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Bad faith is not a claim governed by the insurance contract
by Michael Kennedy
March 25, 2012

The Ontario Court of Appeal released a decision on March 22, 2012, that deals with an insurer's alleged failure to settle a third party claim in a timely manner. The court decided that this claim for "bad faith" is not a breach of contract, but rather a breach of the independent duty to act in the utmost good faith.

Dundas v. Zurich Canada (2012 ONCA 181) involved a motor vehicle accident in which plaintiffs sued an at-fault motorist for an amount in excess of the insured's policy limits. Read why this case is important to the insurers...

Apportioning Liability in Single-Vehicle Accidents: The Clash between Contributory Negligence, the Driver’s Liability, and a Municipality’s Duty of Care
March 01, 2012

When single-vehicle accidents lead to a fatality, apportioning liability is often a daunting task for courts to undertake. In Morsi v. Fermar Paving Ltd., the Ontario Court of Appeal overturned a trial judge’s decision. This case is significant for the insurance industry as it reaffirms the duties owed by municipalites and outlines the test that courts take when apportioning liability in a single-vehicle accident.

Accessibility for Ontarians with Disabilities Act: How to Comply with the Customer Services Standard
February 29, 2012

The Accessibility for Ontarians with Disabilities Act (AODA) came into force in 2005 with the goal of making Ontario completely accessible for persons with disabilities by January 2025. The AODA mandates the creation of standard development committees in five general areas: Customer Service, Transportation, Employment, Information and Communication and Built Environment.

To date, only the Customer Service Standard has been enacted, with the Accessibility Standards for Customer Service Regulation (CSS) coming into force on January 1, 2008. The CSS sets out the requirements for ensuring that providers of goods and services in Ontario have policies in place that accommodate the needs of customers with disabilities.

Starting on January 1, 2012, almost all businesses operating in Ontario will be required to comply with the CSS. The CSS applies to: 

Recent Decisions: Mediations not occuring within '60 days' deemed to have failed
February 24, 2012

Two recent decisions, one of the Ontario Superior Court, the other an arbitral decision of the Financial Services Commission, have interpreted the “60 day” mediation provisions at section 19 of the Dispute Resolution Practice Code as mandatory. Where mediation does not occur within 60 days, the mediation is deemed to have failed, and the insured person may pursue arbitration or litigation. Read full article including the case summaries...

Case Study - Kusnierz v. Economical - Decision from the Court of Appeal
January 06, 2012

On December 23, 2011, the Ontario Court of Appeal released its decision in Kusnierz v. Economical, 2011 ONCA 823 dealing with the issue of whether a trier of fact is to combine physical and psychological impairment when determining whether a person is “catastrophically impaired” as it relates to "impairment of the whole person" under section 2(1.1)(f) of the Statutory Accident Benefits Schedule (SABS).   Read the full case summary... | Read the Court Decision...

The Interpretation of Contracts: When Courts refuse to use Extrinsic Evidence
January 01, 2012

When litigation arises regarding the proper interpretation of a contract, a common question courts consider is whether extrinsic evidence can be used to vary or modify seemingly unambiguous terms of the binding agreement. SeaWorld Parks & Entertainment LLC v. Marineland of Canada Inc., 2011 ONCA 616, is a recent example of an appellate decision that deals with this issue.

In this case, emotions were heightened and the stakes were high, as the contract in question involved two competitors who entered into an agreement to loan each other marine animals...

Insurance coverage for injuries caused by at-fault uninsured, inadequately insured and unidentified motorists
November 09, 2011

What happens when an at-fault party has no insurance or may be inadequately insured. Or where an unidentified motorist is at-fault (as in the case of a hit-and-run) there may be no practical means of securing compensation for an injury as the at-fault party and his insurer may never be identified...  The system in Ontario has two mechanisms for dealing with such scenarios.

