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Wednesday, February 01, 2017 @ 02:06 PM

In a self-represented world, judges must be the gatekeepers | Gary Joseph

Our adversarial system operates on the premise of passive adjudication.  By this I mean the role of our judges is predominately reflexive as they hear evidence, weigh it and determine disputes based upon what has been presented to them.    Unlike some jurisdictions where judges play an investigative role, our judges must not search out evidence outside of what is presented in court to them by the parties to the dispute.   ... [read more]

Monday, January 30, 2017 @ 11:43 AM

Quick action, proper notice needed for overpayment recovery

An Ontario Superior Court judge has provided some much needed guidance on how to successfully recover overpayments made to claimants under the Statutory Accident Benefits Schedule (SABS). Since the introduction of the notice requirement in the 1996 amendments to the SABS, conflicting decisions have muddied the waters of what constitutes timely and proper notice. ... [read more]

Thursday, January 26, 2017 @ 07:00 PM

Insurance Law - The insurance contract - Interpretation - Coverage provisions and exclusion clauses - Reasonable expectation doctrine

Appeal by the defendant insurer from a summary trial judgment holding that the insurance policy issued to the respondent covered defects and deficiencies in a building. The respondent’s building was damaged as a result of a storm sewer overflow. When drywall was removed to examine the damage, building code violations were discovered and the building was found to be structurally unsound. The City ordered that the building be demolished or, failing that, there had to be a report from a structural engineer as to what steps were required to stabilize it. The appellant refused to pay for the cost of replacing the wood frame building on the basis that it was not covered by the policy. The respondent’s policy excluded any loss caused by the enforcement of bylaws that made it impossible to reinstate the property as it was immediately prior to the loss. A rider to the policy extended coverage, as a result of a peril insured against, for the cost of replacing a building arising from the enforcement of the minimum requirement of any bylaw. The summary trial judge interpreted the phrase “as a result of a peril insured against” to mean that once the water ingress and damage had taken place, the policy was extended to indemnify for the insured peril of bylaw enforcement. ... [read more]

Thursday, January 12, 2017 @ 07:00 PM

When serious injury doesn't pass threshold

How “serious” does a “serious impairment” have to be for a plaintiff to pass the threshold under s. 267.5 of the Insurance Act? What kind of evidence should be advanced by a plaintiff in order to establish a viable future income loss claim? ... [read more]

Thursday, January 12, 2017 @ 07:00 PM

High price paid for delay in filing notice

Is giving notice of an action to an insurer a prerequisite to triggering its obligation to assume the cost of providing a defence? Does the obligation to assume defence costs arise from the time the action is commenced? Is any prejudice suffered by the insurer, arising from late notice, appropriate to consider in this analysis? Recently the British Columbia Court of Appeal addressed these questions in Lloyd’s Underwriters v. Blue Mountain Log Sales Ltd. 2016 BCCA 352. ... [read more]

Thursday, January 12, 2017 @ 07:00 PM

Insurance Law - FIRE INSURANCE - Loss

Appeal by the owner’s insurer, Zurich, from a declaration that it was required to pay the owner’s losses. The respondent 2224981 (Eco-Lux) conducted its manufacturing operations at premises leased from the respondent landlord, 2047193 (the “owner”), pursuant to a month-to-month lease. A fire largely destroyed the premises in February 2012 and, as a result, Eco-Lux ceased production and stopped paying rent. The premises were repaired some eight months later. However, by that time, Eco-Lux had gone out of business. Eco-Lux’s insurer, Intact, provided coverage to Eco-Lux for lost profits pursuant to the property and business interruption policy, based on an estimate of Eco-Lux’s gross profits less expenses, including rent. The owner sought coverage for its business losses pursuant to its policy with Zurich. Zurich denied coverage on the basis that Eco-Lux was obligated to continue to pay rent during that period, despite the fire. In order to resolve the issue of who was responsible for compensating the owner for lost rent, the parties stated a question to the Court. The motion judge found that the lease between Eco-Lux and the owner was frustrated by the fire and Eco-Lux’s obligation to pay rent ceased as a result, and that the owner suffered business losses covered by its insurance policy. He declared that Zurich was required to pay the owner’s losses. ... [read more]

Thursday, January 12, 2017 @ 07:00 PM

Corporate loophole closed

Last March the federal budget introduced changes that affect tax treatment of life insurance policy transfers and deaths of policy holders. To examine them, we first must see how the Income Tax Act treats life insurance policies. ... [read more]

Thursday, December 08, 2016 @ 07:00 PM

Move to cut breadth of privilege stopped by top court in two cases

Counsel for the organized bar say they are pleased with separate Supreme Court judgments that robustly protect litigation briefs, and privileged lawyer-client communications, from compelled production to regulators and other state officials. ... [read more]

Thursday, December 08, 2016 @ 07:00 PM

Automobile insurance - Compulsory government schemes - Uninsured or underinsured motorist coverage

Appeal by the plaintiff, Brugger, from dismissal of his action and from a counterclaim judgment in favour of the defendant, the IWA Forest Industry LTD Plan. The plaintiff was disabled in a 2001 automobile accident and received benefits under the defendant’s LTD insurance plan. He also received disability benefits from the ICBC calculated as a percentage of his gross earnings. In addition, the plaintiff received an ICBC settlement of $197,775 in satisfaction of his tort claim, plus $240,000 in underinsured motorist protection benefits. Payments under the defendant’s LTD Plan were conditional upon a reimbursement agreement in the event of an eventual settlement. The defendant sought repayment of $59,861 in LTD benefits pursuant to the LTD Plan and ceased payment of further benefits. The plaintiff commenced proceedings alleging wrongful termination of benefits. The defendant counterclaimed for payment under the reimbursement agreement. A summary trial judge concluded that the defendant was entitled to repayment of $40,383 plus interest. The plaintiff’s claim was dismissed. The plaintiff appealed. ... [read more]

Thursday, December 08, 2016 @ 07:00 PM

Insurance Law - Automobile insurance - Accident benefits - Deductions

Appeal by the insured, Hamblin, from refusal of declaratory relief against her insurer, Standard Life. The appellant received non-earner benefits (NEBs) from her automobile insurer, a non-party to the litigation, in connection with a 2013 accident. The appellant also received long-term disability (LTD) income payments from the respondent insurer in connection with a prior 2011 accident. The appellant was not working at the time of the second accident. In order to qualify for the NEBs, she was required to show a complete inability to carry on a normal life within 104 weeks after the accident, and that she did not qualify for an income replacement benefit. Although the appellant’s automobile insurer was entitled to deduct the LTD payments from the NEBs, it did not do so. However, the respondent determined it was entitled to reduce its LTD payments by the amount of the NEBs. The appellant sought a declaration that the NEBs were not deductible from the LTD payments. The application judge found in favour of the respondent, as the deduction of the NEBs was consistent with an LTD indemnity policy. Hamblin appealed. ... [read more]