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Thursday, December 01, 2016 @ 07:00 PM

Insurance Law - AUTOMOBILE INSURANCE - Accident benefits - Definitions - Accident

Appeal by Ayr Farmers Mutual Insurance Company (Ayr Farmers) from decision of application judge determining that matter could not be determined on an application. Wright applied to Ayr Farmers for statutory accident benefits (SABs), claiming that he was injured when he tried to close his garage door after backing his vehicle out of his garage. Ayr Farmers denied Wright’s claim for SABs, stating that his injuries were not the result of an “accident” as defined in the Statutory Accident Benefits Schedule, and that he was therefore not entitled to SABs. Wright applied for mediation under s. 279 of the Insurance Act to resolve his dispute with Ayr Farmers. Rather than attending the mediation, Ayr Farmers issued an application under Rule 14 of the Rules of Civil Procedure requesting a determination of whether Wright was involved in an accident within the meaning of the Schedule. Ayr Farmers argued that the question of whether Wright was involved in an accident was a preliminary issue that must be determined before the s. 279 scheme applied. The application judge held that the s. 279 scheme governed all disputes concerning entitlement to SABs, including whether a claimant was involved in an accident and qualified as an insured person under the Schedule. The application judge also found that this was not an appropriate case for an application. Ayr Farmers submitted that the question of whether Wright was involved in an accident was not a SABs issue but rather a coverage issue. ... [read more]

Thursday, November 24, 2016 @ 07:00 PM

Insurance Law - Automobile insurance - Accident benefits - Total disability - Compulsory government schemes

Appeal by the insurer, Economical Mutual Insurance, from a judgment awarding the insured, Van Galder, interest arrears owed for statutory accident benefits. The insured was badly injured in a 2004 motor vehicle accident. The insurer paid attendant care and housekeeping benefits for non-catastrophic cases until January 2006. The insurer took the position that the medical evidence did not support a finding of a catastrophic impairment. Between 2007 and 2012, the insured filed four applications for a determination she suffered a catastrophic impairment. Following the fourth application, the insurer’s medical examiners evaluated the insured and the insurer conceded she had sustained a catastrophic impairment. The insurer paid a lump sum for the additional retroactive benefits, but refused to pay interest on the attendant care benefits, housekeeping and home maintenance benefits on the basis that no overdue amounts arose until the insured’s application and final determination in 2013. The judge ordered the insurer to pay compounded interest of two per cent per month on the benefits accruing from 2005 and 2006 on the basis the insured was catastrophically impaired since her accident, the additional amounts were therefore overdue, and denial thereof would be inequitable. The insurer appealed. ... [read more]

Thursday, November 10, 2016 @ 07:00 PM

Pet insurance growing, but read the fine print

Fido is not feeling well. For many pet owners, that reality brings with it much more than concern for the four-footed member of their family. Vet bills, medications and follow-up care can be very expensive, often running into the thousands of dollars. Many animal lovers are turning to pet insurance for medical coverage and peace of mind. ... [read more]

Thursday, October 27, 2016 @ 08:00 PM

Make sure you're covered when working pro bono

The risk of a malpractice claim should not deter lawyers from working pro bono. LAWPRO, provider of the primary professional indemnity insurance mandated by the Law Society of Upper Canada, has made significant provision for lawyers who want to maintain coverage while offering pro bono services, but there are important conditions to keep in mind when considering opportunities. ... [read more]

