tag:blogger.com,1999:blog-14433355041328872572024-02-20T02:00:25.365-05:00Ontario Insurance Law BlogA weekly update of cases pertaining to the practice of insurance defence.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.comBlogger332125tag:blogger.com,1999:blog-1443335504132887257.post-19515746107781696972016-01-28T14:00:00.000-05:002016-01-28T14:00:04.295-05:00Attendant Care Benefits Provided by Family Members
<span style="font-family: Calibri;">Section 2 of Ontario Regulation 347/13 came into force on February 1, 2014. It provides that accident benefits for attendant care provided by a family member are limited to the family member's economic loss. A recent case dealt with whether the provision should be applied retrospectively. Justice Quinlan held that it should not.</span><br />
<br />
<div class="MsoPlainText" style="margin: 0cm 0cm 0pt;">
<span style="font-family: Calibri;">In <em><a href="http://canlii.ca/t/glvc4" target="_blank">Davis v Wawanesa</a></em>, 2015 ONSC 6624 (S.C.J.), the plaintiff was involved in a motor vehicle accident in November 2013, before the
Regulation came into force , but the claim for attendant
care services was made after the Regulation was enacted. </span><span style="font-family: Calibri;">It was the plaintiff's position that since she was involved in the
accident prior to the date that the Regulation came into force, there should
not be a cap on the attendant care benefits. <o:p></o:p></span></div>
<br />
<div class="MsoPlainText" style="margin: 0cm 0cm 0pt;">
<span style="font-family: Calibri;">The parties differed in their positions as to whether or
not Regulation 347/13 should apply retrospectively or prospectively. The
Regulation is silent on the issue of whether it applies to accidents that
occurred before its enactment. The court held that since the presumption
against retrospectivity was not rebutted by clear, legislative intent, the law
that applied was the law that was in force at the time of the accident. Thus,
Section 2 of Ontario Regulation 347/13 did not apply and the attendant care
benefits were not capped at the economic losses suffered by the attending
family member.<o:p></o:p></span></div>
<br />
<div class="MsoPlainText" style="margin: 0cm 0cm 0pt;">
<span style="font-family: Calibri;">The court accepted that attendant care benefits are a
contractual right to which an injured person is entitled and the plaintiff had
a vested right to payment of the attendant care benefit to which she was
entitled on the date of her accident. Regulation 347/13 had a substantive
impact on the plaintiff's right to attendant care benefits, so the court held
that retrospectivity in this case would be undesirable. Since the Regulation interfered with the plaintiff's
substantive rights, the court held that it should not apply
retrospectively.<span style="mso-spacerun: yes;"> </span> <o:p></o:p></span></div>
Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-33425280937842334422016-01-20T11:00:00.000-05:002016-01-20T11:00:17.232-05:00The Importance of Clearly Drafted Waivers<span style="font-family: inherit; font-size: x-small;">
</span><br />
<div class="MsoNormal" style="-ms-text-justify: inter-ideograph; margin: 0cm 0cm 0pt; text-align: justify;">
<span style="mso-bidi-font-family: Arial;"><span style="font-size: x-small;"><span style="font-family: inherit;">The recent Superior Court of Justice
decision of <i style="mso-bidi-font-style: normal;"><a href="http://canlii.ca/t/gkxqm" target="_blank">Levita v Crew</a></i>, 2015 ONSC 5316 (S.C.J.) shows the value of a clearly-worded, comprehensive waiver in assisting
the host and participants of an inherently risky activity to avoid
liability.<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></span></div>
<span style="font-family: inherit; font-size: x-small;">
</span><br />
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<span style="mso-bidi-font-family: Arial;"><span style="font-size: x-small;"><span style="font-family: inherit;">The plaintiff, Mr. Levita, and the
defendant, Mr. Crew, were both players in a hockey league
operated by the defendant, True North Hockey Canada. The league operated with a
multi-tiered penalty system which penalized intentional contact and
included sanctions up to and including ejection from the league. </span></span></span><span style="mso-bidi-font-family: Arial;"><span style="font-size: x-small;"><span style="font-family: inherit;">Prior to the start of each season the
league distributed a waiver which outlined the risks inherent in ice hockey,
the potential consequences of these risks, and an acknowledgement that by
signing this waiver a player was accepting these risks by stepping onto the ice
and playing. This waiver was distributed in each team’s locker room before the
first game of the season: no player was permitted on the ice until he had
signed. <o:p></o:p></span></span></span></div>
<span style="font-family: inherit; font-size: x-small;">
</span><br />
<div class="MsoNormal" style="-ms-text-justify: inter-ideograph; margin: 0cm 0cm 0pt; text-align: justify;">
<span style="mso-bidi-font-family: Arial;"><span style="font-size: x-small;"><span style="font-family: inherit;">The plaintiff alleged Mr. Crew deliberately attempted to injure him after he had passed the
puck. Mr. Crew's version was of an accidental shove while trying to take the puck. </span></span></span><span style="mso-bidi-font-family: Arial;"><span style="font-size: x-small;"><span style="font-family: inherit;">Mr. Levita broke his tibia and fibula to the
extent that it required multiple surgeries to repair. <o:p></o:p></span></span></span></div>
<span style="font-family: inherit; font-size: x-small;">
</span><br />
<div class="MsoNormal" style="-ms-text-justify: inter-ideograph; margin: 0cm 0cm 0pt; text-align: justify;">
<span style="mso-bidi-font-family: Arial;"><span style="font-size: x-small;"><span style="font-family: inherit;">The court held that the conflicting
stories of the incident made it impossible to determine whether Mr. Crew
deliberately or recklessly injured Mr. Levita, noting that testimony had
indicated that ice conditions were such that even minor, non-penalty worthy
contact could lead to this outcome. Mr. Crew was found not liable to the
plaintiff. <o:p></o:p></span></span></span></div>
<span style="font-family: inherit; font-size: x-small;">
</span><br />
<div class="MsoNormal" style="-ms-text-justify: inter-ideograph; margin: 0cm 0cm 0pt; text-align: justify;">
<span style="mso-bidi-font-family: Arial;"><span style="font-size: x-small;"><span style="font-family: inherit;">The court also dismissed the action against the league. Firestone J. </span></span></span><span style="mso-bidi-font-family: Arial;"><span style="font-size: x-small;"><span style="font-family: inherit;">held the waiver was clear and unambiguous as to the
risks and dangers that a player was accepting by signing it and agreeing to
