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Ever Escalating Claims - Updated: The Evolving Auto Insurance Product Stresses on the System
by Catherine A. Korte
October 31, 2014

The Final Report of the Ontario Automobile Insurance Anti-Fraud Task Force was released. This task force was appointed to advise the government of Ontario on the extent of automobile insurance fraud and what to do about it. Its findings were as follows:

Too big for its britches? Fitting Chronic Pain into the Minor Injury Guideline of Ontario's Accident Benefits Scheme
October 31, 2014

This article explores the interaction between chronic pain and the Minor Injury Guideline (“MIG”), which came into force in Ontario in 2010.

Seeing is Believing
October 31, 2014

Surveillance is a powerful tool in cases involving plaintiffs with chronic pain, because it can lend objectivity to a case rife with subjective reporting. 

Overall, the relative cost of surveillance evidence as compared to its benefit, often makes it a cost-effective tool in personal injury litigation.

There are, however, important rules that defence counsel must abide by when gathering surveillance. These disclosure requirements are discussed below, and they suggest that surveillance should be gathered and disclosed early in the litigation process in order to encourage early resolution of the matter, if at all possible.

Establishing Causation in Cases of Chronic Pain
by James Tomlinson
October 31, 2014

This paper provides an overview of the law of causation as it pertains to a plaintiff that suffers from chronic pain as the result of an injury. It will begin with an analysis of recent Supreme Court of Canada jurisprudence regarding how a plaintiff can establish factual causation through the “but for” test. It will then provide an analysis of legal causation, which has also been referred to as “remoteness”. In the remoteness analysis, the paper will clarify when chronic pain can be considered a foreseeable injury, and discuss the principle of the “thin-skulled plaintiff”. It will conclude by exploring how the courts apportion damages when faced with pre-existing injuries, and in particular, the principle known as the “crumbling skull”.

Chronic Pain and Suffering: Non-Pecuniary General Damages Awards in Cases of Chronic Pain
by James Tomlinson
October 31, 2014

This article explores the recent trend of general damages awards in chronic pain cases in Ontario. It breaks down the groundbreaking case of Degennaro, which remains the high watermark in these cases. It then looks to the recent case law to contextualize Degennaro andestablish a framework for understanding how courts arrive at these awards.


Future Care Costs: Preparation and Mitigation
by Van Krkachovski
October 31, 2014

In recent years there have been a number of developments in the law which have given rise to escalating damage awards. The focus of this paper is on the changes that have occurred with respect to I. Future Care Costs, II. Guardianship and Management Fees; and III. Risk Premiums.

Eyes Wide Shut: The Best Defence is a Good Offence
by Catherine A. Korte
September 24, 2014

With the increasing interconnectivity of businesses to date, information is now exposed to a broad number of threats. Businesses need to ensure there is protection of information in order to prevent loss, unauthorized access or misuse. Businesses must have in place a process of assessing threats and risks to information and the procedures and controls to preserve the information. There are three guiding principles:

Cyber and Privacy Risks: Class Action Exposures
by Howard Borlack
September 24, 2014

Class action litigation arising out of cyber and privacy risks is increasing in Canada. The cases involve a broad range of privacy and cyber risks including lost portable electronic storage devices, uploads to an unsecure website, improper disposal of computer equipment, unauthorized access and dissemination by rogue employees, cybercrime and business practices. More breaches, increased breach notifications, widespread media reports and growing concern about privacy rights have all likely contributed to the increase in class action proceedings. In addition, the recent recognition of a new tort for invasion of privacy by the Ontario Court of Appeal in 2012 has resulted in certification of privacy class actions based on the new tort. This paper will discuss examples of Canadian cyber and privacy cases which have been certified as class actions, cases that have settled, and cases that have been recently commenced as proposed class actions.

Into the Breach: Effective Loss Control
by Alex Robineau
September 24, 2014

Recent advances in technology have brought about a new age in which commercial enterprises have unprecedented access to the information of private individuals. The positive aspects of these advances are noteworthy; from one-click purchasing online, to targeted marketing and metric analysis, data collection has become an indispensable tool in 21st century commerce. However, enhanced efficiency and practicality come with their own set of costs, the most notable being the risk of data breach. Private entities entrusted with confidential information are becoming increasingly scrutinized, and one mishap with this valuable data can have devastating consequences, both for company and consumer.

