I was talking to my father about the Ottawa Freedom Convoy Protests and what to do about them. This was before PM Trudeau announced the that his government would be implementing the *Emergencies Act and before the police finally did some real police work and cleared out most of the trucks and protesters.
*Note: Canada was NOT facing a National Emergency when PM Trudeau accounced that his government would be implementing the Emergencies Act. The protests at the border crossings in Coutts Alberta and Windsor Ontario had long been cleared up. While there were smaller protests happening sporadically across Canada; these protests did not amount to a NATIONAL EMERGENCY. The protests in Ottawa amounted to a localized emergency isolated to a few blocks of downtown Ottawa. While these protests may (or may not) have presented real or potential security issues; these were localized issues which the municipal police and provincial police ought to have dealt with. But they had a really hard time dealing with them for reasons that I, nor will many Canadians really understand. Did they not see this coming!?!?!?!?! Had they not seen a protest before? Why were they so unprepared and so unwilling to act? How is it that the G-20 Toronto protests, Black Lives Matters protests and any Indigenous protests (BC, Belleville, near any pipeline) get cleared up so quickly by police (often using force), yet for this protest it seemed like authorities rolled out the red carpet to the protesters? But that’s a topic for another day, perhaps from a Civil Rights Lawyer.
Back to the topic of what amounts to be a National Emergency and whether or not the Ottawa Truck Protest qualified as such. The definition of “National Emergency” under the Emergencies Act is as follows:
3 For the purposes of this Act, a national emergency is an urgent and critical situation of a temporary nature that
(a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or
(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada
and that cannot be effectively dealt with under any other law of Canada.
The Ottawa Police Service and the Ontario Provincial Police ought to have been able to deal with this situation without the implementation of the Emergencies Act. Implementing the Emergencies Act should only be done when facing a real National Emergency. While it’s embarrassing that the capital city of a G7 nation can be blockaded by a few trucks, this is not a National Emergency. This is a time for the Ottawa Police, the OPP and the National Capital Commission to reflect on the lack of preparedness, lack of urgency and lack of security in Ottawa. It should have never reached a point whereby Ottawa was blockaded for 3 weeks. But I digress back to topics as they relate to personal injury law and car insurance to keep things on point.
The first thing my father said is that the best non violent way to get the trucks out of Ottawa would be to have insurers go to Ottawa and take away or suspend the insurance on the trucks because they are in breach of their policies.
How does that work and what’s the rationale behind suspending insurance?
The trucks are commercial vehicles. They are insured for commercial purposes. Large insurers did not insure these vehicles to be props in political theatre or for a protests. There were stories about the protests having lots of propane, gasoline and BBQs around. Sounds like a fire hazard or explosion hazard to me. Insurance underwriters would not be pleased because they never took these risks into consideration when underwriting these commercial truck policies. They were not intended to be insured for being used in a political protest. As such, I would be curious to see what position large car insurers take on an potential accident benefit claims arising from the use or operation of these vehicles at or during the protests (before it was announced that insurance might be suspended).
If insurers suspended the insurance on these vehicles because they were not being used for their contemplated purpose under their policies of insurance, it’s likely you would have seen fewer trucks in Ottawa; or the trucks which were there may have left the scene much faster.
That would have been a great non-violent way to curtail the situation; which was later implemented (or threatened) by the Federal Government.
Personal Injury Lawyers often see this tactic of denying coverage to accident victims in injury cases. Coverage can be denied if one was driving without insurance. That’s obvious. But insurers like to probe on other ways to deny coverage.
Was the person an excluded driver under the policy?
Was the driver properly licensed to operate a motor vehicle?
Was the driver operating the vehicle with a suspended license; or were there any restrictions on his/her license?
Did the insured misrepresent what they were using their vehicle for?
We often see this when people use their residential vehicles for commercial or business purposes.
Once the notion of commercial or business purposes is explored, insurers quickly pivot towards escaping liability on the issue that there was no coverage. Or instead try to pass the blame over to WSIB suggesting that because the vehicle was being operated in a commercial or business context that it’s a work related injury and therefore the case ought to go through the WSIB and not the civil justice system.
We see the same tactics being used in personal injury cases outside of the car accident arena. If you slipped and fell in your employer’s parking lot; or in the course of employment at work the insurer will quickly shift the blame onto the WSIB system. Why? Because they can and because it saves the employer and their insurer lots of money. The employer pays for WSIB premiums which are inexpensive compared to private commercial general liability insurance. The Workplace Safety and Insurance Act also prevents Schedule 1 employees from suing their own employer. So even if your employer is terrible and has no regard for the safety of their employees, the employee CANNOT sue his/her own employer for a workplace injury or an injury arising out of his or her own employment. Things like walking across the parking lot at work have been declared as activities which arising out of your own employment which have nullified lawsuits.