International Law

Income Replacement Benefits Subject to Garnishment

Posted on November 26, 2008
Mr. Justice John Cavarzan has held, in Lease Truck Inc. v. Serbinek, that a creditor of an insured is entitled to garnishment of income replacement benefits. Once it receives notice of the garnishment, the insurer paying the accident benefits is obliged to pay 20% of the IRB to the creditor...

Insurer Added as Third Party Under Insurance Act Permitted to Examine Insured for Discovery

Posted on November 17, 2008
Corrigendum: Our reference to the Master’s consideration of an Alberta case, Thompson v. McCallum, erroneously contained the following passage: “The insurer suspected that the insured had, in fact, been the driver.” The sentence should read, “The insurer suspected that the plaintiff had, in fact, been the driver...

C.A. Applies “Litigating Finger” Test to Add Defendants After Expiry of Limitation Period

Posted on November 17, 2008
In June, the Court of Appeal laid to rest a dispute that had persisted for more than four years: do courts still have the power to allow defendants to be added to actions after the expiry of the limitation period, on the basis of “special circumstances”? In a pair of rulings–Joseph v...

Owner “Relinquished Dominion and Control” of Car, But Her Consent to Possession by Driver Still Necessary?

Posted on October 23, 2008
In Seegmiller v. Langer, Justice George R. Strathy reviewed the law with respect to when the owner of an automobile will be liable when someone else drives it and is involved in an accident. His reasons contain a useful review of the law concerning consent to possession of a vehicle and make it clear that [...

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Limitation Period for MVA Pecuniary Claims Follows That of Non-pecuniary Claims Says Superior Court

Posted on October 15, 2008
Hard on the heels of the Court of Appeal’s decision in Grewal v. Ivany, released last Friday, Mr. Justice Paul Perell has delivered reasons in Ng v. Beline that address one of the issues considered in Grewal: in personal injury claims arising out of motor vehicle accidents, are claims for pecuniary damages prescribed if not brought [...

C.A. Opens Door to Multiple Limitation Periods in MVA Cases

Posted on October 14, 2008
In Grewal v. Ivany, released last week, the Court of Appeal left open the possibility that a claim for pecuniary damages in an MVA action might be prescribed at the end of two years, even though the discoverability principle has postponed the commencement of the same limitation period for a non-pecuniary damages claim...

C.A. Says “One in Four” Chance of Avoiding Accident Doesn’t Meet Causation Threshold

Posted on October 14, 2008
In a brief but interesting decision handed down today, the Court of Appeal allowed an appeal by a third party who had been found liable at trial. The trial judge had found  had that tortfeasor not been negligent, another tortfeasor’s chances of avoiding an accident would have been increased by a factor of “one in four”...

C.A. Upholds Dismissal of Third Party Claim Against Plaintiff’s Lawyer

Posted on August 20, 2008
[The misdirected link to the reasons in this case has now been repaired, as has the rather embarrassing confusion of John Laskin with Bora Laskin, all courtesy of our eagle-eyed friend (well, he didn't have to be too eagle-eyed on this occasion) David Cheifetz...

Subrogation by Landlord’s Insurer Permitted Despite Tenant’s Rent Being Applied to Landlord’s Insurance Premiums

Posted on August 20, 2008
1044589 Ontario Inc. (Nantucket Business Centre) dealt with the frequently-litigated issue of the right of a landlord’s insurer to advance a subrogated claim against a tenant. Here, Madam Justice Ruth E. Mesbur held that the landlord’s insurer was entitled to proceed with the subrogated claim, even though payment of the premiums had come, in part, [...

Judge Applies “But For” in Slip and Fall Case

Posted on August 06, 2008
In Cartner v. Burlington (City), a recent slip and fall action, Mr. Justice Michael Quigley found for the plaintiffs. In doing so, he applied the “but for” test of causation that was endorsed by the Supreme COurt of Canada in Resurfice v. Hanke...