play. The court did not give credence to the plaintiff’s claim to have not
understood the waiver prior to signing it, noting that the plaintiff was a
lawyer by trade who understood the “legal significance of signing a waiver
document”. The court found that even if the league had been negligent in its
duty to the plaintiff to provide a safe league in which to play hockey, the
waiver provided it a complete defence to the claims against it. <o:p></o:p></span></span></span></div>
<span style="font-family: inherit; font-size: x-small;">
</span><br />
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<span style="font-size: x-small;"><span style="font-family: inherit;"><span style="-ms-layout-grid-mode: line; font-family: "Arial",sans-serif; mso-ansi-language: EN-CA; mso-bidi-font-size: 12.0pt; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-CA; mso-fareast-theme-font: minor-fareast;"></span></span></span> </div>
Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-48480582493513182252015-12-02T11:00:00.000-05:002015-12-02T11:00:09.566-05:00Limitation Periods in Actions Against Police
<span style="font-family: Calibri;">The Court of Appeal recently upheld a motions court
judge's decision granting summary judgment in an action against police based on an expired limitation
period .<o:p></o:p></span><br />
<span style="font-family: Calibri;"></span><br />
<span style="font-family: Calibri;">In <em><a href="http://canlii.ca/t/gm6xr" target="_blank">Cassidy v. Belleville</a></em>, 2015 ONCA 794, the plaintiff
alleged she was stopped by police in August 2009, who informed her she was
driving a stolen vehicle and confiscated the car, forcing her to walk
home.<span style="mso-spacerun: yes;"> </span>She alleged she was pregnant at
the time and the incident caused medical complications. She wrote to a lawyer
six days after the incident asking whether she should commence a civil action
but did not pursue a lawsuit at that time.<span style="mso-spacerun: yes;">
</span>Approximately one month later (September 2009), she made a complaint to the Belleville
Police and received a reply in June 2011. The complaint was partially upheld in
November 2012.<span style="mso-spacerun: yes;"> </span>The plaintiff waited
until October 2013 before commencing her action, four years after the incident.<span style="mso-spacerun: yes;"> </span>She argued she did not discover her claim
until after the complaint was upheld as she was unaware of the standard of care
until that time.<o:p></o:p></span><br />
<br />
<div class="MsoPlainText" style="margin: 0cm 0cm 0pt;">
<span style="font-family: Calibri;">The motions judge disagreed, as did the Court of
Appeal.<span style="mso-spacerun: yes;"> </span>Section 5(2) of the <em>Limitations
Act</em> provides a presumption that the limitation period begins to run the date
of the incident unless the contrary is proven and there was nothing to rebut
the presumption.<span style="mso-spacerun: yes;"> </span>Expert evidence was not
needed to discover the claim; the plaintiff was aware of the offending conduct, the identity of the offender and the nature of her injuries from the time of the incident.<span style="mso-spacerun: yes;"> </span>The results of the complaint
investigation may have provided additional information but were not necessary
to trigger the limitation period.<o:p></o:p></span></div>
<br />
<div class="MsoPlainText" style="margin: 0cm 0cm 0pt;">
<span style="font-family: Calibri;"><em>Cassidy</em> is of assistance in police actions, but may also
extend to other circumstances where plaintiffs have attempted to extend
limitation periods by waiting on administrative decisions.<o:p></o:p></span></div>
Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-76867939676433595902015-11-25T11:00:00.000-05:002015-11-25T11:00:07.084-05:00Instructing Letter Does Not Have to be Produced in Advance of ExaminationOne issue that arises periodically in personal injury cases is whether a party must produce counsel's letter of instruction to its expert. In <em><a href="http://canlii.ca/t/gkbqs" target="_blank">Nikolakakos v. Hoque</a></em>, 2015 ONSC 4738 (S.C.J.), Master Graham considered whether the defendant was required to produce the letter of instruction to the plaintiff in advance of the plaintiff attending an independent medical examination.<br />
<br />
Master Graham held that the instructing letter does not have to be produced until the party elects to call the expert at trial. Even after the report is served, the instructing letter does not have to be produced pending the defendant's decision whether to call the expert at trial. As a result, the defendant did not have to produce the letter of instruction in advance of the independent medical examination.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-7624190008817228872015-11-18T15:00:00.000-05:002015-11-18T15:00:03.261-05:00Covenant to Insure Did Not Bar Crossclaim<div style="margin: 0px;">
<span style="font-family: Calibri,sans-serif; font-size: x-small;"><span style="font-size: 11pt;">A recent decision looked at whether a contractor could crossclaim against a subcontractor or whether the crossclaim was barred as a result of the covenant to insure between the parties. <a href="http://canlii.ca/t/gjnwm" target="_blank"> In </a></span></span><span style="font-family: Calibri,sans-serif; font-size: x-small;"><span style="font-size: 11pt;"><a href="http://canlii.ca/t/gjnwm" target="_blank"><em>William Osler Health Centre</em> v <i>Compass Construction Resources Ltd</i></a>., 2015 ONSC 3959 (S.C.J.), the </span></span><span style="font-family: Calibri,sans-serif; font-size: x-small;"><span style="font-size: 11pt;">contractor, Compass, was hired by the plaintiff to do kitchen renovations at the Hospital and subcontracted part of the project to Black Creek. The contract between the Hospital and Compass contained a covenant to insure which required Compass to obtain all risks property insurance. The covenant to insure contained reference to the terms and conditions of IBC 4042. IBC 4042 contains language that defines the “Project Site” as the “property in the course of construction”.</span></span></div>
<div style="margin: 0px;">
<span style="font-family: Calibri,sans-serif; font-size: x-small;"><span style="font-size: 11pt;"></span></span> </div>
<div style="margin: 0px;">
<span style="font-family: Calibri,sans-serif; font-size: x-small;"><span style="font-size: 11pt;">Black Creek argued that under the principle of tort immunity, when one party to a contract covenants to obtain insurance for another party, this signifies an assumption of the risk and the party obtaining the insurance cannot sue the other party for the losses which are insured. Compass accepted that under the principle of tort immunity, it could not crossclaim for damages to the kitchen, but argued that it could maintain a crossclaim for damages to the rest of the hospital. </span></span></div>
<div style="margin: 0px;">
