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No Nonsense LAT — MB at the forefront!
September 23, 2016

McCague Borlack is thrilled to announce that James M. Brown, a partner from our Ottawa Office, successfully argued two of the first accident benefits decisions before the Licencing Appeal Tribunal (“LAT”) that help shed some light on this new process.

In Anne Pollex and Aviva Canada, the applicant was injured in a motor vehicle accident on March 19, 2015. In dispute were outstanding Treatment and Assessment Plans (“OCF-18”) that were denied as a result of the Minor Injury Guideline (“MIG”) and the denial of income replacement benefits (“IRBs”). After a mixed written and teleconference hearing, the Adjudicator ruled in the insurer's favour on both issues.

The Mechanics of the Duty to Defend
by Garett Harper
September 15, 2016

The main purpose of commercial general liability insurance policies (“CGL policies”) is to provide protection to an insured party against financial losses which may be incurred if the insured is sued by a third party. The relationship between an insurer and an insured party is dependent on the wording of the relevant insurance contract. Typically though, CGL policies, similar to other liability insurance policies, require an insurer to fulfill two distinct, but related duties... 

Circumstantial Evidence should not be Overlooked by Claims Adjusters
September 14, 2016

In R v Villaroman, the Supreme Court of Canada recently dealt with the issue of circumstantial evidence and the inferences that can be reasonably drawn from that evidence in order to find an accused guilty beyond a reasonable doubt.  

Traditionally, inferences had to be taken from direct evidence of facts. Villaroman has changed this thought process; the Supreme Court of Canada ruled that it is now acceptable to pull inferences from circumstantial evidence. 

PIPEDA and the Internal Complaints Process of Insurers and Banks Case Study: Decision from the Office of the Privacy Commissioner of Canada
September 13, 2016

PIPEDA requires the full and timely disclosure of personal information generated in the course of commercial activity. However, personal information does not need to be disclosed when the information is generated in the course of a “formal dispute resolution process”, such as an arbitration. For years now, all insurance companies incorporated in Canada have been required to establish procedures for dealing with complaints. The question then arises: does personal information generated in the course of the complaint become subject to PIPEDA?

How to "knock out" claims to Tavern Owners sued for injuries sustained in bar fights
August 31, 2016

The law recognizes that large groups of people who are drinking, even in moderate quantities, can become rowdy and pose a danger to patrons of establishments that serve alcohol (though the definition of “moderate” drinking differs from person to person, especially in a country like Canada where we often swell up with national pride at the sight of beer commercials). As a result, taverns are obliged, under the Occupier's Liability Act1 to take reasonable steps to monitor the premises and to take positive steps to intervene to prevent fights if such incidents are reasonably foreseeable.

Lockdown at the Harbour: Arresting Multiple Ships? To safeguard eventual judgment
August 23, 2016

A vessel strikes a marine terminal trestle while in port in Vancouver, causing damage in excess of $60 million dollars. The vessel's worth pales in comparison to the damages caused, though there are a number of sister ships also docked at the port. The terminal owner is rightfully concerned that the vessels will simply leave Canadian waters, sailing out of the jurisdiction and taking the opportunity for any realistic recovery along with them. How can the terminal owners guarantee a future judgment will be satisfied when no one ship can satisfy the damages?

Declaring Values on "Contracts of Carriage" in Ontario
August 17, 2016

It is often said that a bill of lading is not a contract of carriage, but is merely “excellent evidence” of its terms. However, the courts are divided on how far beyond the bill of lading we can go, specifically in terms of declaring the value of a shipment. This unpredictability in the law can mean the difference of hundreds of thousands of dollars for a carrier who has lost or damaged cargo in its possession.

Reasonable and Necessary: Defining the elusive test from the Statutory Accident Benefits Schedule
by Michael Kennedy
August 12, 2016

Whether an expense or service is “reasonable and necessary” is an important legal test in the context of the Statutory Accident Benefits Schedule (“the Schedule”). It is used to determine entitlement to the majority of benefits available under the Schedule.

