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Wednesday, June 14, 2017 @ 9:28 AM

AUTOMOBILE INSURANCE - Statutory conditions - Uninsured or underinsured motorist coverage

Appeal by Royal & Sun Alliance Insurance Company of Canada (Royal) from the dismissal of its application for a declaration that Wilson was fully insured by Intact Insurance Company (Intact), such that Intact had a duty to defend her against a claim by Rita and Cathy MacLeod arising from a motor vehicle accident. Wilson and her husband attended their insurer, Intact, after Wilson’s license was suspended for unpaid fines. Wilson signed an Excluded Driver Endorsement (EDE) so that her husband could maintain Intact auto insurance coverage on the car. The trial judge found that when Wilson completed the EDE, she understood that even if her licence were to be reinstated, Intact would not insure her and the EDE would continue to apply. However, once Wilson’s licence was reinstated, she decided to drive the vehicle and was involved in an accident in which the MacLeods were injured. The Macleods’ uninsured motor vehicle carrier, Royal, in the context of the personal injury action against Wilson, brought a motion to obtain a declaration that Wilson was fully insured by Intact. Intact, relying on the EDE, took the position that there was no coverage and Wilson was uninsured. The application judge determined that the EDE was in full force and effect at the time of the accident, such that Intact had no duty to defend or indemnify Wilson in respect of the accident. Royal appealed. The main question in the appeal was whether an endorsement of an automobile insurance policy that excluded coverage for a named driver was valid even though its form was not that pre-approved by the Superintendent of Financial Services, as required by s. 227(1) of the Insurance Act (Act). ... [read more]

Monday, June 12, 2017 @ 10:36 AM

SELF-GOVERNING PROFESSIONS - Professional liability insurance - Professions - Health care - Psychiatrists, psychologists and therapists

Appeal by SS and MS from a decision in which the court held that the Canadian Medical Protective Association (CMPA) was not liable to indemnify its member, Dr. KAA, for a judgment debt in the appellants' favour. SS was a patient of Dr. KAA, a psychiatrist. The appellants commenced an action against Dr. KAA in 2000, claiming that he put SS on a debilitating course of medication, gave professional advice that undermined their marriage, and engaged in oral and sexual intercourse with SS. Subsequently, SS experienced depression and suffered injuries from a suicide attempt. The appellants obtained a default judgment against Dr. KAA, who had left the jurisdiction, preventing the appellants from enforcing their judgment. They consequently sought to have the CMPA held liable to indemnify its member and by extension, the appellants. The judge held that the CMPA was not an insurer, but rather a mutual defence association for physicians. She held that the essential components of an insurance contract were not present in the relationship between the CMPA and its members. She found that the assistance the CMPA provided to its members was discretionary, and that it would not as a rule provide assistance to a member who had committed a criminal act, such as sexual assault. She dismissed the appellants' claim because Dr. KAA never sought assistance from the CMPA in relation to the claim and because the judgment the appellants obtained against Dr. KAA was focused on the impact of the sexual abuse on SS. ... [read more]

Friday, June 09, 2017 @ 10:44 AM

Cox & Palmer partner picked to lead defence lawyers group

 Jade Spalding, a partner in Cox & Palmer's Fredericton office, has been selected as president of Canadian Defence Lawyers for 2017-18. ... [read more]

Friday, June 09, 2017 @ 9:05 AM

Don’t get the retirement age wrong in personal injury claims Golden eggs

The selection of a retirement age is generally a key assumption in the quantification of personal injury claims. When an employee participates in a defined benefit pension plan, it is often assumed that the most appropriate retirement age is when the employee is eligible for an unreduced pension. An unreduced pension is often described as a full pension, thereby suggesting that a rational employee will choose to retire when they have maximized their pension. However, an “unreduced pension” and a “full pension” are not one and the same. ... [read more]

Monday, June 05, 2017 @ 8:40 AM

Litigating pediatric brain injuries takes a multidisciplinary team

Litigating a traumatic brain injury presents diverse medico-legal challenges that require harmony between an individual’s health care team and their legal team. In cases involving children, these challenges become even more complex. ... [read more]

Friday, June 02, 2017 @ 9:09 AM

Appeal decision shines light on life insurance, Succession Law Reform Act

The recent decision of the Ontario Court of Appeal in Dagg v. Cameron Estate, 2017 ONCA 366 contains important lessons for family and estates lawyers, mediators and financial advisers.   ... [read more]

Tuesday, May 30, 2017 @ 8:43 AM

INSURERS - Duties - Duty to defend

Appeal by the insurers from a decision finding that they had a duty to defend their insured in an action for fraud, theft, misappropriation and wrongful conversion. The insured was a metal broker. In the action, the plaintiff, a nickel producer, alleged that the co-defendant stole nickel from the plaintiff and sold it to the insured. The insured, knowing that the product was stolen, fraudulently represented to a third party that it lawfully owned or possessed the stolen product, and subsequently resold the stolen product to the third party for less than fair market value. The application judge considered the reasonable expectations of the parties and found that when the insured bought or sold metal, it would be offered liability coverage under the policy for decisions that were negligent during the course of those operations. The application judge determined that the claim was for conduct in the ordinary course of the insured buying and selling metal, and concluded that a policy exclusion, which indicated that there was no coverage if damage was expected or intended, did not apply. ... [read more]

Friday, May 26, 2017 @ 8:54 AM

You’re not buying an insurance policy, you’re buying the right to sue

Insurance companies, the Law Society of Upper Canada (LSUC), and The Toronto Star have been making a lot of noise about personal injury lawyers. The perception is that personal injury lawyers are a predatory bunch, motivated only by selfish financial interests. Ambulance chasers. Bottom feeders. But the role of the personal injury lawyer is to fight with the insurance company, to oblige them to honour the policy. ... [read more]

Thursday, May 25, 2017 @ 10:03 AM

ICBC’s anti-fraud advertising: purely educational or jury interference? | Sandra Kovacs

Earlier this year British Columbia’s public auto insurer, the Insurance Corporation of British Columbia, released a new “anti-fraud” TV commercial featuring an adorable ginger-haired little boy wearing his dad’s hard hat, standing at the front of his elementary school classroom, delivering his presentation on Career Day: My dad’s a carpenter. He builds houses. But he’s not working right now, because he got hurt in a car crash. So now, we go mountain biking together almost every day! And he says he’s going to make a whole bunch of money, too. And now, he’s building a tree house in our backyard!” ... [read more]

Monday, May 15, 2017 @ 8:26 AM

Tort defendants responsible for accident benefit arbitration costs

Access to justice is being denied for injured Ontario motorists as a result of the mandated use of the Licence Appeal Tribunal (LAT) as the exclusive means to resolve all accident benefit disputes given that the LAT does not allow a claimant to recover any dispute costs. But, thankfully, the courts have found a back-door way to award arbitration costs to injured motorists as part of tort cost awards. ... [read more]