<span style="font-family: Calibri,sans-serif; font-size: x-small;"><span style="font-size: 11pt;"></span></span> </div>
<div style="margin: 0px;">
<span style="font-family: Calibri,sans-serif; font-size: x-small;"><span style="font-size: 11pt;">The Court found that Compass’ covenant to insure did not extend to the entire Hospital and only covered the Project Site (namely, the kitchen). Thus, the Court held that Compass could crossclaim against Black Creek for damages to the Hospital outside of the kitchen, and was not barred by the covenant to insure. If Compass’ insurance were intended to cover the entire hospital, the premiums and coverage limits would be much higher and closely resemble that of the Hospital’s; Justice Firestone held that it stood to reason that the covenant to insure only covered the Project Site and not damage done to the entire hospital.</span></span></div>
<div style="margin: 0px;">
<span style="font-family: Calibri,sans-serif; font-size: x-small;"><span style="font-size: 11pt;"></span></span> </div>
Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-18548643377703078292015-11-11T12:00:00.000-05:002015-11-11T12:00:00.672-05:00Loss Transfer and the Fault Determination RulesThe Court of Appeal recently considered the interplay of the Fault Determination Rules in a loss transfer context.<br />
<br />
In <em><a href="http://canlii.ca/t/glnkh" target="_blank">State Farm Mutual Automobile Insurance Co. v. Old Republic Insurance Co. of Canada</a></em>, 2015 ONCA 699 (C.A.), there was a multi-vehicle collision in which a Pepsi truck rear-ended a Dodge, which in turn rear-ended a Nissan. Old Republic insured the Pepsi truck and State Farm insured the Nissan. The driver of the Nissan collected accident benefits from State Farm, which in turn sought to be indemnified by Old Republic under the loss transfer provisions of the <em>Insurance Act</em>. The issue on appeal was whether the Pepsi truck was only responsible for the initial collision with the Dodge or whether it was responsible for the entire chain reaction.<br />
<br />
The Court of Appeal held that the Pepsi truck (and its insurer, Old Republic) was 100% responsible only for the collision between it and the Dodge, not the entire chain reaction. As a result, Old Republic was not required to indemnify State Farm for accident benefits paid to its insured.<br />
<br />
The Court's interpretation helps to clarify an area in which there was previously conflicting lines of case law.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-470200973937096152015-11-04T11:00:00.000-05:002015-11-04T11:00:07.093-05:00Supreme Court Dismisses Westerhof AppealWe previously blogged on <em><a href="http://ontarioinsurancelaw.blogspot.ca/2015/03/westerhof-v-gee-expert-testimony.html" target="_blank">Westerhof v. Gee</a></em>, where the Court of Appeal held that non-party experts such as treating health practitioners may give opinion evidence formed in the course of treatment or based on observations formed outside of the litigation (such as accident benefits assessments).<br />
<br />
The case was appealed to the Supreme Court of Canada. On October 29, 2015, the Supreme Court <a href="http://www.scc-csc.gc.ca/case-dossier/info/dock-regi-eng.aspx?cas=36445" target="_blank">dismissed the application</a> for leave to appeal. As a result, non-party experts will continue to be permitted to give opinion evidence without complying with r. 53.03, subject to the court's gatekeeper function.<br />
<br />
The companion appeal in <em><a href="http://www.scc-csc.gc.ca/case-dossier/info/dock-regi-eng.aspx?cas=36451" target="_blank">Baker v. McCallum</a></em> was also dismissed.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-49378037352077961292015-10-28T11:00:00.000-04:002015-10-28T11:00:05.581-04:00Litigation Insurance Does Not Prevent an Order for Security for CostsThe fact that a plaintiff obtains litigation insurance does not prevent a court from making an order for security for costs.<br />
<br />
In <em><a href="http://canlii.ca/t/glgmf" target="_blank">Shah v. Loblaw Companies Ltd</a></em>., 2015 ONSC 5987 (S.C.J.), the plaintiff claimed he slipped and fell on a mat at a grocery store in 2012. At the time of the incident he was a permanent resident of Canada, but his permanent resident card expired in 2013. He returned to India and did not returned to Canada. The defendants brought a motion for security for costs. In response, the plaintiff secured a Legal Protection Certificate and Indemnity Agreement. He opposed the motion for security and argued that the insurance plan was sufficient security for the defendants.<br />
<br />
The Court rejected the plaintiff's argument. The policy contained a number of exclusions where the insurance proceeds would not be paid, such as where the plaintiff does not accept his counsel's recommendation to accept an offer to settle, decides to represent himself, fails to attend a defence medical examination, provides materially misleading information and so on. The defendants had no control over the circumstances and if the policy were cancelled, the defendants would have no security in the event of an adverse costs award against the plaintiff. <br />
<br />
Justice Lemon comments that other judges have considered the existence of insurance as a factor in determining whether security for costs should be awarded, but that the circumstances of the case and terms of the policy should be considered. It would seem important to obtain production of such a policy in the event that the plaintiff raises such an issue in response to a motion for security for costs.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-43476022066241412002015-10-21T11:00:00.000-04:002015-10-29T14:48:06.412-04:00Plaintiffs Who Settle for Less than Tortfeasor's Limits May Not Pursue Underinsured ClaimsA claim against an insurer pursuant to the underinsured provisions of the policy has been rejected since the plaintiffs settled against the tortfeasor for less than his limits.<br />
<br />
In <em><a href="http://canlii.ca/t/gj689" target="_blank">Kovacevic v. ING Insurance</a></em>, 2015 ONSC 3415 (S.C.J.), the plaintiffs were injured in 2004 in a motor vehicle accident in Florida. At the time, the plaintiffs were insured by ING; the policy had a $2 million limit and included the OPCF 44R - Family Protection Endorsement. The Florida defendant had a policy of insurance with a $1 million limit. The insurer, Lincoln General, elected to go into a "voluntary solvent run-off" in 2009 which resulted it in ceasing to write new policies but it continued to pay its existing obligations and liabilities. There was no evidence that Lincoln had become insolvent at the date of the settlement or thereafter.<br />
<br />