The following paper will begin by summarizing the types of breaches and their effects. It will then consider legislative requirements for private organizations. Finally, the paper will provide a series of practical steps a company can take to mitigate losses a breach materialize.

Not Anonymous Anymore: Managing Privacy Concerns
by Matthew Dugas
September 24, 2014

A new risk has entered the marketplace. It is called cyber-risk, and it is responsible for the equivalent of millions of dollars in lost revenue, client loyalty, and goodwill. For the purposes of this paper, cyber risk relates to the mishandling of customer information (CI) throughout its acquisition, retention and destruction – what some business analysts refer to as the lifecycle of customer data. The privacy of CI has become paramount as companies continue to struggle with data management and the ensuing loss of consumer confidence.

As a corporate concept, risk is not new. Insurance companies are in the business of risk. It is what they do, and they manage it well. This paper discusses the management of cyber risk and, specifically, how to implement and execute an effective privacy management program (PMP).

Carriage and Control of the Action and Independent Settlement of the Subrogated Claim
by Hillel David
July 29, 2014

We believe that Farrell Estates Ltd. v Canadian Indemnity Co. and Zurich Insurance Co. v Ison T.H. Auto Sales Inc. were incorrectly decided.

At common law, an insurer’s right of subrogation did not arise until the insured had been fully indemnified for both insured and uninsured losses. One consequence was the subsidiary rule that the insurer had no right to control the action against the wrongdoer until that full indemnity had been achieved by the insured. That common law rule has, however, typically been altered by the terms of the insurance policy and by statute.  Continued... 

Mary Carter Agreements
by Michael Kennedy
June 16, 2014

Why would a settling defendant who has paid the plaintiff money ever want to remain in a lawsuit and incur the costs of going to trial? The fact that there are not many good answers to this question is the reason why Mary Carter agreements are rarely used except in high-exposure cases.

For practical purposes, the only two characteristics of a modern Mary Carter agreement are as follows:

Clearing the Path – The Availability of Summary Judgment
June 12, 2014

Summary judgment is a tool provided under the Rules of Civil Procedure (the “Rules”) that allow the court to, on a motion, make a judgment on an action without a full trial. It can be used to determine the entire action or to determine discrete issues within an action. The Rules, as they once were, specified that summary judgment was available where the court was satisfied that there was “no genuine issue for a trial”.

Rule 20 is the rule that governs summary judgment motions. The rule was added with the hopes that, in certain cases, it could serve to avoid expensive and lengthy litigation. It seemed that the bench was reluctant in exercising these broadened powers.

However, the Supreme Court of Canada, in its recent decision of Hryniak v. Mauldin , has fully endorsed the courts employing the full summary judgment rule...

Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37
June 11, 2014
In a recent Supreme Court of Canada (“SCC”) decision, Sable Offshore Energy Inc. v. Ameron International Corp. , the SCC provided clarification pertaining to what may be considered a customary demand from defendants’ counsel during the course of settlement negotiations involving co-defendants who have reached settlement by way of Pierringer Agreements (“settling defendants”). In such contexts, defendants’ counsel have been known to request the terms of settlement, and on occasion, the settlement amount reached. In clear and explicit terms, the SCC in Sable enunciated the extent to which non-settling defendants are entitled to such information; and by extension, the extent to which plaintiff’s counsel may deny such requests.

Paying For The Future: An Analysis Of Large Awards For Future Care Costs
by Catherine A. Korte
June 10, 2014

In recent years, we have seen a tremendous increase in the size of awards that Canadian courts and juries are willing to grant plaintiffs for future cost of care. This head of damages, even prior to these recent cases, was already the largest component of a catastrophically impaired plaintiffs claim. The 2009 case of MacNeil v Bryan1 saw the largest award for future cost of care in Ontario’s history. The Superior Court of Justice in MacNeil made a total award of $18,427,207.20 to the plaintiff, a 15 year old female passenger in a vehicle that was involved in an accident that resulted in catastrophic injuries which included an open full frontal skull fracture with severe brain injuries, amongst other injures. The largest portion of the judgment was $15,158,500.00 awarded for future care costs. With this increase in the monetary compensation being provided to Canadian plaintiffs, special attention must be given to presenting a sound defence against inflated future care awards.