Nick de Koning

The plaintiff, Rose Marie Sprowl, slipped and fell on ice in the parking lot of Bridgeport Plaza in Waterloo, Ontario, suffering a hip fracture.

She alleged that the defendants, as occupiers of the plaza, failed in their duty under the Occupiers' Liability Act to keep the premises reasonably safe.

The court found that the winter maintenance contractor, Clintar, failed to adequately monitor, salt, and inspect the parking spaces, and that the owner, First Capital, failed to ensure the work was properly done.

Both were found liable for the plaintiff’s injuries.

The court rejected arguments of contributory negligence and found the defendants 100% responsible for damages.

This appeal concerned the interpretation of a comprehensive homeowners insurance policy's "Personal Excess Liability Policy" endorsement, specifically its interaction with the insured's automobile insurance policy (OPCF 44R) and whether the primary auto policy limits needed to be exhausted before recourse to the excess endorsement.

The motion judge had dismissed the action against the insurer, finding that the tortfeasor was not an "inadequately insured motorist" under the OPCF 44R definition and that the OPCF 44R limits had to be exhausted.

The Court of Appeal found that the motion judge erred in applying the OPCF 44R definition of "inadequately insured motorist" to the Excess Endorsement and in requiring exhaustion of the OPCF 44R limits, as the Excess Endorsement was intended to provide additional, "stacking" coverage.

The appeal was allowed, and the motion dismissed.

A case conference was held in a CCAA proceeding, requested by the Purchaser of the Applicants' business, to seek directions on the interpretation of a vesting order concerning a pre-filing personal injury claim.

The parties agreed that any necessary motion for interpretation should be heard by the supervising CCAA court.

They also cooperatively discussed limiting recoveries in the personal injury actions to available general liability insurance proceeds and lifting the stay for that limited purpose, working towards a consent order.