In 2010 the plaintiffs settled their Florida action for $300,000 without ING's knowledge or consent and then sought to recover under their own policy's underinsured driver provisions. ING brought a motion for summary judgment. The plaintiffs argued that settling at less than the policy limits did not disentitle them to recovery under the OPCF 44R. They also argued that the case was unique as the possibility of Lincoln becoming insolvent meant the limits of the policy were unavailable and a settlement for less than the limits was provident.<br />
<br />
Justice MacKenzie granted summary judgment and dismissed the claim. The plaintiffs were not entitled to settle the Florida action for less than the limits then pursue an underinsured claim. The claim that Lincoln was not solvent or that the policy limits were not available was not accepted.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-75413271661581340622015-10-14T11:00:00.000-04:002015-10-14T11:00:00.452-04:00Strong Position at Mediation Does Not Result in Increased Costs After TrialSections 258.6 and 258.6 of the <em>Insurance Act</em> impose an obligation on insurers to settle claims as expeditiously as possible and to participate in mediation. Failure to do so shall be taken into consideration when a court is awarding costs.<br />
<br />
In <em><a href="http://canlii.ca/t/gj16c" target="_blank">Ross v. Bacchus</a></em>, 2015 ONCA 347 (C.A.), the jury awarded the plaintiff $248,000. The trial judge awarded the plaintiff $217,000 plus HST in costs, including an award of $60,000 on the basis that the insurer failed to comply with ss. 258.5 and 258.6. <br />
<br />
The action was commenced in 2010 and the defendant offered to settle the claim for $40,000 in 2011, although the offer was revoked in 2012. Three weeks before the trial was scheduled to commence, the plaintiff offered to settle the action for $94,065 plus interest and costs, and requested mediation for the first time. Defence counsel responded the next day with an offer of $30,001 plus interest and costs, and agreed to attend mediation, but advised that his clients were "not interested in settling this case". The mediation took place four days before trial. The trial judge described the insurer's participation in mediation as a "sham" based on counsel's statement.<br />
<br />
The Court of Appeal allowed the costs appeal and held that the $60,000 award was not appropriate. Justice Doherty held that a clear statement of the insurer's intent does not mean it has failed to settle expeditiously or participate in a mediation:<br />
<br />
<blockquote class="tr_bq">
[<a class="paragAnchor" href="https://www.blogger.com/null" name="par46">46</a>]<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span>The costs sanctions in <a class="reflex2-link" concatenated-id="226-current-1" href="http://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html#sec258.5_smooth" s="258.5">ss. 258.5</a> and <a class="reflex2-link" concatenated-id="226-current-1" href="http://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html#sec258.6_smooth" s="258.6">258.6</a> can only serve their intended purposes if the facts justify the imposition of those sanctions. An insurer’s statement on the eve of trial that it is not prepared to settle a claim cannot be equated with an insurer’s failure to “attempt to settle the claim as expeditiously as possible.” Nor can an insurer who actually participates in a mediation be declared to have failed to participate simply because the insurer indicated prior to the mediation that it was not prepared to settle the claim. A clear statement of the insurer’s position going into the mediation, even a strong statement, does not preclude meaningful participation in a mediation.</blockquote>
Although ss. 258.5 and 258.6 make mediation mandatory, it is important to remember that the insurer is still entitled to take strong positions without being subjected to an additional costs penalty.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-47471594522276210852015-10-07T11:00:00.000-04:002015-10-07T11:00:00.854-04:00Pre-Judgment Interest in Auto ClaimsWe previously blogged on <em><a href="http://ontarioinsurancelaw.blogspot.ca/2015/04/the-calculation-of-pre-judgment.html" target="_blank">Cirillo v. Rizzo</a></em>, where the Court held that s. 258.3(8.1) of the <em>Insurance Act</em> should be applied retroactively (the section provides that pre-judgment interest should be calculated in accordance with s. 127 of the <em>Courts of Justice Act</em>). <br />
<br />
Perhaps unsurprisingly, another judge has come to the opposite conclusion. In <a href="http://canlii.ca/t/gkfmv" target="_blank">El-Khodr v. Lackie</a>, 2015 ONSC 4766 (S.C.J), Justice Toscano Roccomo held that s. 258.3(8.1) is substantive law, therefore it cannot be applied retroactively.<br />
<br />
Until there is appellate authority on this issue, it may be that the calculation of PJI in motor vehicle actions is a matter for negotiation in settlement discussions.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-61435252172296380182015-09-30T11:00:00.000-04:002015-09-30T11:00:00.314-04:00Contracting out of the Insurance ActSection 263 of the <em>Insurance Act</em> provides that in cases of property damages involving two insured automobiles, the insured is entitled to recover from his or her own insurer.<br />
<br />
A recent appeal decision held that although s. 263 precludes tort claims, it permits claims based in contract.<br />
<br />
In <em><a href="http://canlii.ca/t/gjndq" target="_blank">Hafeez v. Sunaric</a></em>, 2015 ONSC 4065 (S.C.J.), after a collision in a parking lot, the defendant agreed to pay the plaintiff $15,000 "minus insurance payment". The vehicle was appraised at $13,500. The plaintiff was paid $6,500 by his insurer and sought to recover the rest from the defendant pursuant to their contract. The Small Claims Court judge held the agreement was unenforceable due to s. 263. The plaintiff appealed.<br />
<br />
Justice Perrell allowed the appeal. The property loss compensation scheme introduced by s. 263 precludes tort claims but does not preclude claims based in contract.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-41413087357663139922015-09-23T11:00:00.000-04:002015-09-23T11:00:05.262-04:00Insurer Must Pay for Repairs Associated With Building Code Upgrades<span style="font-family: inherit;">The importance of the wording of exclusion clauses can be seen in <em><a href="http://canlii.ca/t/gkr4j" target="_blank">Choukair v. Allstate</a></em>, 2015 ONSC 4989 (S.C.J.).</span><br />
<span style="font-family: inherit;"></span><br />
<div class="MsoNormal" style="-ms-text-justify: inter-ideograph; margin: 0cm 0cm 0pt; text-align: justify;">
<span lang="EN-US" style="font-family: "Arial",sans-serif;"><span style="font-family: inherit;">The Applicant, Choukair, had
a Homeowner’s Policy with the respondent, Allstate. On January 20, 2014 there
was a total loss fire at Choukair’s residence. As a result, the house had to be
rebuilt. Choukair stated that his replacement cost was $450,700.00, plus taxes.
