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Key privacy cases for consideration: Hot Topics in Privacy Law - 5 of 5
January 30, 2014

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 “”. 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.

Alberta's Personal Information Protection Act Declared Unconstitutional
December 13, 2013

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.

Recent Ontario Court of Appeal Decision: All Defence Costs are not Created Equally
by Jennifer E. Kelly
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.

Recent FSCO Appeal Decision: Belair Insurance Company Inc. and Lenworth Scarlett
by Matthew Dugas
December 11, 2013
FSCO released the appeal decision in Belair Insurance Co. Inc. and Lenworth Scarlett. The decision by Director's Delegate David Evans overturned the preliminary issue hearing decision by Arbitrator Wilson, which found that the claimant was not subject to the minor injury guideline (the MIG).

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.

Recent Court Decisions: Kruger Products Limited v. First Choice Logistics Inc. et al.
November 27, 2013

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.

A Defence Lawyer's Guide to Investigating Modern Insurance Fraud
by Van Krkachovski
November 06, 2013

Due to the lack of significant institutional measures, it often falls to insurers and defence counsel to investigate instances of fraud on their own. While the bar is not overly familiar with confronting insurance fraud on a macro-level, defence lawyers can certainly identify trends and become experienced with insurance fraud through their work at the case level. This paper details cause for suspicion, response, and how to prove fraud.

Branco v American Home Assurance Company, 2013 SKQB 98
October 11, 2013

This case makes it abundantly clear that insurance companies must treat their insureds fairly. It is a recognized principle of law that many contracts of insurance will be considered peace of mind contracts. If a contract of insurance is considered to be a peace of mind contract, then a plaintiff has the right to sue for damages related to mental distress. If an insurer unfairly denies benefits, unduly lengthens the claim process or causes an insured distress unjustly, this may trigger a significant aggravated damage award. Further, numerous delays and unjustified denial of benefits, could also lead a court to conclude that an insurer has breached their duty of good faith and fair dealing with their insured. If a court finds this to be the case, punitive damages may be awarded on top of the damages for mental distress. Read details...

First FSCO Decision on the Minor Injury Guideline
by Matthew Dugas
October 09, 2013

A recent FSCO decision has found that a claimant is not precluded from claiming housekeeping, attendant care as well as medical and rehabilitation expenses beyond the $3,500 limit within the Minor Injury Guideline. In Lenworth Scarlett and Belair Insurance Company Inc. (FSCO A12-001079), Mr. Scarlett was a passenger in a vehicle involved in a motor vehicle accident and applied for statutory accident benefits. His disability certificate indicated that he sustained various sprains and strains to the joints and ligaments of the lumbar and cervical spine as well as headaches and acute stress reaction.... Arbitrator John Wilson notes...

Unraveling the Mystery of Priority Disputes
October 07, 2013

Since 1995, and the enactment of Ontario Regulation 283/95—Disputes Between Insurers (the “Regulation”), insurers have been obliged to continue payment of Statutory Accident Benefits (SABs) to injured persons even where entitlement to these benefits is disputed. However, priority disputes also present insurers with an opportunity to shift payment of SABs, which may end up saving a savvy insurer a significant amount of money...

The Top 5 Tort Cases of the Preceding Year and Ever Increasing Damage Awards and the Future Care Case Law
by Martin Smith
September 13, 2013

There have been a number of interesting tort decisions over the last twelve months, some providing much needed clarification to the existing common law and some creating brand new law. As has been a trend in the past few years, damage awards have also seen an increase, primarily as a result of rising future care costs damages.

This paper examines five interesting tort decisions that were released over the course of the past year and have received substantial attention. It also examines the state of increasing future care costs awards and provides some helpful case law to consider when facing a significant future care costs claim.

Executive Officers are Employees: The "Gap" Between Workers' Compensation and General Liability Policies
September 12, 2013

Insurance brokers must be cautious when dealing with corporations that opt their executive officers out of Ontario's workers' compensation scheme. A failure to appreciate the relationship between statutory and private coverage risks inadvertent exposure to significant liability.

Unfortunately for one insurance brokerage, this is exactly what happened in the recent Ontario Court of Appeal decision of Sam's Auto Wrecking Co Ltd (Wentworth Metal) v Lombard General Insurance Company of Canada. The unforeseen gap between workers' compensation coverage and general liability insurance coverage ended up costing Dalton Timmis Insurance Group ("Dalton Timmis") hundreds of thousands of dollars.

Sports Recreation & Sports Liability: Litigating Cases Involving Injuries to Minors
by James Tomlinson
September 11, 2013

Unintentional injuries are the leading cause of death among Canadian minors. Between 1990 and 2007, over 1.6 million children and youth received emergency room treatment for unintentional injuries at hospitals across Canada. Sports and other recreational activities are common precipitating events of serious injury among minors. The ramifications of these injuries to a child can be profound, particularly in cases involving even “mild” trauma to the brain. In the context of litigation, the costs associated with the loss of future earnings and future care can be significant, with damages in some cases being assessed in the millions.

While the spectre of eight figure exposure may seem daunting enough, several factors conspire to make cases involving injuries to minors particularly difficult to navigate from the defence perspective. With this in mind, the following paper will address common legal and strategic elements to be considered when attempting to settle cases involving injuries to minors.

The Unpredictability of Children and Sporting Goods: Product Liability and the Child Plaintiff
September 11, 2013

Product liability claims by minor plaintiffs with respect to injuries sustained while using sports equipment are very prevalent. These claims can range from sports equipment malfunctioning to equipment failing to perform as expected.

This paper will first discuss to whom the manufacturer owes a duty of care, and what a plaintiff must establish to demonstrate that the defendant owed them a duty of care. The paper will then discuss to what standard of care the defendant will be held, and what evidence a plaintiff must lead to show that the defendant fell below the standard. This paper will discuss the difference between child and adult plaintiffs, and the standard of reasonableness the child plaintiff is held to. This paper will also discuss recent cases involving child plaintiffs and product liability and their trends and implications for manufacturers. Finally, the paper will detail available defences, as well as risk management strategies for manufacturers.

Kids May Be Kids, but Adults Oversee: The Liability of Adult Supervisors for Child Injuries
by James Tomlinson
September 11, 2013

The general test for determining whether one person has acted negligently towards another in Canada is contained in the dual concepts of duty of care and standard of care – that is, the hurt party has to show that the party they think is responsible for their harm was under a legal obligation to protect them from or prevent that harm. The Supreme Court of Canada recently looked at the different categories of duty of care in its decision Childs v Desormeaux. The language the court used to describe duty of care is as follows: “A positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity.”1 Once that link has been established, the standard of care kicks in, dictating how much the individual is required to step in and prevent an injury from occurring.

Where does this leave adult supervisors when the children they are overseeing hurt themselves? This paper will focus on the liability different types of supervisors – teachers, coaches, referees, even parents – may face when supervising children, and how they can effectively protect themselves and the children they are caring for from liability and harm.

Mother May I? The Effectiveness of Waivers and Permission Forms in Cases of Injured Minor Plaintiffs
by James Tomlinson
September 11, 2013

The emphasis on holistic learning has led to an increase in field trips and physical activities that are both further from students’ schools and are inherently more dangerous than traditional school activities. This has greatly increased the potential for student accidents and injuries. Many schools attempt to shield themselves from liability by forcing students, and students’ parents, to sign permission forms and/or waivers of liability. However, the content of these forms, and the difference in their purposes, has a tremendous impact on whether or not the Courts will accept these documents as a barrier to potential liability.