Hearing Recordings (Representative)

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

29 (1) No person shall,

(a) take or attempt to take a photograph, audio or video recording or other record capable of producing or transmitting visual or aural representations by electronic means or otherwise,

(i) at a hearing,

(ii) of any person entering or leaving the room in which a hearing is to be or has been convened, or

(iii) of any person in the building in which a hearing is to be or has been convened if there is reasonable ground for believing that the person is there for the purpose of attending or leaving the hearing, other than in an area of the building designated by the tribunal for the purpose and with the person’s consent;

(b) publish, broadcast, reproduce or otherwise disseminate a photograph, recording or record taken in contravention of clause (a); or

(c) broadcast, reproduce or otherwise disseminate an audio recording described in clause (2) (b). 2021, c. 25, Sched. 27, s. 3.

(2) Subsection (1) does not apply with respect to,

(a) the unobtrusive making of notes or sketches of events at a hearing by a person;

(b) the making of an audio recording at a hearing, unobtrusively and in a manner authorized by the tribunal, by a representative, a party acting on their own behalf or a journalist, for the sole purpose of supplementing or replacing notes; or

(c) subject to the authorization of the tribunal, any act referred to in subsection (1),

(i) if it is required for the presentation of evidence, the making of a record or any other purpose of the hearing,

(ii) with the consent of the parties and witnesses, or

(iii) in connection with any ceremonial proceeding. 2021, c. 25, Sched. 27, s. 3.

Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., 1989 CanLII 38 (SCC), [1989] 2 SCR 778

The Legislation

Section 109 of the Insurance Act provides:

109. Where there has been imperfect compliance with a statutory condition as to the proof of loss to be given by the insured or other matter or thing required to be done or omitted by the insured with respect to the loss and a consequent forfeiture or avoidance of the insurance in whole or in part and the court considers it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it considers just.

Similar provisions are found in Insurance Acts throughout Canada.

The Issues

The only issue is whether s. 109 empowers the Court to grant relief against forfeiture for breach of a contractual condition prescribing a period within which notice of a claim must be given.

This issue raises two sub-issues:

(1)Is s. 109 confined to statutory conditions as opposed to contractual provisions; and

(2)If s. 109 extends to contractual conditions, does failure to give notice within the time prescribed by the bond constitute "imperfect compliance" within s. 109 or, alternatively, "non-compliance"?

Discussion

1.Is s. 109 Confined to Statutory Conditions as Opposed to Contractual Conditions?

The term breached in the instant case was a term of the contract: it was not a statutory condition.  Canadian Surety submits that the Court has no power to grant relief under s. 109 of the Insurance Act because the section is confined to statutory conditions.   The wording of s. 109 is ambiguous.  It can be read as empowering the Court to relieve against forfeiture "Where there has been imperfect compliance with a statutory condition as to: (1) the proof of loss to be given by the insured; or (2) other matter or thing required to be done or omitted by the insured . . . ." (Punctuation and numbering added).  On this reading, s. 109 is confined to statutory conditions, the entire phrase which follows modifying "statutory conditions". This reading of the section is strained;  one feels the word "any" should be added before "other matter".

Alternatively, s. 109 can be read as empowering the Court to grant relief "Where there has been imperfect compliance with: (1) a statutory condition as to the proof of loss to be given by the insured; or (2) other matter or thing required to be done or omitted by the insured . . . ."  (Punctuation and numbering added).   On this interpretation, s. 109 extends to contractual conditions.   This interpretation is also awkward; again, one feels the word "any" should be inserted before "other matter".

The question before us is which of these two interpretations should be adopted.  In my opinion, a number of considerations favour adoption of the second interpretation with the consequent extension of s. 109 to contractual as well as statutory conditions.