Recent commentaries on the deductibility of collateral benefits in income loss claims
November 09, 2011

Black's Law Dictionary defines the collateral source-rule, also known as the collateral benefits rule, as “the doctrine that if an injured party receives compensation for the injuries from a source independent of the tortfeasor, the payment should not be deducted from the damages that the tortfeasor must pay.”1 Over time, this rule has evolved to allow tortfeasors and/or their insurers to deduct certain amounts already received by the plaintiff in order to ensure that the plaintiff does not receive double recovery.

Videotaping Defence Medical Examinations: An Overview of the Case Law
by Alan S. Drimer
November 09, 2011

In a personal injury action, the defence medical examination (“DME”) is the most potent tool that a defendant has to test and respond to a plaintiff’s allegations. Plaintiff counsel have increasingly been requesting, and receiving, court orders that DMEs be videotaped. This has naturally caused concern among defence counsel.

A year, if a day: What insurers are talking about one year after the introduction of the "New Regs"
November 09, 2011

We have chosen a few key topics that have been repeating themselves in conversations with our clients, adjusters, claims handlers and risk managers over the course of the past year. In the absence of any defining or guiding arbitral or court decisions arising from the 2010 Regulations, it has been an opportunity to think creatively with clients whether discussing what is needed to prove economic loss, or the effect of changes to loss transfer regulations. Following are some thoughts distilled from the past year.

The use of no-fault reports by a tort defendant: Beasley revisited, one year later
by James Tomlinson
November 09, 2011

Since 2010, the Beasley case has been considered and distinguished by further caselaw, including the cases of Grigoroff v. Wawanesa Mutual Insurance Co. 1 and McNeill v. Filthaut 2.  Those cases provide alternate means by which a defendant can rely on the evidence of doctors retained by the no-fault insurers. 

Recent Developments in Loss Transfer
November 09, 2011

In May the Supreme Court of Canada dismissed the application for leave to appeal in Primmum Insurance Company v. Allstate Insurance Company.1 doing so it left standing the Ontario Court of Appeal decision confirming that the loss transfer provisions of the Ontario's Insurance Act will apply to all insurers, who are licensed to sell insurance in Ontario, regardless of where the policy was issued.

Should Psychological Injuries Be Combined With Physical Injuries To Determine Catastrophic Impairment?
November 09, 2011

**Please note that the appeal of this decision is scheduled to be heard on November 16, 2011**

On October 19, 2010, the Honourable Justice Lauwers released his decision in the case of Kusnierz v. The Economical Mutual Insurance Company, 2010 ONSC 5749, addressing the definition of "catastrophic injury". In particular, the Honourable Justice Lauwers was asked to determine whether it is permissible for a trier of fact to assign a percentage rating in respect of Mr. Kusnierz's psychological impairments and to then combine that percentage with the percentage ratings in respect of his physical impairments for the purposes of determining whether Mr. Kusnierz was "catastrophically impaired".

Liability of Vehicle Owners: The Ontario Superior Court of Justice's Decision in Case v. Coseco Insurance Co.
November 09, 2011

The Ontario Superior Court rendered a decision in the case of Case v. Coseco Insurance Co.1 this case reviewed an array of issues, including the law regarding the vicarious liability of a motor vehicle owner for loss or damages sustained when the vehicle was in the possession of another person. The Court also delved into the oft-analyzed issue of consent; specifically, whether an owner of a vehicle can be found vicariously liable for giving consent to have possession of the vehicle, even though it expressly prohibits the other person from operating the vehicle.

Effective Claims Management: The Client – Lawyer Partnership in Subrogation
November 04, 2011

Those lawyers who practice subrogation recognize that handling a subrogation file is very different from handling a defence file and requires a different mindset from practicing other areas of insurance law. Insurance companies are recognizing this as well. 

For many insurers, subrogation has become an integral part of the business of insurance... and as a result they have invested substantial resources in developing subrogation departments and in training recovery specialists.  How do lawyers and adjusters work together?