Allstate paid Choukair $369,000.00 but refused to pay the balance. <o:p></o:p></span></span></div>
<span style="font-family: inherit;">
</span><br />
<div class="MsoNormal" style="-ms-text-justify: inter-ideograph; margin: 0cm 0cm 0pt; text-align: justify;">
<span lang="EN-US" style="font-family: "Arial",sans-serif;"><span style="font-family: inherit;">The difference between what Choukair
claimed and what Allstate paid related to the increased cost of the rebuild
associated with upgrades required as a result of the <i style="mso-bidi-font-style: normal;">Building Code</i>, which Allstate stated were excluded by the Insurance
Policy. <o:p></o:p></span></span></div>
<span style="font-family: inherit;">
</span><br />
<div class="MsoNormal" style="-ms-text-justify: inter-ideograph; margin: 0cm 0cm 0pt; text-align: justify;">
<span lang="EN-US" style="font-family: "Arial",sans-serif;"><span style="font-family: inherit;">There was an exclusion clause
in the Policy which stated the following:<o:p></o:p></span></span></div>
<span style="font-family: inherit;">
</span><br />
<div class="MsoNormal" style="-ms-text-justify: inter-ideograph; margin: 0cm 0cm 0pt 36pt; text-align: justify;">
<i style="mso-bidi-font-style: normal;"><span lang="EN-US" style="font-family: "Arial",sans-serif;"><span style="font-family: inherit;">We do not insure: (5) losses or
increased costs of repair or cost of improving or upgrading dwellings or
structures due to the <b style="mso-bidi-font-weight: normal;"><u>operation of
any by-law</u></b> regulating the zoning, demolition, repair or construction of
buildings and their related services; <o:p></o:p></span></span></i></div>
<span style="font-family: inherit;">
</span><br />
<div class="MsoNormal" style="-ms-text-justify: inter-ideograph; margin: 0cm 0cm 0pt; text-align: justify;">
<span lang="EN-US" style="font-family: "Arial",sans-serif;"><span style="font-family: inherit;">Justice Quigley held that the loss did not result from the operation of
a by-law. The increased costs were related to the application
of the <i style="mso-bidi-font-style: normal;">Building Code</i>, which is
categorized as a law and not a by-law. <o:p></o:p></span></span></div>
<span style="font-family: inherit;">
</span><span lang="EN-US" style="font-family: "Arial",sans-serif;"><span style="font-family: inherit;">Allstate therefore
had to pay the balance related to increased costs associated with the <i style="mso-bidi-font-style: normal;">Building Code</i> upgrades. </span></span><br />
<span lang="EN-US" style="font-family: "Arial",sans-serif;"><span style="font-family: inherit;"></span></span><br />
<span lang="EN-US" style="font-family: "Arial",sans-serif;"><span style="font-family: inherit;">Insurers may want to consider the wording of their exclusion clauses as a result.</span></span><br />
Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-50331155837142316792015-09-11T11:00:00.000-04:002015-09-11T11:00:06.663-04:00The New Deductibles Under the Insurance ActThe <em>Insurance Act</em> and its regulations have been amended to increase the amount of the deductibles. As of August 1, 2015, the deductible for non-pecuniary damages is $36,540 (up from $30,000) and for <em>Family Law Act</em> damages it is $18,270 (up from $15,000). In addition the $100,000 threshold above which the deductible applies has been raised to $121,799 and the $50,000 threshold for <em>Family Law Act </em>damages to $60,899. The deductibles will be indexed for inflation on January 1st of each year beginning in 2016.<br />
<br />
In addition, s. 267.5(9) has been amended to provide that costs are to be determined "with regard" to the effect of the deductible, i.e. costs are now net of the deductible.<br />
<br />
<br />
Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-41119027991253575032015-08-12T11:00:00.000-04:002015-08-12T11:00:05.898-04:00Statutory Third Party Must Answer Questions About Denial of CoverageA recent decision requires a statutory third party to answer questions about why it denied coverage to its insured. In <em><a href="http://canlii.ca/t/gkdpn" target="_blank">Lica v. Dhaliwal</a></em>, 2015 ONSC 3888 (S.C.J.), State Farm denied coverage and added itself as a statutory third party. The plaintiff asked questions by written interrogatory requesting details as to why the insurer denied coverage. State Farm refused to answer and the plaintiff brought a motion, arguing he needed the information in order for him to claim underinsurance coverage from his own insurer under the OPCF 44R and to permit his insurer to assess its potential liability. State Farm argued that the main action was not the proper forum to decide coverage issues so the questions were improper.<br />
<br />
Justice Price ordered State Farm to provide details of the denial of coverage. A court requires the information to determine whether State Farm's allegation the insured breached the conditions of his policy are borne out by the evidence. If the denial was justified, the plaintiff would have access to the coverage provided by his OPCF 44R endorsement. Justice Price held that where coverage has been denied, the court should determine whether an insurer must disclose the information and documents relating to its decision on a case by case basis, having regard to whether the documents are relevant, whether their disclosure would cause prejudice, whether they are protected by litigation privilege and whether that privilege, if it exists, has been waived.<br />
<br />
Statutory Third Parties will have to carefully consider what must be disclosed as a result of the <em>Lica</em> decision.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-35233763653974362752015-07-22T11:00:00.000-04:002015-07-22T11:00:01.144-04:00No Duty to Defend Parents of Alleged BullyThe Court of Appeal has held that an insurer does not have a duty to defend its insureds with respect to claims that they failed to prevent bullying.<br />
<br />
In <em><a href="http://canlii.ca/t/gjhcl" target="_blank">Unifund v. D.E</a></em>., 2015 ONCA 423 (C.A.), the insurer refused to defend parents of an alleged bully. In the underlying action, the plaintiff alleged that the parents' daughter had bullied her at school. The allegations against the parents were that they knew or ought to have known about the bullying, and failed to investigate it, take steps to prevent it or take disciplinary action. The Unifund policy contained an exclusion which provided as follows:<br />
<br />
<blockquote class="tr_bq">
<div class="CQuote">
We do not insure claims arising from:</div>
<div class="CQuote">
6. bodily injury or property damage caused by an intentional or criminal act or failure to act by:</div>
<div class="CQuote">
