Saskatchewan Court of Appeal confirms proof of a material change in risk requires strong evidentiary foundation
Introduction Wynward Insurance Group v Smith Building and Development Ltd, 2023 SKCA 57 highlights significant considerations for insurers who are considering denying claims on the basis of an insured’s failure to disclose a material change in risk. Background facts The […]
Alberta Court of Appeal reduces damage award to account for insured’s actual loss
Introduction In Shelter Canadian Properties Limited v Aviva Insurance Company of Canada, 2023 ABCA 74, the Alberta Court of Appeal reduced an indemnity payment for loss of rental income to account for the increase in the net rental income of […]
British Columbia Court of Appeal upholds implied undertaking of confidentiality
Introduction In the recent case of Association of Professional Engineers and Geoscientists of the Province of British Columbia v. Engineer X, 2023 BCCA 211, the British Columbia Court of Appeal considered whether the implied undertaking should be lifted to allow […]
Ontario Court of Appeal affirms that the “true nature of a claim” will impact duty to defend
Introduction In Butterfield v Intact Insurance Company, 2023 ONCA 246, the Ontario Court of Appeal affirmed that Intact Insurance Company (“Intact”) did not have a duty to defend Mr. Butterfield (the “Appellant”) against a negligence claim because the policy’s intentional […]
Litigation privilege: A recent review by the Superior Court of Quebec
In insurance matters, litigation privilege is a frequent principle of law raised by litigators to deny the disclosure of documents. On February 2, 2023, Justice Daniel Dumais of the Superior Court of Quebec adjudicated an objection based on this particular […]
Court of Appeal looks to true nature of claim in duty to defend application
The Court of Appeal’s recent decision in Ontario v St. Paul Fire and Marine Insurance Company (2023 ONCA 173) revisits the duty to defend that all underwriters should be aware of. When analysing pleadings and the terms of a policy, […]
How “Guaranteed” is Guaranteed Replacement Cost? The Ontario Superior Court weighs in
One of the most important decisions homeowners have to make in purchasing their insurance is whether to seek “Guaranteed Replacement Cost” or “GRC”. GRC clauses act to ensure that a building is completely replaced even if the cost of that […]
BC Supreme Court determines whether a third-party claim can be commenced by way of a separate notice of civil claim
Introduction In Prime Time (Abby Lane) Inc. v. DGBK Architects, 2022 BCSC 1799 (“Prime Time”), the BC Supreme Court answered the long-standing question of whether it is appropriate to commence a third-party claim by way of a separate notice of […]
British Columbia Court of Appeal clarifies the test for civil fraud in the insurance law context
Introduction In Singh v Insurance Corporation of British Columbia, 2022 BCCA 320, the BC Court of Appeal reaffirmed the test for civil fraud in the insurance law context. Specifically, the court dismissed the defendants’ appeal, in which they argued that […]
Two insurers, a mutual policyholder, and the duty to defend
Ontario Court of Appeal upholds Application Judge’s treatment of Property Report Evidence In AIG Insurance Company of Canada (“AIG”) v Lloyd’s Underwriters (“Lloyd’s”) (2022 ONCA 699), the Ontario Court of Appeal was tasked with answering “whether two insurers have a […]
BC Supreme Court considers the Insurance Act’s dispute resolution process
Introduction In King v. Aviva Insurance Company of Canada, 2022 BCSC 973, the BC Supreme Court (the “Court”) held that Ms. Paula King (the “Insured”) could not opt out of the mandatory dispute resolution process (“DRP”) she had commenced pursuant […]
British Columbia Court of Appeal comments on the test for want for prosecution applications
Introduction The Court of Appeal for British Columbia (the “Court of Appeal”), in Drennan v Smith, 2022 BCCA 86, provided significant commentary on want for prosecution applications and warned of possible changes to come. Mr. Tyler Drennan (the “Appellant”) appealed […]
British Columbia Court of Appeal clarifies indivisibility analysis
Introduction The Court of Appeal for British Columbia (the “Court of Appeal”), in Neufeldt v. Insurance Corporation of British Columbia, 2021 BCCA 327, recently provided significant commentary on the important yet difficult issue of indivisible injuries. Insurance Corporation of British […]
Case Commentary: Nelson (City) v. Marchi, 2021 SCC 41 – The Supreme Court of Canada clarifies the distinction between core and non-core policy decisions
Introduction In the recent decision of Nelson (City) v. Marchi, the Supreme Court of Canada clarified the law with respect to what constitutes a “core policy decision” rendering a government or public authority immune from liability. In this particular case, […]
The Supreme Court of Canada addresses promissory estoppel in the insurance context
Introduction In the recent decision of Trial Lawyers Association of British Columbia v Royal & Sun Alliance Insurance Company of Canada, the Supreme Court of Canada considered the application of the doctrine of promissory estoppel in the context of a […]
A foul ball to the head: No negligence established under the Occupier’s Liability Act
