2013 and practices in Land Development and Litigation.

Davies Howe “…lands the top prize in this year’s GTHA ranking for its consistently solid performance in a large number of highly complex and contentious appeals.” #1 Development Law Firm in the NRU’s 2017 annual ranking for the GTHA.

“Davies Howe wraps up another great year by moving up one spot to take the penultimate place in our Toronto rankings”.  #2 Development Law Firm in the NRU’s 2017 annual ranking for Toronto.

Davies Howe will continue to lead the way in 2018 in the new planning landscape as we transition from the OMB to LPAT (Local Planning Appeal Tribunal) and continue to work in Toronto’s recently established TLAB (Toronto Local Appeal Body) process.

Building solutions.  Planning success.

The Building Better Communities and Conserving Watersheds Act, 2017 (“Bill 139”) received Royal Assent on December 12, 2017. This means that Bill 139 is in force. However, the substantial amendments contained in the Schedules to Bill 139 which impact the future processing of Planning Act applications will not come into force until a day to be named by proclamation by the Lieutenant Governor of Ontario. Current indications are that the Proclamation Date will occur after the rules and regulations governing the new appeals tribunal are complete, anticipated in the spring of 2018.

The most substantial changes in the new legislation relate to the Planning Act approval and appeal process, including the enactment of the Local Planning Appeal Tribunal Act, 2017 (the “LPAT Act”) and significant changes to the Planning Act. The amendments will repeal the Ontario Municipal Board Act and continue the Ontario Municipal Board (the “OMB”) under the name of the Local Planning Appeal Tribunal (the “LPAT’’). Changes to other legislation including the Conservation Authorities Act, were also incorporated in this Bill.

While many question marks remain, one thing is clear: Bill 139 will change Ontario’s land use planning system as we know it.

Bill 139 contains substantive limits on rights of appeal from municipal decisions on Official Plans and Zoning By-law amendments (“OPAs and ZBLAs”) and significant procedural changes to the planning appeals process. The appeal grounds for applications for site plan, plans of subdivision, consents and minor variances remain unchanged.

Prior to the enactment of Bill 139, the grounds for appeal for Official Plans and zoning by-laws have been broad and fairly easy to satisfy. Appeals are filed with the municipality or approval authority and then forwarded to the OMB for a Hearing de novo; in other words, the OMB could consider all the evidence independently. The OMB was not limited to determining if the original decision was wrong or unreasonable. Their mandate was to determine if the proposed plan represented good planning and met all policy tests.

The LPAT’s role in assessing proposed OPAs and ZBLAs is much more restricted and is based on very limited grounds for appeal.

For appeals of a municipally adopted or approved Official Plan or OPA, and zoning by-law passed by a municipality, the only basis upon which an appeal can be filed is by showing that the part of the Official Plan which is of concern to the appellant is inconsistent with provincial policy statements or fails to conform with or conflicts with a provincial plan, or fails to conform with the applicable upper tier plan.

For appeals of privately initiated applications for OPAs and appeals of refusals of zoning by-laws, appellants have to demonstrate both:

1. How the existing Official Plan or zoning by-law is inconsistent with provincial policy statements, fails to conform with or is in conflict with a provincial plan, or fails to conform with the upper tier Official Plan; and,
2. How the requested Official Plan achieves consistency and conformity with the provincial policies and plans and the upper tier Official Plan, as applicable.

Thus, the grounds of appeal are very limited and no longer allow for the very broad “good planning” grounds previously permitted. As indicated above, the conformity test requires an applicant to establish that the existing parts of the Official Plan or zoning by-law are inconsistent with and fail to conform to relevant provincial policy and plans. Unless an Official Plan has yet to undergo a conformity exercise, it will be difficult for an applicant to satisfy this part of the test. These grounds may be easier to satisfy for ZBLA appeals, where, as in many cases, municipal zoning by-laws have not been updated to bring them into conformity with more recent OPAs.

In addition, the appeal periods for non-decision have been extended. For OPAs and ZBLAs accompanying OPAs the new period would be 210 days. For standalone ZBLAs, the time has been extended to 150 days.

There are also circumstances where appeals are no longer permitted. For example, where a municipality has included policies in its Official Plans identifying major transit station areas and providing for use, height and density policies in these areas, these policies will no longer be appealable, nor could these policies be amended by private application without permission of the municipality.

