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December 29, 2010

Automobile Policy Exclusions

The Superior Court of Justice has re-emphasized the requirement that an insurer must take appropriate steps to bring exclusions to the insured’s attention where the effect of an exclusion will have the harsh result of denying coverage under an automobile policy.

In GMAC Lease Co. Corp v. Lombard Insurance (2007), 87 O.R. (3d) 813, at paragraph 9, the Court of Appeal held that an insurer must provide the insured with a copy of every endorsement, per section 232(3) of the Insurance Act. The fact that an insurer can provide a certificate of insurance instead of the policy does not take away the duty imposed by section 232(3).

The obligation then is to provide the policy or certificate in an improved form as well as a copy of every endorsement. Since the insurer had failed to comply with section 232(3) of the Insurance Act by failing to deliver a copy of the OPCF 28A endorsement, excluded driver, the insurer cannot rely on the exclusion.

Justice Chapnick more recently in Chen Estate v. Chung, [2010] O.J. No. 5086 (SCJ), reiterated the Ontario Court of Appeal’s decision in GMAC Lease Co. Corp. v. Lombard Insurance.

December 22, 2010

Statutory Third Party

Ahmed v. Maharaj, [2010] O.J. No. 4922 (S.C.J.)

Here's a decision that might be useful to counsel for a Statutory Third Party. There were two issues in this motion:

1. Whether the Statutory Third Party is entitled to pursue a crossclaim against one of the co-defendants; and
2. Whether the Statutory Third Party could be compelled to answer questions on examination for discovery about why it denied coverage.

Justice Stewart held as follows:

1. The Statutory Third Party is entitled to bring a crossclaim, since the Insurance Act does not expressly limit it to the right to file a Statement of Defence;
2. The Statutory Third Party is not required to answer questions about why coverage was denied. Generally issues of coverage and issues of liability are to be kept separate. A plaintiff who wishes to challenge a denial of coverage may do so following judgment pursuant to s. 258(1) of the Insurance Act but until that happens, issues of coverage are generally not relevant.

December 15, 2010

Settlement of Accident Benefits is Not an Admission Threshold Met in Tort

Anand v. Belanger, 2010 ONSC 2345 (CanLii)

The plaintiff was injured when she was struck by a stolen vehicle. State Farm was the plaintiff’s accident benefits provider, and was named as a tort defendant pursuant to the uninsured motorist provisions of the policy.

State Farm paid IRBs until the 104 week mark, when it terminated benefits on the basis that Ms. Anand did not suffer a complete inability to engage in any employment for which she was reasonably suited by education, training or experience. At a mediation, the parties settled past and future IRBs for $100,000. Ms. Anand signed a release that included a provision that the settlement was not an admission of liability.

At the tort trial, the plaintiff sought to preclude State Farm from alleging the plaintiff did not meet threshold on the basis that it had paid for past and future IRBs, which constituted an implicit admission.

Justice Stinson held that payment of IRBs does not amount to an admission in the tort action. The plaintiff signed a release specifically agreeing that the settlement was not an admission of liability. In addition, in its capacity as the accident benefits carrier, State Farm had contractual duties and a duty of utmost good faith in dealing with its insured, Ms. Anand. As a tort defendant, State Farm owed no such duties. Accordingly, State Farm was free to argue the plaintiff did not meet threshold.

Justice Stinson's decision is sensible, especially given the differing characteristics of accident benefits and tort. It also underscores the importance of including a paragraph in releases that settlement is not an admission of liability.

December 13, 2010

Defence "Life Care" Assessment

This entry was prepared by Alexandra Lacko, articling student.

In the case of Vanderidder v. Aviva Canada Inc., 2010 ONSC 6222, the moving party sought an order compelling the plaintiff, Vanessa Vanderidder to participate in a life care plan assessment by a certified life care planner.