Introduction The British Columbia Court of Appeal, in Rivers v North Vancouver (District), 2021 BCCA 407, considered a negligence claim brought pursuant to the common law and British Columbia’s Occupiers Liability Act (the “Act”). In doing so, they clarified what […]
Henderson v. Northbridge General Insurance Corporation, 2021 BCSC 1841: The duty to defend claims alleging intentional acts
Introduction Recently, in the context of an alleged “shaken baby” claim, the Supreme Court of British Columbia considered whether an insurer had a duty to defend a claim against its insured arising from allegations framed in both negligence and assault. […]
Changes in “occupants” found not to be a material change in risk for the purpose of voiding a home insurance policy
The British Columbia Supreme Court in Dubroy v. Canadian Northern Shield Insurance Co., 2021 BCSC 352 held that a home insurance policy was not rendered void because there was no material change in risk arising from a change in occupants. […]
Court of Québec orders insurance policy disclosure in dispute
Twenty-five years ago, Louis Champagne radiomutuel inc.[1] established the right to obtain a copy of the opposing party’s insurance policy in order to involve its insurer in the claim. This right was confirmed in a recent Court of Québec judgment.[2] […]
Supreme Court of Canada to consider dichotomy between policy and operational decisions in negligence claims
The Supreme Court of Canada has recently granted leave to appeal the decision of the B.C. Court of Appeal in Marchi v Nelson (City of), 2020 BCCA 1. The key question on appeal is whether certain acts or omissions on […]
Leave to appeal duty to defend issues denied by Supreme Court of Canada
Recently, the Supreme Court of Canada denied leave to appeal decisions of the Alberta Court of Appeal and the Ontario Court of Appeal, respectively, regarding the duty to defend. As a result, the appellate decisions stand and are discussed below. […]
Accountability for the section 7(4) accounting report: When is it ‘reasonable and necessary’?
The requirement under section 7(4) of the Ontario Statutory Accident Benefits Schedule [1] for insurers to fund accounting reports on behalf of insured persons is a reasonable one. To be eligible for funding by the insurer, the reports must be: […]
British Columbia Court of Appeal confirms a strict two-year limitation period to commence third-party claims
Introduction The Court of Appeal in Sohal v. Lezama, 2021 BCCA 40 (“Sohal”) recently held that a court does not have the discretion to permit a third-party notice for contribution and indemnity (“contribution”) if the limitation period has expired under […]
Superior Court of Quebec dismisses authorization to institute a class action pursuant to the dispute resolution provision of insurance policy
The COVID-19 pandemic has resulted in litigation, particularly in the context of class actions. In 2020, applications for authorization to commence class actions have been made notably against nursing homes,1 insurers2 and airline companies.3 In 9369-1426 Québec inc. (Restaurant Bâton […]
UK Supreme Court judgment on COVID-19 business interruption insurance test case
Today, the UK Supreme Court handed down its judgment in the COVID-19 business interruption insurance test case of The Financial Conduct Authority v Arch and Others. This judgment was the result of a “leap frog” appeal whereby the FCA and certain insurers […]
The latest in insurance bad faith claims
A bad faith claim against an insurer may result in liability beyond the policy limit. Where a plaintiff establishes that its insurer has responded to a claim in a manner that is offensive, reprehensible, or high-handed, the insurer may be […]
The FCA test case: Assessing its impact on COVID-19 business interruption coverage in Canada
The High Court of England and Wales released its decision in a much-anticipated test case on September 15, 2020. The case was brought by the United Kingdom’s Financial Conduct Authority (the “FCA”). The FCA brought the proceeding against a number […]
Case commentary: Issuance of building permit for construction of residential/commercial strata “unreasonable” without involvement of architect
Introduction In the recent case of Architectural Institute of British Columbia v. Langford (City), the British Columbia Supreme Court conducted a judicial review of the issuance of a building permit for the construction of a residential/commercial strata complex in the […]
An Apt Decision: Ontario Court of Appeal Overturns Limitation Period Ruling
Introduction A recent Ontario Court of Appeal decision determined that a personal injury claim arising from the alleged disrepair of a residential rental unit is not constrained by the one-year limitation period prescribed by the Residential Tenancies Act, 2006[1] (“RTA”). […]
Employees Who Rent Vehicles for Work: Liability Insurance Implications When Accidents Occur
The frequency with which employees rent vehicles for employment purposes is a common occurrence. Amendments to certain legislation in Ontario introduced a priority scheme for liability coverage, and corresponding changes to the standard Ontario Automobile Policy reconfigured personal coverage to […]
Containing the Spread of Fire(wall)