(a) any person insured by this policy; or</div>
<div class="CQuote">
(b) any other person at the direction of any person insured by this policy;</div>
<div class="CQuote">
7.(a) sexual, physical, psychological or emotional abuse, molestation or harassment, including corporal punishment by, at the direction of, or with the knowledge of any person insured by this policy; or</div>
<div class="CQuote">
(b) failure of any person insured by this policy to take steps to prevent sexual, physical, psychological or emotional abuse, molestation or harassment or corporal punishment.</div>
</blockquote>
The application judge held that the exclusion was limited to an intentional failure to prevent physical abuse rather than negligence. The Court of Appeal allowed the appeal. Justice MacPherson held that by using the word "failure" in the exclusion clause, it extended to negligence. Unifund had no duty to defend or indemnify its insureds in the underlying action.<br />
<br />
Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-11116575233917886422015-07-15T11:00:00.000-04:002015-07-15T11:00:08.066-04:00Courts Have Inherent Jurisdiction to Order Assessments by Non-Health PractitionersWe previously posted on the Divisional Court's decision in <em>Ziebenhaus v.Bahlieda</em> (click <a href="http://ontarioinsurancelaw.blogspot.ca/2014/04/courts-have-inherent-jurisdiction-to.html" target="_blank">here</a> for our original post). In that case, the Divisional Court held that courts have inherent jurisdiction to order a party to undergo an assessment by someone who is not a "health practitioner". In <em>Ziebenhaus</em>, the particular assessor was a vocational assessor.<br />
<br />
The Court of Appeal has now confirmed the Divisional Court's decision at <a href="http://canlii.ca/t/gjnc3" target="_blank">2015 ONCA 471 (C.A.)</a>.<br />
It held:<br />
<br />
<blockquote class="tr_bq">
[<a class="paragAnchor" href="https://www.blogger.com/null" name="par13">13</a>]<span style="font-size-adjust: none; font-stretch: normal; font: 7pt/normal "Times New Roman";"> </span>The language of <a class="reflex2-link" concatenated-id="89-current-1" href="http://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec105_smooth" s="105"><span style="color: blue;">s. 105</span></a> and <a class="reflex2-link" concatenated-id="89-current-1" href="http://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec33_smooth" s="33"><span style="color: blue;">Rule 33</span></a> does not constitute such clear and precise language. The language of these provisions is permissive, and they do not state that a court cannot order an examination by someone who is not a “health practitioner”. Moreover, the conclusion that a superior court judge has the inherent jurisdiction to order such an examination does not conflict with the relief available under <a class="reflex2-link" concatenated-id="89-current-1" href="http://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec105_smooth" s="105"><span style="color: blue;">s. 105</span></a>, nor should it be seen as extending the reach of that section. Inherent jurisdiction should be exercised only sparingly and in clear cases, when the moving party demonstrates that it is necessary to ensure justice and fairness.</blockquote>
<br />
<em>Ziebenhaus </em>may make it easier to obtain orders compelling plaintiffs to attend independent medical examinations with non-medical practitioners; however, it will still be important to have good supporting materials to show the assessments are necessary to ensure justice and fairness.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-39729034071692196582015-07-08T11:00:00.000-04:002015-07-08T11:00:01.972-04:00Admissibility of Expert EvidenceThe Supreme Court of Canada recently commented on the standards for admissibility of expert evidence. Although the case originated out of Nova Scotia, it is equally applicable to Ontario and should be taken into account when retaining experts. <br />
<br />
In <em><a href="http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15328/index.do" target="_blank">White Burgess Langille Inman v. Abbott and Haliburton Co</a></em>., 2015 S.C.C. 23, shareholders started an action against the company's former auditors after a different accounting firm (Grant Thornton) identified problems with the former auditors' work. In response to the defendant's summary judgment motion, the plaintiffs hired a forensic accountant from Grant Thornton to prepare an opinion. The motions judge struck out the forensic accountant's affidavit on the basis that she was not an impartial witness; the Court of Appeal allowed the appeal.<br />
<br />
The Supreme Court of Canada dismissed the appeal.<br />
<br />
The inquiry for determining the admissibility of expert evidence is divided into two steps. First, the proponent of the evidence must establish the threshold requirements for admissibility (found in <em>R. v. Mohan</em>): relevance, necessity, absence of an exclusionary rule and a properly qualified expert. Second, the judge must exercise a gatekeeper function and balance the potential risks and benefits of admitting the evidence to determine whether the potential benefits outweigh the risks. Concerns about an expert's independence or impartiality should be considered as part of the overall weighing of the costs and benefits of admitting the evidence.<br />
<br />
Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. Underlying the duty are three concepts: impartiality, independence and absence of bias. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in that it does not unfairly favour one party's position over another.<br />
<br />
A proposed expert's independence and impartiality goes to admissibility and not simply to weight, and there is a threshold admissibility requirement in relation to this duty. Once the threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis the judge conducts to carry out the gatekeeping role.<br />
<br />
In the circumstances, the evidence should not have been excluded as there was no basis to conclude the expert was not able and willing to provide the court with fair, objective and non-partisan evidence.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com1tag:blogger.com,1999:blog-1443335504132887257.post-25108366174397732842015-06-24T11:00:00.000-04:002015-06-24T11:00:08.801-04:00Jury Can Hear Cases Involving Waivers & VolentiThe Court of Appeal has confirmed that juries can hear cases involving waivers.<br />
<br />
In <em>Kempf v. Nguyen</em>, <a href="http://canlii.ca/t/ggbv0" target="_blank">2015 ONCA 114 </a>(C.A.), the plaintiff suffered injuries when the defendant's back wheel clipped his front wheel during a charity bike ride. The defendant pled volenti and that the plaintiff was contributory negligence, and relied on a waiver signed by the plaintiff.<br />
