October 03, 2012
When an accident occurs, the typical liability issues arise. Upon receipt of a claim, insurers are prompted to consider a number of important questions. Such questions include whether the accident was a result of the action or inaction of the driver; what if anything could have been done to avoid the accident or mitigate the consequences; what kinds of contributing factors may have been at play (such as the road or weather conditions), among other considerations.
When an accident involving a transport truck or marine vessel occurs, there are also often cargo and fuel considerations and more specifically, environmental considerations relating to fuel and cargo spills. It is this very issue that some insurers have been failing to turn their minds to; more specifically, the environmental liability aspects of accidents that result in fuel or oil spills, both from trucks and ships.
This paper endeavours to elucidate some of the relevant statutes to consider when such an accident occurs and shed light on the appropriate steps an insurer ought to take upon receiving such claims.
October 01, 2012
A recent FSCO decision has found marijuana to be payable by accident benefits insurers in certain circumstances. In T.N.and Personal Insurance Company of Canada (FSCO A06–000399), a catastrophically impaired claimant sought, among other benefits, entitlement to the purchase of medical marijuana. While the claimant had used marijuana in the past, her use (which was approved by Health Canada) had increased since the accident. The insurer unsuccessfully argued that the claimant's marijuana treatment was experimental and therefore not payable. Find out why...
September 30, 2012
It is now easier for injured claimants with psychological impairments to qualify as “catastrophically impaired” and consequently be entitled to enhanced statutory accident benefits. The Court of Appeal inPastore v. Aviva Canada Inc., 2012 ONCA 642, has held that a “catastrophic impairment” requires only one (out of four) functions at the marked impairment (class 4) level.
As accident benefits insurers are aware, paragraph (g) of subsection 2(1.1) of the Statutory Accident Benefits Schedule—Accidents on or after November 1, 1996 defines “catastrophic impairment” to include the following...
September 26, 2012
Fans attend sporting events every day across Canada and throughout the world. Many fans are there to cheer on their favourite teams, witness a historical game between long-standing rivals, and simply enjoy the traditions associated with attending such an event. These games may attract large crowds and stir emotions, particularly as there is a culture of alcohol often associated with professional sports. While one may reasonably expect to witness a player hurt themselves on the field or on the ice, spectators do not often expect that they themselves will be injured.
This paper examines a range of situations in which liability may attach to sports and entertainment facility owners and operators when spectators are injured during sporting events, as well as how such liability may be avoided. Attention is given to the courts’ interpretation of the legislative provisions in Ontario’s Occupiers’ Liability Act. This area of law serves as an abundant source of Canadian sports law jurisprudence. The discussion proceeds with an outline of categories of available defences to spectator claims, followed by an examination of select issues of significance to Canadian sports facility owners and operators. Finally, new frontiers in spectator liability are explored, as well as risk management strategies for avoiding spectator claims.
September 24, 2012
On December 7, 2011 the Ontario Divisional Court released its decision in two appeals that both involved property damage caused by the failure of leased hot water tanks. In each case the hot water tank, located in the basement of the homeowner, developed a leak which resulted in damage to the home and contents. Leave to appeal to the Court of Appeal has been granted in both cases. The date for the hearing of those appeals has not yet been set.
The major issue in these cases is the question whether the condition of fitness for intended purpose that is implied in the lease of a product that is subject to the Consumer Protection Act will apply not only at the outset of the lease, but throughout the term of the lease.
The purpose of this paper is to outline some coverage concerns that can arise in the manufacturing and distribution chain. These issues of coverage apply equally to those parties seeking to obtain cover from another or seeking to avoid a coverage obligation being imposed upon it. This general discussion of coverage issues applies within the context of vendors, distributors and manufacturers1facing a claim by a plaintiff, or many plaintiffs, arising from harm incurred through the use of a product.
The following discusses the notion of risk transfer in this distribution chain, the underlying rationale of vendors in seeking to transfer risk, and the possible considerations applicable to affixing liability along the distribution chain.
