Does the duty of good faith require a disability insurer to inform a claimant of a legislative limitation period?
The end of 2017 brought the dismissal of a leave application at the Supreme Court of Canada that relates to this issue and which will be of interest to insurers throughout Ontario and throughout the country.
In Usanovic v. Penncorp, the Ontario Court of Appeal had decided that insurers were not obligated to inform insureds of the two-year limitation period when denying benefits.
The Court of Appeal has made it abundantly clear that partial summary judgment motions will only be granted in the clearest of cases.1 In Duggan v Lakeridge Health Corporation 2017 ONSC 7340 Justice Edwards found that the circumstances at bar constituted one such case. In this instance, the Plaintiffs were granted a partial summary judgment order requiring the Defendant, Dr. Padamjit Singh (the “Defendant”), to make a further advance payment of not less than $600,000.00 in advance of the trial scheduled for November 2018.
The Plaintiff, Ava Grace Duggan (“Ava”), suffers from Cerebral Palsy which was caused at the time of her birth. It was previously acknowledged by Dr. Singh that she breached the standard of care in delivering Ava, causing neurological impairment. Dr. Singh made an advance payment of $300,000 on September 21, 2015 following her admission of liability.
In the recent case of Wagner v Fellows,1 Mullins J. of the Superior Court found the defendant vehicle owner, Ms. Ley, not liable for the single-vehicle accident caused by her son under s. 192(2) of the Highway Traffic Act R.S.O. 1990, c H-8 (“HTA”). In assessing this issue, which was one of many issues before her, Mullins J. determined that Mr. Fellows had operated his mother's vehicle without her implied consent.
Recently, in Day v Haiderzadeh,1 the Ontario Superior Court of Justice reiterated settled law that evidence given in support of a potential question to be given to a jury cannot be based on pure speculation in future care costs claims. Rather, any question must include a minimum amount of objective evidence for a potential jury to calculate that amount. In this case, the court held that the evidence provided was wholly insufficient and invited a jury to speculate and generate a number “out of thin air”. All potential questions were rejected.
This case is an important reminder that, for any potential questions to be asked to a jury, an adequate and relevant amount of evidence must be put forward.
December 19, 2017
The recent decision, C.M. v P.M.,1 the Health Professionals Appeal and Review Board (“HPARB”) confirmed a decision of the Inquiries, Complaints and Reports Committee of the College of Kinesiologists of Ontario (“The College Committee”). The College Committee found that a Functional Abilities Evaluation (“FAE”) Report by P.M., a kinesiologist, was within the scope of her professional expertise and had sufficient detail about C.M.'s functional abilities and limitations.
This decision was appealed to the HPARB on a standard of reasonableness. The HPARB ultimately ruled that the above findings were within the range of possible, acceptable outcomes at law. The Lawyers of McCague Borlack LLP successfully advocated this position on behalf of P.M. and these advocacy efforts led the HPARB to reach its final decision.
On September 14, 2017, Justice Sanfilippo of the Ontario Superior Court of Justice granted summary judgment dismissing the plaintiff's occupiers' liability claim, stating that without objective evidence pointing to the cause of her slip and fall, the claim could not succeed.
The plaintiff, Mrs. Hamilton, a nine-year resident of an apartment building owned by the defendant, Toronto Community Housing Corporation (“TCHC”), alleged that on May 7, 2012, she slipped and fell in the 4th-floor hallway leading to her apartment unit...
The Ontario Superior Court of Justice recently released the trial decision where Martin Smith, successfully defended a chiropractic malpractice case where the plaintiff, (Patient), sued the defendant chiropractor for negligence and battery for alleged improper chiropractic treatments.
Recently in Middleton v Pankhurst,1 the Court of Appeal confirmed the parameters in which insurers may deny coverage on the basis that the insured was not a “person authorized by law” in accordance to Statutory 4 (1) Condition of O. Reg. 777/93:
Authority to drive
4 (1) The insured shall not drive or operate or permit any other person to drive or operate the automobile unless...
As Daylight Savings Time ends, so begins a new time for drivers in Ontario. Drivers must take extra care of their surroundings not only because of the weather but also because of reduced visibility due to less daylight. These shorter days and longer nights bring the risk of more motor vehicle accidents with pedestrians and cyclists.
This article will review post-accident steps for insurers and drivers.
In Teva Canada Ltd. v. TD Canada Trust, the Supreme Court of Canada considered the defence to the tort of conversion under s. 20(5) of the Bills of Exchange Act. The judges split 5-4, ultimately upholding the recent jurisprudence on the test for non-existing or fictitious payees instead of returning to a purely objective approach, as suggested by the dissenting judges.
The dispute arose from the fraudulent actions of Teva's finance manager.
The Office of the Information and Privacy Commissioner of Ontario (“IPC”) recently considered whether and under what circumstances insurers could collect health card numbers from their insureds.
The issue arose when the Ministry of Health and Long-term Care informed the IPC that individuals’ health card numbers were compromised by criminal activity and were being used to file fraudulent claims...
Non-pecuniary damages (also called general damages) are awarded to a plaintiff that sustained a non-monetary loss. These damages are not capable of exact quantification. Examples of such losses include, inter alia, pain and suffering.
On August 1, 2015, legislative reform to the Insurance Act2 took effect. The statutory deductible applicable to damages for a non-pecuniary loss was increased.
The amendments to the Insurance Act did not contain specified dates upon which the increased deductible and lower prejudgment interest rate were to come into effect. Naturally, the questions that arose from the above-described legislative changes were as follows...
October 25, 2017
Michelle Constance Moore (“Moore”) married Lawrence Anthony Moore (“the deceased”) in 1979. They had three children and cohabited until December 1999. The deceased began living together with Risa Lorraine Sweet (“Sweet”) in her apartment in the summer of 2000, and they cohabited until his demise on June 20, 2013. In the interim, Moore and the deceased were divorced in October 2003.
In October 1985, while married to and cohabiting with Moore, the deceased obtained a life insurance policy in the amount of $250,000. Moore was named the beneficiary, but was not made an irrevocable beneficiary pursuant to certain provisions in the Insurance Act (Ontario).
The issue is whether the proceeds of the life policy upon the death of the deceased were payable to the original beneficiary (who continued to pay the policy premiums) or the new beneficiary.
October 25, 2017
Complaints about civil jury trials in motor vehicle cases are not novel or uncommon. It is the perception of some (most notably the plaintiff bar) that jury results are typically unfavourable to plaintiffs. Recently, the complaints have increased to the point where even the Judiciary is weighing in.
For example, in 2016 a Superior Court Judge commented in a threshold decision...
October 24, 2017
Mediation is a process in which a neutral third party assists the disputing parties in reaching a mutually acceptable resolution. Mediation is designed to be a confidential and voluntary process, free of the formality and adversarial nature of court proceedings. Due to the benefits that the mediation process has yielded, Rule 24.1 of the Rules of Civil Procedure enforces mandatory mediation in some locations and for certain civil actions.
This article details reasons why a matter may not resolve at mediation, and still can list the benefits the process can offer disputing parties.