<br />
The trial judge granted the plaintiff's motion to strike the jury notice on the basis that the jury would be confused by the contents of the waiver or misuse it in their deliberations. She was concerned that the plea of volenti involved a claim for declaratory relief, which is precluded from being determined by a jury. She also rejected the defendant's suggestion to take a "wait and see" approach. She struck the jury and found in favour of the plaintiff.<br />
<br />
The Court of Appeal allowed the defendant's appeal, holding that it was a reversible error to discharge the jury on the basis that it would be too difficult to explain the law. Volenti is not a claim for declaratory relief; it is a full defence to a finding of negligence. Justice Epstein held that "To determine liability, the jury would have to sift through the often conflicting evidence, and make findings of fact and apply the law as explained to them by the trial judge. This is what juries do every day" (para. 59).<br />
<br />
Kempf is helpful in confirming that the right to a jury is an important one, and that juries are capable of hearing a wide variety of cases, including those involving contracts or waivers.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-45147100315654816122015-06-17T11:00:00.000-04:002015-06-17T11:00:08.992-04:00Intrusion Upon SeclusionOne of the more recent torts that has been developing is the tort of intrusion upon seclusion. The Court of Appeal recently commented on this developing tort. <br />
<br />
In <em>Hopkins v. Kay</em>, <a href="http://canlii.ca/t/ggbt6" target="_blank">2015 ONCA 112</a> (C.A.), the plaintiffs brought a proposed class action alleging that their records as patients of the Peterborough Regional Health Centre were improperly accessed.<br />
<br />
The hospital brought a r. 21 motion to dismiss the claim on the ground that the Personal Health Information Protection Act ("PHIPA") is an exhaustive code that ousts the jurisdiction of the Superior Court to entertain any common law claim for invasion of privacy rights in relation to patient records. The motions judge dismissed the motion and the hospital appealed.<br />
<br />
The Court of Appeal held that PHIPA is not an exhaustive code, and the plaintiffs were not precluded from asserting a common law claim for intrusion upon seclusion. There is no express intention in PHIPA to create an exhaustive code and it contemplates other proceedings. The commissioner has no power to award damages so an individual must commence an action in the Superior Court to seek damages. PHIPA is tailored to deal with systemic issues rather than individual complaints. <br />
<br />
The Court of Appeal dismissed the appeal.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-21139487253298340492015-06-10T11:00:00.000-04:002015-06-10T11:00:04.323-04:00The Importance of Credibility in Threshold MotionsWhen a defendant brings a threshold motion at the end of trial, the plaintiff bears the onus of proving his injuries meet substantially interfere with work or activities of daily living. As a result, the plaintiff's credibility can be highly relevant. One such example is <em><a href="http://canlii.ca/t/gg9kb" target="_blank">Berfi v. Muthusamy</a></em>, 2015 ONSC 981 (S.C.J.). <br />
<br />
The plaintiff brought an action as a result of a pedestrian-motor vehicle accident that occurred on October 28, 2010. The jury found the defendant 80% at fault and the plaintiff 20%, and awarded $43,000 in general damages, $6,000 for past loss of income and nil for future loss of income. The defendant brought a threshold motion. The plaintiff alleged he sustained injuries to his left shoulder, arm and hand. He continued to work full time, apart from a 17-day period following surgery. He testified he did so in order to reach age 55 when he could retire and receive a union pension. His anticipated retirement date was March 1, 2015.<br />
<br />
After the plaintiff testified, counsel received the union file which included a Notice of Election form which indicated he planned on returning to work in April 2015. A union representative testified the plaintiff contacted her the day before to withdraw the Notice of Election.<br />
<br />
Stinson J. held the plaintiff had not met threshold. There were a number of conflicts in the plaintiff's testimony, and he had continued to work in the same job for four years after the accident; Stinson J. described this factor as a "strong indication" the injuries had not substantially interfered with the plaintiff's ability to continue his regular employment. In addition, the award of zero for future income loss was consistent with the jury finding the plaintiff was capable of working. Finally, Stinson J. held that the limitations the plaintiff had with respect to household chores, and social and sporting activities were related to problems that pre-dated the accident.<br />
<br />
The defendant's motion was granted.<br />
<br />
Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-14281850285739351062015-06-03T11:00:00.000-04:002015-06-03T11:00:06.505-04:00Principles Relating to the ThresholdA helpful discussion of the principles relating to the Insurance Act threshold can be found in <em><a href="http://canlii.ca/t/gfvd7" target="_blank">Malfara v. Vukojevic</a></em>, 2015 ONSC 78 (S.C.J.). The arose out of a 2006 motor vehicle accident. A jury awarded $7,700 in general damages, $1,326 for past income loss and nil for future loss of income. Justice Firestone heard a threshold motion while the jury was deliberating. He held that the plaintiff had not met threshold.<br />
<br />
Justice Firestone set out a number of principles with respect to threshold motions, including:<br />
<br />
<ul>
<li>the trial judge is not bound by the jury's verdict, but is a factor he or she can consider in determining the threshold motion;</li>
<li>"permanent" does not necessarily mean forever until death; a permanent impairment is a weakened condition lasting into the indefinite future without end or limit;</li>
<li>"serious" relates to the seriousness of the impairment to the person and not to the injury itself;</li>
<li>the degree of the impairment must go beyond tolerable to be serious;</li>
<li>it is the effect of the injury and not the type of injury that is the focus of the threshold inquiry.</li>
</ul>
The evidence was that the plaintiff was 24 years old at the time of the collision and was completing a plumbing apprenticeship. He alleged he sustained chronic neck and back pain as a result of the accident. He was off work for 2-3 weeks then returned to his apprenticeship, ultimately becoming a fully licenced plumber. He currently performs all of his job duties but with pain. He no longer participates in sporting activities, partly because of his injuries and partly because he is busy. He continues to cut grass, shovel snow and help in the kitchen, although with pain.<br />
