Tort Defendant Not Permitted to Call Evidence from Plaintiff's Accident Benefits Assessors

Beasley and Scott v. Barrand, 2010 ONSC 2095 (S.C.J.)

This case involves the interpretation of the new requirements for experts pursuant to Rule 53.

The tort defendants in this trial sought to call evidence from three doctors who had assessed the plaintiff on behalf of his accident benefits carrier. The defendants made efforts to have the doctors brought into compliance with the new Rule 53.03 by having them sign an Acknowledgement of Expert’s Duty.

Justice Moore refused to allow the doctors to testify given that they could not comply with Rule 53.03. They were retained by an insurer that was not before the court, were not treating physicians and their instructions were not clear from the evidence. Justice Moore Held:

I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with Rule 53.03. I say “should” for there may be cases where that is not possible and then the court may consider relieving against non-compliance to ensure a fair adjudication of the issues upon their merits but this is not one of those cases.

This case places great constraints on the ability of the defence to call evidence with respect to the plaintiff’s injuries. It imposes a high hurdle for the defendants in order to call evidence relevant to the plaintiff’s injuries. Perhaps the accident benefits assessors could be called as fact witnesses which would mean r. 53.03 would not apply. It appears that this would be an area that would benefit from appellant intervention.

Before hiring a lawyer...

The GlobeandMail.com has an interesting article entitled Before hiring a lawyer, be sure to do your homework, by Tony Wilson.
You can read it at http://www.theglobeandmail.com/report-on-business/your-business/start/tony-wilson/before-hiring-a-lawyer-be-sure-to-do-your-homework/article1771820/

The Supreme Court of Canada on a Duty to Defend - part 3

Justice Rothstein, for the Supreme Court of Canada in Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 S.C.C. 33., helpfully affirmed that CGL insurance policies are most typically written in three sections, being (i) coverage, (ii) exclusions and (iii) exceptions to the exclusions.

Within the first section, the onus is on the insured to show that the pleadings fall within the initial grant of coverage.

The next section, exclusions, should be read in light of the initial grant of coverage and do not create coverage in themselves. Exclusions only preclude coverage when the claim otherwise falls within the initial grant of coverage.

The third section, exceptions to exclusions, also do not create coverage but bring an otherwise excluded claim back within coverage where the claim fell within the initial grant of coverage in the first place.
Justice Rothstein concludes that the pleadings reveal a possibility of “property damage” and also sufficiently allege an “accident” such that the claim in the pleadings falls within the initial grant of coverage provided by the policy. The insurer, Lombard, then argued that the “work performed” exclusion precludes coverage. Lombard argued that there was no “subcontractor exception” to the exception and therefore work performed by subcontractors was also excluded. However, Justice Rothstein concluded that the exclusion did not clearly exclude subcontractors’ work and that there is a possibility of coverage so that the duty to defend is triggered.

This decision helpfully sets out the law in this complex area in a clear and succinct way. Hopefully this will help eliminate some of the confusion.

The Supreme Court of Canada on a Duty to Defend - part 2

“Leaky condominiums” have become notorious in British Columbia.  In this case, Progressive Homes served as a general contractor and built several housing complexes.  Several actions were initiated against Progressive Homes alleging significant damage to the housing complexes caused by water leaking into each of the buildings.  Progressive Homes sought a defence to these actions from its insurer, Lombard, pursuant to commercial general liability insurance policies. 


The policies require Lombard to defend and indemnify Progressive Homes when Progressive is legally obligated to pay damages because of property damage caused by an occurrence or accident.  Lombard refused to defend the claims and Progressive brought an application for a declaration that Lombard is under a duty to defend.


Justice Rothstein went on to declare that an insurer is required to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer to indemnify the insured to the claim. It is irrelevant whether the allegations in the pleadings can be proven in evidence. What is required is the mere possibility that the claim falls within the insurance policy. In examining the pleadings to determine whether the claim falls within the scope of coverage, the parties to the insurance contract should not be bound by the labels selected by the plaintiff but by the true nature or substance of the claim.

Justice Rothstein, for the Supreme Court of Canada, reiterated some significant principles of insurance policy interpretation, including that when the language of the policy in unambiguous, the court should give effect to the clear language and should read the contract as a whole. Where the language of the insurance policy is ambiguous, courts should prefer interpretations that are consistent with the reasonable expectations of the parties and courts should avoid interpretations that would give rise to an unrealistic result. Where these rules of construction failed to resolve an ambiguity, courts will construe the policy contra proferentem. Subsumed by the contra proferentem rule is that coverage provisions should be interpreted broadly and exclusion clauses narrowly.

Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 S.C.C. 33.

The Supreme Court of Canada on a Duty to Defend - part 1

Recently, the Supreme Court of Canada held, by unanimous decision, that an insurer will be obligated to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer to indemnify the insured for the claim regardless of whether the allegations in the pleadings can be proven in evidence.  What is required is the mere possibility that a claim falls within the insurance policy.   Progressive Homes Ltd. v. Lombard General Insurance Company of Canada, 2010 S.C.C. 33.

The focus of the policy interpretation should first and foremost be on the language of the policy itself.  Justice Rothstein, for the Supreme Court of Canada, carefully reviewed the terms of the insurance policy.  I think this case helpfully emphasizes and reiterates the principle that the terms of the insurance contract itself must be carefully reviewed.  Not all insurance policies are the same and it is important for an insurer or coverage counsel to carefully review the terms of the policy.  The Supreme Court of Canada has emphasized that the duty to defend must be determined on the terms of the insurance policy.

Fraudulent Car Accidents

In today's Globe and Mail (October 4, 2010) it is reported that the Insurance Bureau of Canada is warning about a "concerning trend" of insurance fraud.

"There has been a rise in crashes that are orchestrated to claim lucrative no-fault insurance payouts and, to avoid detection, perpetrators are increasingly involving innocent drivers in their pre-planned collisions."

According to the article, "Toronto is the hotbed, with organized crime being linked to several staged accidents. Insurance industry investigators involved in a recent probe, dubbed Project 92, say they’ve identified more than 40 staged car accidents carried out by one particular crime ring alone, 17 of which have already been criminally investigated. Police have laid 291 charges against 39 individuals in the sting, 20 of whom have been convicted."

http://www.theglobeandmail.com/report-on-business/insurers-beware-national-watchdog-raises-alarm-for-fraud/article1740676/