The undefined nature of the “reasonable and necessary” test can make adjusting claims a nightmare for adjusters who understandably want to rely upon their experts, but are left in the middle of competing opinions. Shedding some light on the important yet ambiguous “reasonable and necessary” test should help end the nightmare.

Court of Appeal Decision on Dependency in a Priority Dispute Dealing with New Relationships
August 05, 2016

The Court of Appeal released a new decision last week on dependency in a priority dispute between Intact and Allstate.

The Court of Appeal reviewed the circumstances of the relationship of the claimants, a woman (Paula) and her two children, who moved in with Paula’s boyfriend (Kyle) only seven weeks before the accident, in order to determine priority...

Pokémon Go: Augmented Reality is the New Reality for Liability Insurers
July 15, 2016

Pokémon Go, a new app for Android and iOS users, has captured the attention of smartphone users worldwide since its release on July 6, 2016. The app uses the digital camera and GPS technologies in smartphones to create an augmented reality in which users can capture, train, and battle their Pokémon in real life settings. Although a fun and perhaps nostalgic activity for some, Pokémon Go will soon become a real concern for liability insurers.

Update on Issues relating to Autonomous Vehicles: Recent Fatality & the Anticipated Challenges arising from the Accident
July 08, 2016

News of the death of Joshua Brown, a Florida man who died following a motor vehicle accident that occurred while his Tesla Model S vehicle was in autopilot mode, has attracted international media attention as he is the first US fatality from a motor vehicle accident where the deceased was in a vehicle that was in self-driving mode. This development provides occasion for us to comment further on the status of autonomous vehicles and the law in Ontario.

An overview of the statutory obligations for insurers to participate in mediation and to attempt to settle
by Van Krkachovski
July 05, 2016

You will recall that the Ontario Court of Appeal in Keam v Caddey, 2010 ONCA 565 awarded the plaintiff $40,000 in additional costs after an insurer refused (twice) to participate in mediation prior to trial. Aviva Canada took the position that the plaintiff would not be able to meet threshold and therefore Aviva did not believe it was obligated to attend mediation as there was nothing to negotiate.

The Court of Appeal found that the Insurance Act imposes two obligations on the insurer. First, the insurer is obligated to participate in mediation when requested. Second, the insurer is obligated to attempt to settle the claim as expeditiously as possible.

Back to the Future Causation Alert: Clusters Trumps Medical Causation in Judicial Review of Technicians' Breast Cancer
June 29, 2016

Michael J. Fox is a well-known Canadian comedic actor probably best known for the "Back to the Future" movie trilogy and other successful small screen comedies. In medical circles, he is also known for having Parkinson's disease and as a spokesperson for Parkinson's disease research. But Michael's Parkinson's is a little different. He was a member of a British Columbia production crew in the 1970's. Several of that crew went on to develop Parkinsons at a young age. The statistical probability of a number of persons, or a cluster, in the one production crew developing Parkinson's was very small. Clusters "suggest" an environmental agent at work – whether it is scientifically provable or not.

Mandatory Training for Commercial Truckers a Welcome Change
June 29, 2016

On June 28, 2016, the Ontario Ministry of Transportation (the Ministry) made an announcement that has significant implications for both the trucking and insurance industry. As of July 1, 2017, individuals seeking to obtain their Class A license for commercial trucks will be required to successfully complete an entry-level training course before being permitted to take their Class A road test.

When to say Enough? Marfo v. Ahmed: A restatement of the law regarding defence medical examinations
June 15, 2016

On June 6, 2016, the Superior Court of Justice released its decision inMarfo v. Ahmed.1 In this case, the defendants, having already obtained a defence physiatrist assessment, requested that the plaintiff undergo a defence orthopedic assessment to counter the orthopedic report served by the plaintiff. Master Muir rejected the request and dismissed the defendants' motion, with costs. Here's why...