Judge Says Plaintiff Not Required to Pursue Claim Against Tortfeasor As Condition of Accessing Uninsured Motorist Coverage

Posted on July 30, 2008
Ontario auto insurers might be surprised to learn that the Insurance Act and the standard auto policy do not require persons claiming against the uninsured motorist coverage to pursue anyone whose negligence might have contributed to the plaintiff’s injuries or “to pursue anybody at all; they require that the insured person simply submit the claim to the insurer and the insurer [...

C.A. Adopts Broad Interpretation of “Subcontractor” in CGL “Your Work” Exclusion

Posted on July 18, 2008
This afternoon, the Court of Appeal released its decision in AXA Insurance v. Ani-Wall Concrete Forming. (We previously commented here on the decision of Perell J. from which the appeal was taken.) The issue in the case was whether Ani-Wall was entitled to indemnity from AXA, its liability insurer, in relation to a claim against Ani-Wall [...

Judge Says Offer Made “Without Prejudice” Not An Offer Under Rule 49

Posted on July 18, 2008
Roma Construction (Niagara) Ltd. v. Dykstra Bros. Roofing (1992) Limited was a dispute about roofing deficiencies. The plaintiff had served an offer to settle in a letter that was marked, “Without Prejudice”. The defendant had orally rejected the offer but, as the trial approached, more problems with roofs built by the defendant were discovered, potentially increasing the amount of [...

Divisional Court Reverses Order Striking Jury Notice Where Plaintiff A Muslim

Posted on July 18, 2008
In Kayhan v. Greve, the Divisional Court (Cunningham A.C.J., Stayshyn and Kiteley JJ.) considered whether the fact that the plaintiff in a personal injury action was a Muslim woman of Afghani descent was a sufficient basis to warrant striking the defendant’s jury notice...

Defendants Negligent in Fatal Diving Accident, But Plaintiffs’ Recovery Barred by Release

Posted on July 03, 2008
We have been aware since June 9 of the release of the decision in Isildar v. Kanata Dive Supply, however the reasons have only now become available on CanLII.  They’re 250 pages long though, so perhaps it’s taken CanLII’s editors until now to digest them...

C.A.: “Don’t Let Sleeping Judges Lie”

Posted on June 12, 2008
In Leader Media Productions v. Sentinel Hill Alliance Atlantis Equicap Limited Partnership, the Court of Appeal confronted an issue that a number of lawyers of our acquaintance (including some in our office) have encountered: what to do when the trial judge falls asleep? This case involved an appeal from a decision of Mr...

C.A. Says s. 21(1) of Limitations Act, 2002 No Longer Permits Addition of Parties After Expiry of Limitation Period, Regardless of Whether “Special Circumstances” Exist

Posted on June 12, 2008
Today, the Court of Appeal released two decisions which address the problem of whether a limitation period can be extended on the basis of “special circumstances” when commencing proceedings or adding defendants to existing proceedings. The answer is a qualified “no”...

S.C.C. Upholds Dismissal of “Fly in Bottle” Case, Saying Law of Negligence Is Not Insurance

Posted on May 22, 2008
In a unanimous decision, the Supreme Court of Canada today dismissed the plaintiff’s appeal in Mustapha v. Culligan of Canada Limited and upheld the Ontario Court of Appeal’s dismissal of the action. The plaintiff Mustapha had experienced a severe and very unusual psychological reaction to the sight of the remains of two flies in bottle of [...

Divisional Court Says Standard of Review on Appeal of Master’s Order is Housen v. Nikolaisen’s “Palpable and Overriding Error”

Posted on May 11, 2008
In an important, just-released decision, the Divisional Court has clarified the standard of review on appeals from orders made by masters. The court, composed of Justices Sidney N. Lederman, Katherine E. Swinton and Wailan Low, unanimously held that on an appeal from a master’s order, “the decision will be interfered with only if the master made an [...

Master Haberman Reminds Us That Pleadings Must Be of Material Facts

Posted on May 08, 2008
In Witten v. Bhardwaj, Master Joan Haberman of the Ontario Superior Court has usefully reviewed the law governing pleadings, particularly in motor vehicle negligence cases. Counsel for the plaintiff had moved to strike the following paragraphs from the statement of defence: 14...