Furthermore, where the Minister of Municipal Affairs and Housing is the approval authority of an Official Plan or OPA, there will be no ability to appeal the Minister’s decision to approve the document, even if substantially modified from the plan adopted by the municipality. Municipalities are also precluded from appealing in this circumstance. This restriction is particularly significant in the context of municipal comprehensive reviews. Under Bill 139, only the upper tier or single tier municipality can undertake a municipal comprehensive review, including matters relating to settlement boundary expansions and employment conversions. Because many of these decisions are subject to Ministerial approval, in most cases municipal comprehensive review decisions will not be appealable.

One of the most notable changes going forward is the “two-phase” appeal process which will apply to OPA and ZBLA appeals.

The first-stage of the appeal process is demonstrating to the LPAT that the conformity test referred to above, as applicable, has been met. At this stage, the legislation provides that the LPAT “may”, not “shall”, hold an oral hearing. Even if the appeal proceeds to an oral hearing, parties cannot adduce evidence or call/examine witnesses. Evidence would be based primarily on the written record which was before council when it made its decision. Thus, if an oral hearing is permitted it would be based on this record and oral submissions of the parties. A memorandum from the Ontario government seems to suggest that parties’ oral submissions will be limited to a 75 minute period.

Note that this restriction on adducing evidence and calling witnesses also applies to a non-decision of a subdivision application. Bill 139 is silent on the ability to call witnesses or adduce other evidence with respect to all other planning applications and thus, at this time, the right to do so does not appear to be precluded.

During the first-stage of the appeal process, if the LPAT finds that the conformity test is not met, the appeal does not proceed any further. The appeal is dismissed.

If the LPAT finds that the conformity test is met, the application is returned to Council for an opportunity to make a “second decision”.

If Council makes a decision when the matter returns to it, the applicant can appeal to the LPAT again on the same grounds.

If Council fails to make a decision within the prescribed time frame, the applicant can appeal to the LPAT on any ground.

At this stage, the ability to call evidence and examine witnesses is not specifically precluded under the LPAT Act. However, the Minister has the authority to make regulations governing the practices and procedures of the LPAT and may propose to similarly limit the “second decision” appeals to oral submissions with strict timelines.

In relation to the second appeal, if the LPAT determines that the appellant has met the applicable tests, the LPAT may modify or approve the requested amendment. If the applicable test is not met, the LPAT is required to refuse the appeal.

The hurdles of this new process have led many to choose to file appeals with the OMB prior to the enactment of Bill 139. On December 7, 2017 the Ontario government released proposed transition regulations for public comment on the Environmental Registry. The Regulation proposes that the following appeals are protected and will be subject to the current legislative regime to be dealt with by the OMB:

• Appeals filed before December 12, 2017; and
• Appeals filed before Proclamation (to be determined) if an application is complete before December 12, 2017.

Any applications completed after December 12, 2017, if appealed, are to be dealt with under the new rules and considered by the LPAT. Likewise any appeals filed after Proclamation, will be considered by the LPAT under the new rules.

While the proposed transition Regulations are reassuring for clients with applications in queue with the OMB, there is no guarantee that they will be passed in their current form. Even if they are, the future of planning appeals in Ontario promises to be a whole new world.

Major mass transit projects are popping up across Ontario, encouraged in part by major investments from the Provincial and Federal governments. The cities of Toronto, Mississauga, Brampton, Hamilton, Kitchener-Waterloo and Ottawa are all working on building or expanding transit systems with Light Rail Transit (LRT). Other municipalities are making substantial investments in faster bus systems, including dedicated Bus Rapid Transit (BRT). These projects have the potential to be among the most transformational city-building projects to date for their respective cities, but this major infrastructure work often brings significant disruption on the way to completion.

A major impact of transit development for property owners along the route is the significant expropriation work often necessary to accommodate expanded transit. Municipal right-of-way widenings are often needed which can mean governments look to expropriate parts of properties, or sometimes entire properties along a transit route. When this happens, the expropriating authority has significant powers to take land for their use under Ontario’s Expropriations Act.

Expanded rapid transit may bring public benefits, but those benefits must be balanced with the protection of existing property interests. The basic principle for expropriation compensation was set out by the Supreme Court in Toronto Area Transit Operating Authority v. Dell Holdings Ltd. [1997] 1 SCR 32:

There is a presumption that owners will be fully compensated for all losses resulting from an expropriation – this includes costs for reasonably incurred professional fees from challenging compensation amounts.

The Expropriations Act sets out the procedures available to owners to ensure that they are properly compensated for the property they have lost. The Act also provides that owners are reimbursed for the reasonable professional fees that they incur to achieve this. The goal of the Act is to make owners whole.

Therefore, owners need not worry.  While expropriations for major transit infrastructure have increased in recent years and will likely continue to do so for the foreseeable future, affected landowners should receive fair compensation for loss of private property.

