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Thursday, April 13, 2017 @ 10:25 AM

With parental waivers, due diligence is key

Parental waiver forms are intended to protect risky businesses from lawsuits when kids get injured. When accidents happen and tragedy strikes, however, the effectiveness of the waiver is often questioned. In Canada, there does not seem to be a consistent answer. Now a decision from the Court of Appeal of New Brunswick simultaneously suggests parental waivers are enforceable — and potentially not worth the paper they are written on. ... [read more]

Thursday, April 13, 2017 @ 8:12 AM

TRUSTS - Constructive Trusts - Unjust Enrichment

Appeal by Sweet from a decision finding that the respondent was entitled to the proceeds of a policy of insurance on the life of the respondent’s former husband. The respondent and her former husband were married for more than 20 years and the respondent was the named beneficiary of the Policy during their marriage. She was not designated as an irrevocable beneficiary. Following the separation, the husband established a relationship with the appellant. The husband was a man of limited means, living in the post-separation period on a disability pension, and suffering from the disabilities associated with his physical, mental and substance abuse issues. The appellant was also disabled. They lived together in the appellant’s apartment until the husband’s death 13 years later. Shortly after the husband and the appellant began living together, and contrary to an oral agreement he had with the respondent, who continued to pay the premiums, the husband revoked the designation of the respondent as beneficiary and designated the appellant as the irrevocable beneficiary under the Policy. The application judge found the respondent was entitled to recover the policy proceeds on the basis of unjust enrichment. Although equitable assignment was not before the Court on the application, the application judge held that the oral contract between the respondent and her husband took the form of an equitable assignment to the respondent of the husband’s equitable interest in the proceeds of the Policy. ... [read more]

Tuesday, April 11, 2017 @ 11:53 AM

Lenczner Slaght hires counsel, associate

Patrick Wright has joined Lenczner Slaght as counsel, while Jonathan Chen is the litigation firm’s newest associate. ... [read more]

Tuesday, April 11, 2017 @ 7:51 AM

INSURERS - Duties - Duty to defend

Appeal by Intact Insurance Company (Intact) from a declaration that it had a duty to defend a personal injury lawsuit brought by a claimant against the respondent Riocan Holdings (Riocan) arising out of a slip and fall allegedly caused by unsafe icy sidewalk conditions on Riocan’s property. Prior to the claim, Riocan had contracted with Think Green Alberta (TGA) to conduct snow removal and winter weather sidewalk maintenance on the property. The personal injury claimant named both Riocan and TGA as defendants. Intact was TGA’s insurer. Riocan was named as an additional insured under the Intact policy, as per the terms of the Riocan/TGA contract. The same contract contained a hold harmless agreement in Riocan’s favour. The judge found that the action was about a slip and fall on a surface for which responsibility had been delegated to TGA, such that Intact had a duty to defend Riocan. The judge interpreted the Riocan/TGA contract as providing that TGA was to ensure safety at all times in relation to snow and ice conditions. On appeal, Intact argued that the judge should have looked at the nature of each of the plaintiff’s specific claims. Intact took the position that those claims against Riocan reached farther and were broader in scope than its engagement of TGA under the contract. Intact also relied on its Certificate of Insurance (Certificate) to urge that it covered Riocan only in respect of the work performed by TGA under the contract, but that there was no coverage for Riocan as occupier. Also, Intact suggested that the judge erred in finding TGA responsible to remedy each and every hazard on the property, where the contract stipulated that TGA was only responsible to remove snow between 10 p.m. and 7 a.m., but not at 1 p.m. when the plaintiff fell. ... [read more]

Friday, April 07, 2017 @ 10:53 AM

Litigation funding for high-stakes commercial suits coming | Julius Melnitzer

In a sure sign of desperate times for general counsel and in-house law departments, litigation funding is coming into its own — although it is just starting make a dent in Canada. The desperate part is that cost constraints are failing. It’s not that GCs haven’t been trying. The legal press has been awash for some years now with self-congratulatory back-slapping so rampant it risks breaking the collarbone of the backslappers themselves.   ... [read more]

Wednesday, April 05, 2017 @ 10:50 AM

Courts reluctant to interfere with written beneficiary designations

The interpretation of insurance contracts is one of the more settled areas of law. While courts consider a number of factors, as denoted in MacDonald v. Chicago Title Insurance Co. of Canada 2015 ONCA 842 and similar cases, the general rule of thumb is that the policy language controls. On occasion, this leads to perverse results, as occurred in the recent case of Moore v. Sweet 2017 ONCA 182.  ... [read more]

Monday, April 03, 2017 @ 11:42 AM

CIVIL PROCEDURE - Actions - Availability - Right of action

Appeal by Godbout from a judgment of the Quebec Court of Appeal setting aside a decision concluding that her civil action against the medical staff who treated the injuries she had suffered in an automobile accident was admissible and appeal by Gargantiel from a judgment of the Quebec Court of Appeal affirming a decision that dismissed his claim against Sûreté du Québec officers who were allegedly negligent in searching for the crashed vehicle he was in. Godbout and Gargantiel were both seriously injured in automobile accidents and were compensated for the whole of their injuries by the Société de l’assurance automobile du Québec (SAAQ) under the Automobile Insurance Act (Act). In separate actions, they sought reparation for the injuries caused by the alleged subsequent faults of third parties. Godbout was involved in a serious automobile accident in January 1999. She was treated by Pagé, an orthopaedic surgeon, and the other respondents. After suffering from advanced compartment syndrome and muscle compartment necrosis that led to amputations following the surgery, Godbout filed a motion to institute proceedings against them for failing to act in accordance with good practice in treating her and causing separate injuries that had not been suffered in the automobile accident. The trial judge concluded that s. 83.57 of the Act did not preclude her action, but the Quebec Court of Appeal allowed the appeal and set aside the trial judge’s decision. In October 2009, Gargantiel lost control of his automobile. Even though the OnStar company, having located Gargantiel’s vehicle by satellite, contacted the Sûreté du Québec’s call management centre and provided it with the GPS coordinates of the vehicle, officers were unable to locate it and decided to give up the search. Gargantiel was found by a passerby 40 hours after the accident with severe hypothermia and other serious bodily injuries that led to the partial amputation of his leg. He claimed damages from the Attorney General of Quebec (AGQ) for injuries linked to the negligence of the officers who had participated in the search for his car. The trial judge granted the AGQ’s motion to dismiss, and the Court of Appeal dismissed Gargantiel’s appeal. The Supreme Court of Canada considered whether a person injured in an automobile accident who was eligible to receive compensation under the Act but whose condition was aggravated as a result of a fault committed by a third party could bring a civil action against the third party to seek compensation for bodily injury resulting from that subsequent fault. ... [read more]

Monday, April 03, 2017 @ 8:55 AM

Don’t ignore theory of damages in class actions

Although theories of liability such as a government’s negligence, a bank’s breach of contract or an insurance company’s bad faith usually get the legal headlines, sometimes the theory of damages will be the most important issue in a class action for the following four reasons:  ... [read more]

Friday, March 31, 2017 @ 2:19 PM

Canadian firm part of new global insurance network

Four law firms from across Europe and North America have launched a new multijurisdiction legal network to provide a global service to insurance clients. ... [read more]

Wednesday, March 29, 2017 @ 4:31 PM

Ontario looking to shake up new home warranty program

Ontario is looking to shake up the rules on how homebuyers and builders are served by the current Ontario New Home Warranties Plan Act and the Tarion Warranty Corporation (Tarion). ... [read more]