The action arose out of an accident in which the plaintiff sustained an injury when a rock fragment fell from a truck, deflected from the road surface, went through her open car window and struck her in the head. The plaintiff alleged that she sustained serious injuries which caused permanent and serious disfigurement and serious impairments of important physical, mental and psychological functions. She also alleged that she continued to suffer and required treatment, and would continue to suffer from the effects of her injuries for an indefinite period of time. The plaintiff claimed damages for future health care costs as a result of the effects of the injuries on the activity of the plaintiff.

In support of Vanessa Vanderidder’s claim for future health care costs, counsel for the plaintiff served a future care cost report authored by Keith C. Hayes, Ph.D. The report was analysed by an actuary and placed a present value on the plaintiff’s future health care needs at $719,901.00.

As a result of the substantial monetary claim of the plaintiff, the moving party wished to have Vanessa participate in a life care assessment/future care cost assessment by an individual who had a Bachelor of Science in Occupational Therapy and was defined as a “practitioner” pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E.23. The basis for the moving party’s motion for the life care assessment/future care cost assessment was prejudice.

The position of the responding party, Vanessa Vanderidder, was that the moving party had not deduced any evidence that the requested assessment was necessary to aid a health practitioner as a diagnostic tool.

Plaintiff’s counsel asked Justice Granger to recuse himself from hearing the motion on the grounds that in Kozhani v. Gelbart, [2010] O.J. No. 1348, Justice Granger ordered the plaintiff to submit to a life care assessment/future care cost assessment by an occupational therapist without a health practitioner requiring the assessment as a diagnostic tool. Plaintiff’s counsel suggested that based on Justice Granger’s earlier decision, there was a reasonable apprehension of bias and that Granger J. should recuse himself from hearing the motion. Justice Granger went through the test for bias and found that plaintiff counsel’s apprehension was an apprehension of lack of success rather than an apprehension of bias and Justice Granger did not recuse himself.

In coming to his decision on the assessment, Justice Granger underwent an analysis of the case law in the area of non-medical expert assessment. Justice Granger stated that:

It would seem to me that if Vanessa Vanderidder elects to place before the court evidence concerning her future care needs as determined by a non-health practitioner, she can hardly be heard to claim that it would be unfair to order her to submit to such an assessment by a person of the choosing of the defence.

The Court concluded that “fairness can only be achieved by ordering Vanessa Vanderidder to participate in a life care assessment by a person other than a “health practitioner” notwithstanding that there is a lack of evidence before me from a health practitioner that such an assessment is needed by a health practitioner as a “diagnostic aid.”

The plaintiff was therefore ordered to participate in a life care plan assessment by the certified life care planner and occupational therapist. The Court’s goal was to achieve fairness in the trial process in order to create a “level playing field” for trial.

December 8, 2010

An Interesting Twist on Beasley v. Barrand

The fallout from the Beasley v. Barrand decision continues. You may recall that in Beasley, the Court refused to permit expert evidence at trial from accident benefits assessors.

In Jeffrey v. Baker, [2010] O.J. No. 4415 (S.C.J.), the defendant sought to compel the plaintiff to attend at an orthopaedic IME. She had already attended at two IMEs with a physiatrist and psychiatrist, and the defendant had lost a motion in 2009 to compel two additional examinations.

Justice Quigley allowed the motion and ordered the plaintiff to attend the orthopaedic assessment. One of the reasons for allowing the IME was that prior to enactment of the new rule 53 the defendant would have been at liberty to call accident benefits assessors to give expert evidence at trial, but given the rule change this is no longer permitted, as made clear in Beasley. The Court was satisfied there was a real risk the defendant would be left without evidence to refute the plaintiff’s claims if the orthopaedic IME was not permitted.

December 1, 2010

Tort Defendant May Call SABS Assessors as Fact Witnesses

You may recall that we recently blogged on the case of Beasley v. Barrand, in which Justice Moore held that accident benefits assessors could not be called as experts to testify for the tort defendant at trial. The link is here:


In Anand v. State Farm (unreported decision, April 23, 2010), Justice Stinson followed Justice Moore’s decision, but held that the accident benefits assessors could be called as fact witnesses. They were not permitted to testify about their conclusions or opinions, but could testify about their observations of the plaintiff.