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Whether a psychological injury in conjunction with a physical injury can be considered catastrophic: Fourniev v. Coachman
December 31, 2009

In Fourniev v. Coachman, the claimant was injured in an MVA on August 11, 2004.  He applied to Coachman Insurance for a determination of catastrophic impairment under the Schedule and Coachman concluded that he was not catastrophically impaired.  The parties applied for Arbitration since they were unable to resolve their dispute through mediation. The issue in dispute was whether the claimant suffered a catastrophic impairment...

General Damages which are exactly $100,000.00 are subject to the statutory deductible: Winckle v. Siodlowski
December 31, 2009

In the recent Ontario decision, Winckle v. Siodlowski, [2009] O.J. No. 4807 (Ont. S.C.J.)., Justice Hockin decided the applicability of the statutory deductible in a case where damages were assessed at exactly $100,000.

Ontario Court of Appeal Sends Strong Message about Mandatory Mediation
December 31, 2009

The Ontario Court of Appeal, in  Keam v. Caddey, 2010 ONCA 565, has awarded plaintiffs $40, 000 in additional costs after an insurer refused to participate in mediation prior to trial. 

The Notional Equivalent of Being Struck by an Automobile: Tucci v. Pugliese
December 31, 2009

The plaintiff, in Tucci v. Pugliese, [2009] O.J. No. 2956, Maria Tucci, was seated in her kitchen when an uninsured motor vehicle driven by the defendant, Giuseppe Pugliese, ran into a wall of her house.  The collision caused a sudden, loud bang and violent shaking of the house, which allegedly caused tremendous shock to the plaintiff and inflicted damage to the home estimated at between $85,000 and $100,000...

Before You Settle - Lockhard v. Quiroz v. C.A.A. Insurance Co. (Ontario)[1]
December 31, 2009

In Lockhard, the plaintiff Lockhard was injured in a single-vehicle accident when her vehicle was being driven by the defendant Quiroz with her consent. At the time of the accident, the plaintiff's vehicle was insured by the third party C.A.A. Insurance Co. (Ontario) ("CAA"). The plaintiff sued the driver for damages.

Accident benefits priority dispute between driver's own insurer and company car's insurer
December 31, 2009

In ACE INA Insurance v. Co-operators General Insurance Co., 2009 CarswellOnt 1668 (Ont. S.C.J.), the claimant initially applied to the driver’s insurer, the Co-operators, for payment of accident benefits. However, the Co-operators took the matter to arbitration and argued that, under the “company car” provision, the claimant was a named insured under the ACE policy which made ACE solely responsible for his accident benefits claim. The arbitrator agreed with the Co-operators and ACE appealed the decision.

Mustapha Revisited: Is the job only half-done?
by Hillel David
December 31, 2009

In the Mustapha decision,1 the Supreme Court of Canada conclusively established the objective nature of the foreseeability test to be applied in the determination of causation in law or, as the issue is sometimes described, remoteness of damage, in claims for psychological injury. What it did not do, however, was set down ground rules for the type and quality of evidence suitable for that determination...

Case Summary: Tridan Developments Ltd. v. Shell Canada Products Ltd.
December 31, 2009

In Tridan Developments Ltd. v. Shell Canada Products Ltd., 2002, CanLII 20789 (ON C.A.), the Court dealt with an appeal from an assessment of damages arising from the contamination of the respondent's Tridan Developments Ltd. property by a gasoline spill from the appellant's Shell Canada Products Ltd. neighbouring gas station.

A Canadian Perspective: Recent Developments and Emerging Issues Concerning the Design Professional
by Howard Borlack
November 30, 2009

A primary concern for the design professional has always been the length of time during which claims can be brought in respect of work performed. In some cases, including those involving latent defects, proceedings are commenced long after the work in issue has been completed.

Unidentified Motorists Claims in Ontario - An Overview
October 31, 2009

Unidentified motorist claims are, at times, challenging to investigate and resolve. Frequently, all the liability eveidence is solely within the knowledge of the plaintiff. There is some comfort to be had in an initial scene investigation by the police, and supporting eveidence arising form the property damage to the vehicle. In the event more than one vehicle was involved in the accident, witness statements are generally supportive of the plaintiff's allegations of a John Doe causing the accident.

Limitation Periods in Canada
September 30, 2009

Limitation periods vary across Canada, but generally range from 1 to 2 years for most causes of actions. The recent trend in Canadian courts has been to strictly enforce limitation periods, making it important for subrogation professionals handling claims in Canada to be mindful of the applicable limitation period and act timely and efficiently to ensure that the opportunity for recovery on potential claims is not lost.

Serial and Independent Concurrent Causes in Insurance Law
by Hillel David
August 31, 2009

Until the decision in C.C.R. Fishing Ltd. v Tomenson Inc., the element of causation in insurance law, particularly in the context of insuring provisions, revolved largely around the concept of proximate cause, meaning the effective and dominant cause of the loss.  Since that decision, the focus has shifted to a consideration of the impact of concurrent causes, both in regard to insuring agreements and exclusion clauses.

An area that has not, however, received the attention it merits is the distinction between serial and independent concurrent causes.

SCC Narrows 'Faulty Design' Exclusion
January 15, 2009

A long-standing insurance dispute over the failure of a massive tunnel boring machine (“TBM”) ended in late November 2008 with a ruling by the Supreme Court of Canada awarding nearly $40 million to the insured. The decision addresses the “faulty or improper design” exclusion common to most “all-risks” property policies.

Driving or operating an automobile without a valid driver's licence is not, in itself, sufficient to ground a subrogated claim
December 31, 2008

The recent Court of Appeal decision in Miller v. Carluccio (2008), 91 O.R. (3d) 638 (C.A.) makes it clear that driving or operating an automobile without a valid driver's licence is not, in itself, sufficient to ground a subrogated claim. Although the case was decided on the issue of coverage, it has important implications for subrogation.

Ontario Court of Appeal confirms that home buyers are not barred by the provisions of the Ontario New Home Warranties Plan Act from pursuing remedies in the courts
December 31, 2008

Until recently, there have been conflicting decisions as to whether the Ontario New Home Warranties Plan Act (the “Act”) constitutes an exclusive statutory scheme for dealing with claims by new home buyers against builders. The Court of Appeal has recently confirmed that home buyers can pursue remedies against builders in the courts.