In the recent decision of Aranas v. Kolodziej, Michael Kennedy of McCague Borlack was successful in securing a dismissal of the action as against its client on summary judgment. Despite the challenges routinely presented by these motions in the motor vehicle accident context, the defendants led sufficient evidence to establish that there was no genuine issue requiring trial.
November 30, 2016
Self-driving cars are no longer something we can only imagine in futuristic movies. Taken right out of James Bond, Land Rover's Range Rover Sport is already capable of being controlled via smartphone like a remote-controlled car. Subaru's EyeSight system has the ability to independently adjust cruise control to maintain a safe distance from the car ahead. Tesla's vehicles are equipped with a system, aptly named "autopilot", that allows for near-full control of the vehicle during highway driving using radars and cameras to stay in the middle of a lane, transition from one highway to another, and even automatically change lanes without requiring driver input. The technology is already here, and if your car is relatively new, it's probably already in your own driveway to some degree...
With the government's stated intention to legalize marijuana, and the current challenge with policing these new businesses, dispensaries and vapour lounges can now be found in many urban and suburban areas. While many of these cater to individuals with needs for medicinal marijuana and require prescriptions before dispensing, some dispensaries and vapour lounges are less scrupulous when selling marijuana or marijuana-based products to their customers.
Pursuant to Rule 30.03 of the Rules of Civil Procedure, a party shall serve an affidavit of documents disclosing all documents within their knowledge, information and belief relevant to any matter in issue in the action that are in the party's possession, control or power.
We will focus on what needs to be included in the affidavit of documents for first party actions.
We have compiled a non-exhaustive list of considerations for the drafting of pleadings for first party actions between the insurer and insured...
Statutory conditions contained within the policy, relief from forfeiture, and limitation period issues, are examples of special considerations when dealing with first party claims...
In your drafting of a Statement of Claim, consider whether there is sufficient evidence to support a finding of bad faith against the insurer. If an insured can prove bad faith against an insurer on a first party claim, the court may award punitive damages against the insurer. However, in our experience, insurers react to a claim for bad faith in a different manner than to a claim for other damages, so you will ‘up the ante' if you plead bad faith...
The insurance contract is a contract of utmost good faith. This duty is reciprocal. This duty not only requires insurers to respond to and investigate claims in good faith, but also requires insureds to present their claims in good faith. This duty of utmost good faith is an implied term of the insurance contract and should be maintained throughout every step of the claim process.
Insurer
The duty of good faith of the insurer towards the insured has two components...
Generally, an insurance policy will contain the following key information:...
An insurance policy is a contract between the insurer and the insured. A ‘first party' is the party who is insured under an insurance policy and is often referred to as the policyholder or the insured. If an insured makes a claim directly against his/her own insurance company (the ‘insurer') in reliance on an insurance policy, this is referred to as a ‘first party claim'.
Some common examples of a first party claim are...
The Court of Appeal has released a decision placing the onus on an insurer for determining whether a claimant is catastrophically impaired. Specifically, if an insurer withholds catastrophic benefits until it receives an OCF-19, then it could be faced with a massive interest award from the date the catastrophic impairment arose (not the date the OCF-19 was submitted or accepted by the insurer).
In this case, Economical appealed the order of the application judge that required it to pay the applicant interest...
How “serious” does a “serious impairment” have to be for a Plaintiff to pass the threshold under section 267.5 of the Insurance Act?
A recently released appeal decision of the Divisional Court provides useful guidance on the pitfalls awaiting Plaintiffs in their attempts to establish a threshold injury.
November 03, 2016
It is not news to anyone that resolving civil claims is a long and costly process. A great deal of time and money is regularly lost due to the back-logged court system and legal expenses associated with mandatory procedure that must be followed, all while the procedure and jurisdiction of the court are not needed to come to a resolution. It is often in the best interests of insurers to resolve subrogated claims that are defended by insurers without the involvement of the courts.
The Canadian Inter-Company Arbitration Agreement ("the agreement") is an initiative designed to streamline claims disputes as between insurance companies who are signatories to the agreement. All insurance companies who are signatories to the agreement are therefore bound to comply with the obligations set-out therein. The process encourages efficient and cost-effective resolution to these claims.
October 20, 2016
The Government of Ontario is striving to make the roads in this province a safer place. In one of its latest endeavors, Ontario has implemented a new regulation in an effort to promote safer driving during those slushy and icy winter months.
The new regulation pertains to offering Ontario drivers an incentive to get winter tires on their vehicles.
This paper includes case law that indicates not having winter tires could perhaps affect the outcome of a decision.
October 13, 2016
Discrimination is a "distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or groups, not imposed on others." Such burdens "withhold or limit access to opportunities, benefits, and advantages available to other members of society.