In today's expanding global marketplace, product liability claims are common. Typically, these claims involve a chain of defendants of whose hands the product has passed through. Liability stemming from negligence can occur at any stage of the process, from design, to manufacturing, to consumption. Thus, anyone involved in the process of creating a product can find themselves held liable when the product is defective and/or if the product injures a plaintiff.
The distributors of products typically have no involvement in the manufacturing of the products that they distribute and put into circulation.3 However, a distributor's negligence could contribute to or cause a plaintiff's injury. As a result, distributors are not held strictly liable for every defective product that they distribute. The distributor's liability will depend on...
The case of Muskoka Fuels v. Hassan Steel Fabricators Limited raises some interesting questions regarding the application of the Sale of Goods Act to claims involving manufacturing defects. In particular, Muskoka Fuels, which involved the environmental contamination of land due to the failure of a diesel fuel tank, raises questions regarding the extent to which the cause of a defect must be proven in order for liability under the Sale of Goods Act to be established.
At trial, Justice Healey came to the following conclusions based on the evidence...
On August 30, 2012, the Ontario Court of Appeal released the long awaited decision of Gordyukova v. Certas Direct Insurance Company.
In 2001, the claimant, Gordyukova, was involved in a MVA. She sought statutory accident benefits from her insurer. After an unsuccessful FSCO mediation regarding her entitlement to medical benefits, she issued a Statement of Claim in 2002 seeking damages and a declaration that she was entitled to continued accident benefits.
August 27, 2012
The British Columbia Court of Appeal recently released a decision on the case "Loychuk v Cougar Mountain Adventures" which has significant implications for the law regarding the enforceability of liability waivers.
At the trial level, the plaintiffs sought damages for personal injuries sustained in a zip-lining accident. The tour involved strapping a person into a harness, which would then be sent down a line, reaching speeds of up to 100 km an hour over a distance, on some lines, greater than 1,500 feet.
This article reviews many aspects of the case including the two elements that must be established before a contract can be set aside on the grounds of unconscionability; and a three stage analysis which must be applied in order to determine whether a signed release of liability is valid.
It is well established that employees who are subject to indefinite term contracts are required to mitigate their damages by searching for alternate employment upon termination of their employment contract. However, in Bowes v. Goss (cite), a recent Ontario Court of Appeal decision, the court ruled that employees subject to a fixed term contract will not be subject to the same requirement, even where the employment contract between the parties is silent on the duty to mitigate...
The Ontario Court of Appeal's recent decision in Zurich Insurance Company Ltd. et al. v. Ison T.H. Auto Sales Inc. sets out important principles on the issue of who has the right of carriage and control of litigation in circumstances where there is a combined subrogated and uninsured claim.
The plaintiff, injured in a car accident, sued the at-fault motorist for damages including, inter alia, loss of income and loss of earning capacity. At the date of loss, the plaintiff was employed and she continued her pre-accident employment for several years after the accident, but ultimately ceased working “due to disability”. She applied for and received disability benefits through the Canada Pension Plan (CPP) and Hospitals of Ontario Pension Plan (HOOP).
At McCague Borlack LLP, one of the ways our Accident Benefits team keeps track of the current issues and developments at the Financial Services Commission of Ontario (FSCO) is by having a representative attend their counsel meetings which occur every other month.
Some of the issues discussed during the meeting held on May 25, 2012, included: a discussion on the Parveen v. Aviva decision, Notifying FSCO when files settle, Consent failures, and Outsourcing mandatory mediations.
May 10, 2012
Justice Murray of the Ontario Superior Court of Justice held on August 23, 2011 that an assault during an attempted car-jacking qualified as an accident pursuant to the Statutory Accident Benefits Schedule. A synopsis of this decision and its implications for the insurance industry was reported in the October 2011 edition of McCague Borlack's Transportation Newsletter.
The Personal Insurance Company appealed Justice Murray's ruling and, on May 9, 2012, the Ontario Court of Appeal overturned Justice Murray's decision, in part.