<br />
Justice Firestone granted the defendant's motion, stating "I accept that the legislature intended that injured persons in motor vehicle collisions may experience some negative or detrimental impact on their lives without the ability to recover non-pecuniary damages". The evidence did not support that the injuries and impairments had a significant effect on the plaintiff's enjoyment of life, or that they substantially interfered with his capacity for work or pleasurable activities. The impairments were not serious.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-40226039915675106892015-04-29T11:00:00.000-04:002015-04-29T11:00:01.346-04:00Plaintiffs May Provide Corroborating Evidence of Threshold ImpairmentThe <em>Insurance Act</em> provides that in order to prove they meet threshold, plaintiffs must lead evidence from a qualified physician as well as “adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.” The Court of Appeal recently held that plaintiffs may provide such corroboration themselves. <a href="http://www.canlii.org/en/on/onca/doc/2015/2015onca31/2015onca31.html?autocompleteStr=Gyorffy%20&autocompletePos=2#_ftn2" name="_ftnref2" title=""></a><br />
<br />
In <em><a href="http://canlii.ca/t/gg1lt" target="_blank">Gyorffy v. Drury</a></em>, 2015 ONCA 31 (C.A.), the plaintiff was in a car accident in November 2003. The defence brought a threshold motion while the jury was deliberating. The plaintiff and three physicians testified. The trial judge ruled the plaintiff's injuries has satisfied the impairment threshold, but held that the plaintiff could not provide the corroborating evidence that ss. 4.2 and 4.3 of Ontario Regulation 461/96 required. Accordingly, the action was dismissed.<br />
<br />
The Divisional Court allowed the appeal, and the Court of Appeal dismissed a further appeal. It confirmed that a plaintiff can provide corroborating evidence in order to prove he or she meets threshold. The evidence that has to be corroborated is the physician's, not the plaintiff's.<br />
<br />
Given the conclusion in <em>Gyorffy</em>, it is perhaps more important to focus on the quality of the evidence provided by the plaintiff rather than on the need for corroboration.<br />
<div class="MsoNormal" style="margin: 0cm 0cm 0pt; text-align: justify;">
<span style="font-family: "Arial",sans-serif;"></span> </div>
<div class="MsoNormal" style="margin: 0cm 0cm 0pt; text-align: justify;">
<span style="font-family: "Arial",sans-serif;"></span> </div>
<div class="MsoNormal" style="margin: 0cm 0cm 0pt; text-align: justify;">
<span style="font-family: "Arial",sans-serif;"><o:p></o:p></span> </div>
<br />
Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-12450001032381012532015-04-22T11:00:00.000-04:002015-04-22T11:00:07.691-04:00The Calculation of Pre-judgment Interest in Motor Vehicle ClaimsOn January 1, 2015, s. 258.3(8.1) of the <em>Insurance Act</em> was amended to change the rate at which pre-judgment interest ("PJI") in motor vehicle claims. A recent Superior Court of Justice decision held that the change is retrospective, meaning it will apply to all motor vehicle claims, regardless of the date of loss.<br />
<br />
The effect of the amendment is that the provision in r. 53.10 which sets PJI for non-pecuniary loss at 5% no longer applies. Accordingly, PJI is to be calculated at the rates set out for each quarter in s. 127(1) of the <em>Courts of Justice Act</em>.<br />
<br />
In <em><a href="http://canlii.ca/t/gh722" target="_blank">Cirillo v. Rizzo</a></em>, 2015 ONSC 2440 (S.C.J.), the plaintiff was in a motor vehicle accident on October 1, 2005. In January 2015 the plaintiff accepted the defendant's offer of $50,000. The question was how PJI should be calculated. The defendant argued the amendment should have retrospective application because it is procedural in nature; the plaintiff argued it should not, as it is substantive in nature.<br />
<br />
Justice MacKenzie agreed with the defendant. Although entitlement to interest is a substantive right, the means by which the entitlement can be quantified are procedural. As a result, the rates set out in s. 127 applied, which had the effect of reducing PJI from 5% to 4.5%.<br />
<br />
Given the low interest rates in recent years, the changes to the way PJI is calculated could have a substantial impact on the amount of interest defendants must pay.Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0tag:blogger.com,1999:blog-1443335504132887257.post-89385803150407310022015-04-08T11:00:00.000-04:002015-04-08T11:00:00.736-04:00The Standard of Care for Grocery StoresThe Court of Appeal has once again confirmed that the standard of care for occupiers is reasonableness, not perfection.<br />
<br />
In<em> </em><a href="http://canlii.ca/t/ggqmf" target="_blank"><em>Saisho v. Loblaw Companies Ltd</em></a>., 2015 ONCA 172 (C.A.) the elderly plaintiff was hit in 2007 by a customer pushing an overloaded shopping cart. One customer (Beardy) paid for his purchases and loaded his cart. His friend, Sakakeep, paid for his purchases independently as he was paying, Beardy loaded Sakakeep's purchases into the same cart. As they moved toward the exit, Beardy bumped into the plaintiff. The plaintiff suffered severe injuries and was in hospitalized from the date of the incident to his death in 2010. The claim was dismissed at trial and the plaintiff appealed, alleging that the store should have had a specific policy on overloaded carts and required cashiers to specifically look to ensure customers did not overload the carts.<br />
<br />
The Court of Appealed disagreed. The store had a general policy to be alert for potentially dangerous activities. Staff were aware that overloaded carts had the potential to cause injury or harm, and if they saw one, they would intervene. The Court held that to require a standard specifically addressing the problem of overloaded shopping carts would present a standard of perfection, which is not what the law requires.<br />
<br />
The trial judge concluded that it was not reasonable to expect a cashier to look behind her to ensure that two distinct customers were not loading their purchases into one cart. He concluded it was reasonable for the cashier not to have intervened. The Court of Appeal upheld the decision, holding that the standard of care is reasonableness in the circumstances, and the store met the standard.<br />
Insurance Law Bloghttp://www.blogger.com/profile/04184056721470177386noreply@blogger.com0