On August 15th, 2017, in association with Urban Land Institute Toronto, Davies Howe LLP hosted a roundtable presentation and discussion on the new Growth Plan for the Greater Golden Horseshoe. The new Growth Plan was released on May 18th and came into force July 1st, 2017 as part of the Province of Ontario’s Coordinated Land Use Planning Review.

Davies Howe LLP was pleased to host this event in our new office, which showcased the capacity and functionality of our new multi-purpose boardroom.

The firm proudly looks forward to hosting more events in our new office.

As Canada moves forward with Aboriginal reconciliation, the issue of the Duty to Consult Aboriginal peoples will arise more frequently in land development. The Duty to Consult exists whenever the Crown, meaning the Federal or Provincial governments knows, or should have known, of the existence of the Aboriginal and treaty rights. As sign of things to come, the Province has recently included language in the Growth Plan recognizing that Aboriginal communities may have Aboriginal rights within the Plan area.

 The law surrounding the Duty to Consult is just beginning to develop. Along with the development of the law comes implications for land development. A recent case, Saugeen First Nation v Ontario, serves as a reminder of the following important implications of the Duty to Consult:

 ·         As a matter of Constitutional importance, the Crown needs to assess the level of consultation required when the issue of Aboriginal and treaty rights arises.

·         The Duty to Consult, if it is not discharged, can halt progress on a project, despite other approvals being obtained. In Saugeen the project was a quarry that had gone through a ten year approval process, and had been approved. Notwithstanding the approval, the licence was set aside due to a failure to discharge the Duty to Consult.

·         Consideration should be given to joining any approval process and the Duty to Consult to reduce the risk of project delay and minimize duplication.   

·         The Duty to Consult does not rest on the proponent of a project. Even though some part of the process of consultation may be delegated to a proponent, the Duty to Consult always remains a responsibility of the Crown.

·         The Duty to Consult may require the Provincial or Federal governments to fund the expertise required to allow for meaningful engagement of Aboriginal interests. In Saugeen, the Province was required to pay $10,914 to allow Saugeen First Nation and Chippewas of Nawash Unceded First Nation to engage experts to assist in their review of the project.

Though Saugeen deals with a quarry, the principles will apply to any development where there are known or suspected Aboriginal Rights. Though it is impossible to anticipate where the Duty will arise without specific information, projects where the duty to consult might arise include:

·         boundary expansions,

·         hamlet developments,

·         water oriented development,

·         economic development projects like highway transportation depots,

·         infrastructure projects, such as, highways and airports, and,

·         resource development projects.   

The City of Toronto has begun regulating the management, operation and maintenance of apartment buildings in Toronto. This includes new maintenance and communication obligations imposed upon owners and operators/managers of rental buildings, as well as penalties for their contravention.

The City’s new obligations and standards, found in Chapter 354 of the City of Toronto Municipal Code (the “Apartment Standards By-law”) came into effect on July 1, 2017.

The requirements apply to all owners and operators of purpose-built rental buildings that are:

1. 3 or more storeys in height; and
2. Contain 10 or more rental units;

Every person convicted of a violation under the new Apartment Standards By-law, is guilty of an offence and can be fined up to $100,000 and up to $10,000 for each day the offence continues.  The City can also apply special fines to every person who obtains an economic advantage by contravening these new obligations.

As the fines for contravening the new Apartment Standards By-law are significant, owners and operators should educate themselves on the new obligations, which include:

1. Yearly registration and payment of associated registration and inspection fees;
2. Instituting a tracking system to document tenant requests and owner/operator responses;
3. Creation of a tenant notification bulletin board to notify tenants of upcoming service disruptions, certain City-issued orders, City scheduled audits, pest treatment activities and other items;
4. Adherence to a pest management inspection schedule and daily common area cleaning inspections;
5. Preparation of a waste management plan, cleaning plan, and a “state of good repair capital plan”; and,
6. Requirements for the owner/operator to maintain records demonstrating compliance.

The deadline for registration and payment of registration and inspection fees has been extended for this year only to September 30, 2017.  Going forward, applicable purpose-built rental buildings must be registered between July 1 – 31 of each year.

The Apartment Standards By-law also authorizes City staff to conduct routine site visits and pre-audits of all apartment buildings to determine whether the apartment building complies.

The City can also prohibit renting a unit to a new tenant if that unit is, or has been, subject to a Property Standards order. The City will also be empowered to prohibit renting a unit to a new tenant if pests are presently an issue in the unit.

For additional information about the new Apartment Standards By-law and how it may impact your interest in a rental building, do not hesitate to contact Davies Howe LLP.