First Bill 198 Decision Says Not Much Has Changed

Posted on May 02, 2008
Nissan v. McNamee.pdf Nissan v. McNamee is, so far as we know, the first decision to interpret the “gloss” on the Insurance Act threshold that was enacted by regulation O.Reg. 381/03 (the package of legislative changes commonly referred to as “Bill 198″)...

C.A. Says Trial Judge Applied Wrong Test in Determining Whether Injury “Serious” and “Permanent”

Posted on April 24, 2008
Brak v. Walsh is a short decision of the Court of Appeal (Justices Karen M. Weiler, Michael J. Moldaver and Russell G. Jurianz), on appeal from a ruling by Mr. Justice Gordon Killeen on a threshold motion brought at the end of trial. Justice Killeen had ruled in favour of the defence, that the plaintiff [...

Snow Removal Contractor’s Insurer Ordered to Defend Property Owner Under “Additional Insured” Endorsement

Posted on April 23, 2008
Riocan Real Estate Investment Trust (O&Y Properties Inc.) v. Lombard General Insurance Co. is a very interesting decision, just released, that deals with insurance coverage in “additional insured” situations. The ruling was made by Madam Justice Patricia C...

The “Surowiecki Ballot”: A Tool for Multi-Party Mediations

Posted on April 23, 2008
We came across this interesting article on the website for the International Risk Management Institute, Inc. (”IRMI”). It is entitled “A Tool for Multi-Party Insurance Litigation Mediation with ‘Additional Insureds’” and was written by Jeff Kichaven...

C.A. Dismisses Appeal in “Flying Ladder” Case

Posted on April 22, 2008
In CUMIS General Insurance Company v. 1319273 Ontario Ltd., the Court of Appeal was dealing with a coverage question involving a CGL policy. In the underlying action, the plaintiff motorcyclist had been seriously injured when a ladder flew off a truck and struck him...

Court Says Successful Threshold Defence Not to be Taken Into Account for Purposes of Costs

Posted on April 18, 2008
   In Dennie v. Hamilton, the defendants? solicitor probably thought that the trial had gone pretty well. In this MVA action, the plaintiff had claimed damages of about $1 million. At the end of an 11-day jury trial, in closing argument, counsel for the plaintiff asked the jury to award damages totalling about $405,000...

C.A. Upholds Record Personal Injury Damages Award

Posted on April 18, 2008
Sandhu v. Wellington Place Apartments was one of the largest personal injury damages awards in Canadian history. The Court of Appeal recently dismissed an appeal from the trial decision (other than disallowing most of a $350,000 costs premium). The award at trial was more than $17 million...

C.A. Says Damage to Building?s Foundation Not Part of General Contractor?s ?Work?

Posted on April 18, 2008
In York Region Condominium Corporation No. 772 v. Lombard Canada Ltd., the Court of Appeal rejected the appeal by Lombard from a judgment holding that its CGL policy covered a claim against its insured, a general contractor. The plaintiff condominium corporation had sued the contractor for damage caused to the foundation of the condominium building by [...

Court Refuses Summary Judgment in “Social Host” Claim

Posted on April 18, 2008
In Hamilton v. Kember (and another action), Mr. Justice John F. McGarry was dealing with a defence motion for summary judgment in two personal injury actions. The moving defendants were a young woman and her parents. In 2004, when the young woman (”Chelsie”) was a 17-year old high school student, her parents had agreed to let her [...

Court Ignores Past Collateral Benefits in Evaluating Rule 49 Offer

Posted on April 18, 2008
Bad news for insurers. In Ksiazek v. Newport Leasing Limited, Mr. Justice C. Raymond Harris extended the application of the Court of Appeal’s decision in Rider v. Dydyk and ruled that a defendant’s offer to settle should be compared with the gross damages awarded to the plaintiff, with no reduction for statutory accident benefits that [...

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