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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?


Effective Claims Management: The role of the crisis communication strategy
November 04, 2011

Crisis communication is a strategic component of an organization's overall operational response to a crisis. The significance of the communication plan, in the over all crisis management model, is many times under estimated. During a crisis, effective messaging to shareholders, stakeholders and the public, can be determinative as to how an organization's reputation, ie. it's brand and image, will be maintained. In addition, any crisis represents the potential for findings of liability down the road. As such, it is crucial to ensure that the messages of today never become the evidence of tomorrow, which will be used against the insured at a trial in the future.


Effective Claims Management: Managing the Legal Journey with Your Counsel
November 04, 2011

Today, preparation for and seeking opportunities to avoid litigation prior to the loss even occurring is an integral part of the claim management process. It has become more complex not only because insurers and their insureds are more educated but they also, separately and together, want to be involved and understand the litigation process. It is also important to highlight that insureds, in particular, have developed higher expectations not only of the information they receive, but also the service they receive and the overall experience from the time they report the claim until resolution.


Effective Claims Management: Ambiguous Policy Wordings and Court Interpretations
November 04, 2011

Insurance policies must be interpreted in accordance with the well-established rules of policy interpretation... ambiguities in insurance contracts are to be construed against the insurer. This paper will give you tips and samples on watching for industry jargon, fancy grammar, consistency and broad terms.


Enforcing Letters Rogatory: A warning to connected businesses operating in multiple jurisdictions
October 31, 2011

Courts are sensitive to the increasingly international nature of business and the inextricable links between connected corporate entities. International business entities should be aware of this decision and note the liberal approach to requests for judicial assistance. This case is significant because it confirms the broad powers of our courts to enforce letters rogatory and compel corporations within Ontario to produce and appear in U.S. proceedings, notwithstanding that the corporation is not a party the proceedings. Details...


Case Study: Zurich Insurance Company Ltd. v Ison T.H. Auto Sales Inc
October 27, 2011

The Ontario Court of Appeal recently released this important decision on the position of an insurer whose subrogated claim is combined, as it must be, with the insured's uninsured loss claim in a single action.

The underlying action arose out of a fire and explosion as a result of which numerous new cars belonging to the insured, an automobile dealer, were damaged.

The matter was somewhat complicated by the fact that a class action had been commenced as a result of the loss event, and the insured had opted out of that class action, although the separate action commenced by the insured was ordered to be tried together with the class action and the two actions were being jointly case-managed.