Thursday, October 27, 2016 @ 08:00 PM

Insurance Law - Liability insurance - Exclusions

Appeal by Arch Insurance Canada Ltd. (Arch) from a determination that it had a duty to defend the Financial and Consumer Services Commission (Commission) and from a costs order. The Commission investigated individuals who sold securities. Arch alleged that individuals caused to be published, distributed, and released to members of the media, statements that were defamatory and that related to an investigation by the Commission over an alleged interprovincial Ponzi scheme. An action was commenced in 2011. The Commission was insured pursuant to a “claims made” policy issued by Continental Casualty Company, Temple Insurance Company, XL Reinsurance America Inc. and Aviva Insurance Company of Canada (Encon Group), which was in effect from November 28, 2010 to February 2, 2012. The Encon Group accepted coverage under the policy and defended the Commission against the 2011 action. In 2012, Arch issued a policy of insurance to the Commission, which was in effect from February 2, 2012 to February 2, 2013. By way of endorsement, the Arch policy specifically excluded from coverage any loss or claim arising out of or attributable to the 2011 action. While the Arch policy was in effect, Drapeau served the Commission with notice of a claim against it, and in 2013 Drapeau filed a Notice of Action with Statement of Claim Attached alleging intimidation and breach of common law duties to act in good faith. The 2013 action was formally commenced approximately one year following the expiration of the Encon Group Policy and of a 30-day extension provided by the Policy. The Commission sought a defence to the 2013 action from both Arch and Encon Group. Both insurers denied coverage under their respective policies. The Commission filed an application requesting a declaratory order that either Arch or Encon Group had a duty to defend the Commission against the 2013 action. The application judge ruled Arch had a duty to defend the Commission and ordered it to defend the Commission in the 2013 action. The judge also ordered Arch to pay the legal costs of the Commission, LeBlanc and Encon Group pursuant to a Sanderson order. Arch submitted the application judge erred in failing to consider and apply the definition of Interrelated Wrongful Acts as defined in the Arch policy and in ordering Arch to pay the costs of the Encon Group on the basis of a Sanderson order. ... [read more]

Thursday, October 20, 2016 @ 08:00 PM

Insurance Law - Automobile insurance - Uninsured or underinsured motorist coverage

Appeal by the plaintiff from the motion judge’s determination that payment of his claim was barred by s. 25(1) of the Motor Vehicle Accident Claims Act. The appellant was a Brazilian citizen. While he was in Canada illegally, the appellant was struck by an unidentified driver while crossing the street. The appellant had previously been deported from Canada. He re-entered Canada in 2002 and he remained in Canada illegally until the time of the accident. He obtained an Ontario driver’s licence, which he renewed when required although he never owned a car. He had no insurance and he supported himself by working illegally in the construction industry. He also registered a drywall sole proprietorship, applied for a tax number as a non-resident, joined a union and carried out normal daily living activities. The appellant commenced a claim against the unidentified driver and the Superintendent of Financial Services for compensation out of the Motor Vehicle Accident Claims Fund. After commencing the proceeding, the appellant unsuccessfully claimed refugee status and was deported. He now resided in Brazil. The Superintendent defended the action on the basis of s. 25(1) of the Motor Vehicle Claims Act, which precluded payments out of the Fund in favour of a person who ordinarily resided outside Ontario at the date of the motor vehicle accident. Both parties moved for summary judgment to determine the appellant’s entitlement to access the Fund. The motions judge found that the appellant was not entitled to access the fund, as he was not ordinarily residing in Ontario as of the date of the accident. The motion judge based his decision on the fact that the appellant had twice entered Canada unlawfully and worked illegally, and that he knew he could not return to Canada without express authorization under the relevant immigration legislation. As a result, the motion judge dismissed the appellant’s motion for summary judgment and dismissed his claim and granted the Superintendent’s companion motion for summary judgment. The appellant appealed arguing that the judge erred in finding that payment of his claim was barred by s. 25(1) of the Act. ... [read more]

Thursday, October 13, 2016 @ 08:00 PM

Get permits, community acceptance for film shoots

This summer Toronto again saw a steady flow of film productions coming north of the border to shoot — the Flatliners sequel starring Ellen Page and Kiefer Sutherland, Anon, starring Clive Owen and Amanda Seyfried and Downsizing, starring Matt Damon and Kristen Wiig (just to name a few). ... [read more]

