May 06, 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 Bryan15 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.
In a recent Supreme Court of Canada 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.
Is an insurer precluded from pursuing a subrogated action if the insured settles its uninsured loss with the third party and signs a general release? This question was answered by the Ontario court in Busgos v. Khamis, a decision of which subrogating insurers should be aware.
February 27, 2014
Is installing a telematics device in an insured's vehicle an unreasonable invasion of privacy? Two lawyers debate the issues...
Catherine Korte, MB's Chair of Accident Benefits, has been making submissions on behalf of the Ontario Bar Association, Toronto Medico-Legal Society and various Insurers to Justice Cunningham regarding proposed changes to the Automobile Dispute Resolution Process in Ontario. Justice Cunningham’s final report has now been released.
Attached is the Ontario Automobile Insurance Dispute Resolution System final review of the Honourable Justice Cunningham. His final recommendations include:
- A new DRS should be established as a public sector administrative tribunal reporting to the responsible minister.
- Arbitrators should be appointed by order of council on the recommendation of the responsible minister.
- Mediation services should be enhanced and continue to be a mandatory step in the DRS, but now as part of a settlement meeting.
- The option of initiating a court proceeding instead of arbitration should be eliminated when the parties are unable to reach a settlement.
- The settlement of future medical and rehabilitation benefits should be prohibited until two years after the date of the accident.
- Appeals of arbitration hearing decisions should be heard by a single judge of the Ontario Superior Court of Justice on a question of law.
Click below to access the report.
Tucked away in the middle of the Rules of the Small Claims Court is a relatively unknown and underused provision which allows a settlement conference judge to dispose of small value claims at the conclusion of the settlement conference.
Ontario does not have a single overarching privacy and access law. Rather, it is subject to several different pieces of legislation that apply depending on the nature of the organization involved and the type of information that is being collected, used, or disclosed. The principal privacy legislation of interest to lawyers in Ontario is PIPEDA.
This article describes key concepts of PIPEDA including the application of PIPEDA, what personal information is, the privacy priniciples of PIPEDA, privacy issues in the context of litigation, employee personal information, international issues and using foreign service providers.
The facts of Jones v Tsige are fairly straightforward: the plaintiff and the defendant both worked for the Bank of Montreal, albeit at different branches. They also were, at one time or another, involved with the same man; the plaintiff had been married to him previously, while the defendant was common law married to him at the time of the incident. Despite these intersecting facts, the plaintiff and the defendant did not know each other personally.
The defendant, making use of her access as an employee of the bank, accessed the plaintiff's banking information some 174 times.
Canada's Anti-Spam Legislation (“CASL”) will finally be coming into force on July 1, 2014. CASL has been law for over three years now, but there have been various amendments and changes made to it over that time period. Here we will take a brief look at the main rules and exceptions under CASL, but it ought to be said up-front that CASL is one of the most stringent and restrictive set of anti-spam laws enacted globally.
Business owners ought to take special note of the CASL requirements, as the consequences of infringement can be steep (up to $1 million in fines for individuals, and $10 million for corporations — and once the private right of action provisions come into force, each offending communication can be worth $200 to the recipient in damages).
The Supreme Court of Canada (“SCC”) unanimously found Alberta's Personal Information Protection Act, S.A. 2003, c. P 6.5 ("PIPA") to be unconstitutional as it does not strike an appropriate balance between an individual's right to control the collection, use, and disclosure of its personal information and a union's right to freedom of expression.
In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, employees of the Palace Casino at West Edmonton Mall conducted a lawful strike in 2006 which lasted 305 days. The United Food and Commercial Workers, Local 401 representing the workers (the “Union”) and a security company hired by the employer video-taped and photographed the picketers at the Casino's entrance. The Union posted signs stating that images of persons crossing the picket line may be posted on “www.casinoscabs.ca”. Several people who were filmed crossing the picket line complained to the Alberta Information and Privacy Commissioner (the “Commissioner”) under PIPA, alleging that the Union infringed their privacy rights by collecting, using and disclosing their personal information without their consent.
The Supreme Court of Canada (“SCC”) unanimously found Alberta's Personal Information Protection Act, S.A. 2003, c. P 6.5 ("PIPA") to be unconstitutional as it does not strike an appropriate balance between an individual's right to control the collection, use, and disclosure of its personal information and a union's right to freedom of expression.
December 13, 2013
In ACE INA Insurance v. Associated Electric, the Ontario Court of Appeal upheld an Ontario Superior Court of Justice decision which held that unless prescribed otherwise by statute, an excess insurer is only required to contribute to defence costs if it has a duty to defend or if such contribution is expressly stated in the policy.
The court looked at the doctrine of equitable contribution and its application to an excess policy which contained no duty to defend.
December 11, 2013
The appeal sticks to evaluating individual points in Arbitrator Wilson's decision, and does not offer significant guidance on whether the MIG applies to individual claimants.
Read why this appeal decision is nevertheless favourable to insurers.
When a landlord assumes a contractual obligation to obtain insurance on a property, the landlord may be barred from pursuing a subrogated claim against the tenant for loss or damage caused by the tenant. This is not a new legal principle. In a trilogy of cases from the 1970s, the Supreme Court of Canada held that a landlord, by agreeing to obtain such insurance, assumes the risk of loss or damage to that property even if the tenant was negligent.
