Cam Godden retired from Bell Temple in March 2019, after having been the face of the firm for over 45 years. He started at Bell Temple as an articling student, and went on to build a distinguished career as one of the industry’s leading insurance defence lawyers. He garnered wide-ranging respect from his peers and the judiciary for being a vigorous and imaginative litigator with the ability to distil complex legal issues into simple, understandable components to achieve practical resolution.
Cam’s thinking outside the box served his clients well. He spearheaded the implementation of joint defence strategies used by insurers to respond to complex and multi-party litigation. Such work included “Operation Fog“, which multi-suit litigation involved more than 70 vehicles in one of Canada’s worst traffic accidents. This strategy resulted in the litigation being processed in an efficient manner at great costs savings to the insurers. Another model of such strategy is the “Dock Defence” file, where 188 parties and entities were sued as occupiers by a paraplegic claimant.
His experience with complex and multi-million dollar claims also led, in part, to the Ontario Legislature passing the Budget Measures Act, 2005 (No. 2). This involved amendments to the Compulsory Automobile Insurance Act, Highway Traffic Act and the Insurance Act. The legislation was intended to limit the vicarious liability of leasing/rental companies. It is referred to in the practice as the “Cam Godden Amendment”.
Cam was certified by the Law Society of Ontario as a Specialist in Civil Litigation. In 2009, he was recognized by the Ontario Trial Lawyers Association for being a Leader in the Defence Personal Injury Bar, which award is conferred to only one defence lawyer in Ontario per year.
Besides his numerous professional accomplishments, Cam was a robust personality in the office and was known for his gregarious wit, boundless energy, and unfailing courtesy with colleagues and clients. He was also committed to developing junior lawyers into outstanding litigators by providing an invaluable resource for legal advice and mentorship. While he will be sorely missed in the office, he will not be forgotten. The firm, and Partnership, thanks Cam for his years of devotion and service to Bell Temple LLP, and we are proud to call him our friend.
The Budget Measures Act, 2005 (No. 2)
In response to the Browne case, the Ontario legislature has passed the Budget Measures Act, 2005 (No. 2.). Amendments have been made to the Compulsory Automobile Insurance Act, the Highway Traffic Act and the Insurance Act. Such amendments address among other things vicarious liability of leasing and rental companies and the capping of their exposure. Of import are the Priority Rules which impact upon the insurers of personal vehicles of those renting a motor vehicle.
Under the Schedule 4 Amendments to the Compulsory Automobile Insurance Act, the definition of lessee under Section (1) has been repealed and the following substituted:
Under the previous definition, 30 day plus lessees were obliged to insure their 30 plus day leased vehicle. Now 30 plus day renters are also obliged to do so under the Act.
The Budget Measures Act Schedule 10 Amendments to the Highway Traffic Act create vicarious liability upon a lessee by reason of negligence in the operation of the motor vehicle similar to the vicarious liability now owed by an owner. Lessee is defined as
The amended Section 192 (3) stipulates:
The amended Section 192 (6) stipulates that:
What are some of the practical consequences of the HTA amendments? Previously in circumstances in which a driver was someone other than lessee, a Plaintiff would sue the driver, the lessee and the lessor. There was no liability upon the lessee as he / she / it were not vicariously liable under the previous HTA wording. Under the amended Section 192, driver, lessee and lessor are jointly and severally vicariously liable. In policy limits cases, subject to our comments below as to Priority Rules and capping of a lessor's exposure, this fact situation creates new exposure upon a lessee. If a wife drives a car leased by the husband, the lessee's policy responds for driver, lessee and lessor. Assuming the lessor's limits are capped, a Plaintiff then looks to recover personally against the wife driver and, now, the lessee husband as if he was owner of the vehicle. If an employee drives a car leased by his employer Corporation, the corporation is vicariously liable whether the employee was acting in the course of his employment or not.
The Schedule 12 amendments to the Insurance Act address the inclusion of a lessee as defined in Section 192 of the Highway Traffic Act as "owner".
The Insurance Act amendments address the order in which policies are to respond. The added Section 277 (1.1) of the Insurance Act stipulates:
Accordingly, as in the past, when the lessee arranges coverage and the lessor is named as an Additional Insured, such coverage is primary. If the lessee was not the driver, there may be available Section 2.2.3 Other Automobile Coverage which would be next in priority. The next coverage to respond would be the lessor's coverage.
However, the newly added Section 277 applies to an automobile rented for any period of time. Before the amendment, in such circumstances, Section 277 (1) would apply. The renter's coverage would be considered first loss insurance. The new 277 (1.1) stipulates that we first must look to the policy under which the person who is renting the automobile is entitled to indemnity as an insured named in the contract.
Pre-Budget Measures Act, if an insured rented a Temporary Substitute Automobile, the rental company's policy would have priority over the Section 2.2.2 Temporary Substitute Automobile provisions of the OAP 1. The case of Perduk v. Hyslop  O.J. No. 1542 stands for the proposition that in such circumstances the renter / owner's policy was primary. That no longer is the case. This same interpretation would apply in considering primary coverage under the Other Automobile Provisions of the OAP 1. The Other Automobile coverage would be considered insurance available under a contract evidenced by a motor vehicle liability policy under which the person renting the automobile is entitled to indemnity as an insured named in the contract.
Accordingly, the OAP 1 of an insured's policy would be considered first loss insurance in the order of priority should coverage apply under the Section 2.2.3 Other Automobile and/or Section 2.2.2. Temporary Substitute Automobile provisions. In these rental circumstances the next policy in priority would be the owner / renter of the automobile. If the person renting the automobile has no personal coverage, the renter's / owner's policy would respond.
* That is why in the FSCO Bulletin No A-05/06 under the title Overall Effect of Vicarious Liability Changes it states:
We then look to the liability of lessors / renter capping provisions of the amendments and the adding of Section 267.12 under the Insurance Act. Subsection 3 limits the lessors / renters exposure as follows:
The cap is reduced in accordance with Section 267.12(1). It states:
Accordingly in the typical circumstances when a lessee arranges One Million Dollar coverage, the lessor's liability exposure as owner is nil. Subsection 4 notes exceptions. If, for example the rental company is liable for renting a defective vehicle, which would be outside the ambit of any liability imposed under the Highway Traffic Act, the cap would not apply. The cap would also not apply in respect of a motor vehicle used as a taxicab, livery vehicle or limousine for hire.