Thursday, October 06, 2016 @ 08:00 PM

Insurance Law - Property insurance - Exclusions

Appeal from a judgment of the Alberta Court of Appeal setting aside a decision granting Ledcor Construction Ltd.’s (Ledcor) action against Northbridge Indemnity Insurance Co. (Northbridge). The outcome of these appeals hinged on the interpretation of an exclusion clause in a common form of all-risk property insurance, variably referred to as “builders’ risk”, “contractors’ risk”, “all risks”, “multi-risk” or “course of construction” insurance. This type of insurance covered physical damage on a construction site. It was usually issued to the owner of the property under construction and the general contractor, providing coverage for them as well as for all contractors and subcontractors working on the project. The exclusion clause at the heart of these appeals was a standard form clause that denied coverage for the “cost of making good faulty workmanship” but, as an exception to that exclusion, nonetheless covered “physical damage” resulting from the faulty workmanship. In the present case, a contractor was hired to clean the windows of a building under construction. In the course of the cleaning, the contractor scratched the building’s windows, which ultimately needed to be replaced. The windows’ replacement cost was claimed by Ledcor under a builders’ risk policy issued in favour of the owner and all contractors involved in the construction, but Northbridge denied coverage on the basis of the “cost of making good faulty workmanship” exclusion. The issue before the courts was thus to determine whether, where windows of a construction project were damaged from post-installation cleaning by a contractor responsible for only their cleaning, the cost of the windows’ replacement was excluded from coverage under the faulty workmanship exclusion. After determining that the work performed by the contractor amounted to faulty workmanship, the trial judge applied the contra proferentem rule against Northbridge and concluded that the faulty workmanship exclusion did not exclude from coverage the damage that the contractor had caused to the building’s windows. Applying a correctness standard of review to the interpretation of the insurance policy, the Court of Appeal of Alberta overturned the trial judge’s decision and declared that the damage to the building’s windows was excluded from coverage, as the damage was physically or systematically connected to the very work the contractor had performed. ... [read more]

Thursday, September 22, 2016 @ 08:00 PM

Administrative Law - Judicial review and statutory appeal - Standard of review - Reasonableness

Appeal by Allstate Insurance Company of Canada (Allstate) from a determination that Allstate was responsible for paying statutory accident benefits (SABs) owed to the claimants, Paula Chartrand and her two daughters. Paula left her husband and moved to another city with her daughters into Kyle’s home. Kyle was responsible for most of the claimants’ expenses, as Paula was not contributing to household expenses or paying any of the bills. The claimants were involved in an automobile accident. The daughters experienced catastrophic injuries. The claimants applied for and received accident benefits from Intact Insurance Company (Intact), the insurer of the vehicle they were riding in at the time of the accident. Intact argued that Allstate, who insured two vehicles owned by Kyle, should pay those benefits. Intact took the position that Allstate was obligated to pay because the claimants were dependent on Kyle at the time of the accident. The arbitrator found that the claimants were not principally dependent for financial support on Kyle at the time of the accident, therefore Intact was responsible for the accident benefits. Intact’s appeal was allowed. The appeal judge concluded that the arbitrator had committed an error of law by importing a permanency requirement into the analysis and an error in principle by speculating about future events. Because of these errors, the appeal judge reviewed the arbitrator’s decision on a correctness standard, set aside the arbitrator’s decision, and concluded that Allstate was responsible for paying the accident benefits owed to the claimants. Allstate submitted that the appeal judge erred by reviewing the arbitrator’s decision on a correctness standard and that the arbitrator’s decision should be restored because it was reasonable. ... [read more]

Thursday, September 22, 2016 @ 08:00 PM

Insurance Law - Automobile insurance - Accident benefits - Death benefits

Appeal by Holtby-York from a decision by the Automobile Injury Appeal Commission (Commission) dismissing her appeal from a decision regarding her survivor benefits. York was fatally injured in a motor vehicle accident. His spouse, Holtby-York, was entitled to survivor benefits pursuant to s. 144 of The Automobile Accident Insurance Act (Act). At the time of his death, York was unemployed and receiving both Workers’ Compensation and Canada Pension Plan (CPP) disability benefits as a result of injuries sustained by him in a work-related incident. Saskatchewan Government Insurance (SGI) was the insurer under the Act. It refused to include York’s CPP disability payments as income when calculating the Holtby-York’s survivor benefits. The Commission dismissed Holtby-York’s appeal. ... [read more]