Implementation of internal firewalls between accident benefits and bodily injury departments has been a struggle for automobile insurers since the publication of the Insurance Bureau of Canada’s Bulletin 184, called “Internal Transfer of Information from Accident Benefits Adjuster to Tort […]
The duty to defend in the face of exclusions: Allegations of intentional acts and the use or operation of vehicles
On May 7, 2020, the Supreme Court of Canada denied leave to appeal from a notable decision of the Ontario Court of Appeal on an insurer’s duty to defend. In Pembridge Insurance Company of Canada v. Chu,[1] the defendant, Fabrizi, […]
The scope and interpretation of faulty workmanship exclusions in multi-peril policies
In Condominium Corporation No. 9312374 v Aviva Insurance Company of Canada, 2020 ABCA 166, the appellant condominium corporation (the “Corporation”), had engaged a contractor and an engineer to provide rehabilitation and maintenance work with respect to the parkade area in […]
The effect of BC Ferries settlement agreements on apportionment of liability and damages at trial
A recent case from the British Columbia Supreme Court dealt with the procedure for apportionment of losses after a BC Ferries Settlement had been reached between some of the defendants. In Conarroe v Tallack, the claim arose out of two […]
COVID-19 and accidental death coverage
No one intends to contract COVID-19. In fact, most rational people intend to do just the opposite. What if, despite your best intentions/precautions, you contract COVID-19 by accident? What if this unfortunate event results in your death? Is there a […]
Case Commentary: Provost v. Dueck Downtown Chevrolet Buick GMC Limited, 2020 BCCA 86
A recent case issued by the British Columbia Court of Appeal provides guidance regarding the duty of care owed by business owners and confirmed the principles with respect to the determination of a novel duty of care. A GM Sierra […]
Leave to appeal to Supreme Court of Canada on issue of insurer’s potential waiver of rights
An appeal of a decision from the Ontario Court of Appeal, Bradfield v Royal Sun Alliance Insurance Company of Canada, 2019 ONCA 800, has recently been granted leave to appeal to the Supreme Court of Canada. The basis of the […]
Validity of builder lien claims
JVD Installations Inc. v. Skookum Creek Power Partnership, 2020 BCSC 374 On March 13, 2020, the Supreme Court of British Columbia released its decision in JVD Installations Inc. v. Skookum Creek Power Partnership, 2020 BCSC 374. This decision discussed and […]
Negotiating terms beyond standard forms
A recent decision of the British Columbia Supreme Court (Surespan Structures Ltd. v. Lloyds Underwriters, 2020 BCSC 27) confirms that when insurance companies negotiate the terms of a policy beyond their standard forms or precedents, they must beware of failing to […]
Clarity in Claims against Adjusters in their Personal Capacity
A recent decision of Justice Perell (Burns v. RBC Life Insurance Co., 2019 ONSC 6977) provides some welcome clarity on the issues of whether insurance adjusters owe a duty of good faith to an insured independent of any duty owed […]
Pre-judgment Interest on General Damages
In 2015 the Ontario Insurance Act, R.S.O. 1990 c.C.18 was amended to provide that Rule 53.10 of the Rules of Civil Procedure, R.R.O. 1990, which calls for pre-judgment interest at 5%, no longer applies to cases involving car accidents. The […]
The Worth of “Diminished Value” Claims in Ontario – Update
In past blogs,[1] my colleague, Patricia Forte, has tracked the case law on the state of “diminished value” claims in Ontario. A recent Superior Court case, Zheng v. Certas Home and Auto Insurance Co.,[2] provides further insight as to the […]
Demetriou v. AIG: The Burden of Proof and the Requirement to Plead Fraud
Mr. Demetriou had a family heirloom ring appraised. It was worth $550,000. He insured the ring against theft with AIG Insurance Company of Canada (“AIG”) in July 2015, and was to pay an annual premium of over $10,000. A few […]
The Deduction of Accident Benefits in Tort Actions
In the 2018 decisions of Cadieux v. Clouthier and Carroll v. McEwen, the Ontario Court of Appeal clarified the manner in which accident benefits are to be deducted from awards of tort damages. In the past, there were two approaches. […]
Who is the Lessee? Whoever the Lessor Can Sue to Enforce the Lease – An Update on Insurer Priority of Third Party Claims Involving Lessors
Who can a lessor sue to enforce a lease? In a recent decision on priority of payment in a motor vehicle tort action, the Ontario Superior Court of Justice resolved the priority dispute by answering this question. In Aviva Insurance […]
Who can be Present at an Examination for Discovery?
Answering the question of who should be allowed to attend at an examination for discovery involves an exercise in balancing two competing interests: the interest of upholding the privacy of examinations as a pre-trial discovery process relevant to the parties’ […]
Where a Plaintiff is Ordinarily Resident Outside of Ontario, Under What Circumstances will a Court Order Security for Costs?
General Legal Principles Rule 56.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that the Court, on motion by a defendant in a proceeding, may make an order for security for costs where it appears that the […]
Clarifying the “Trilogy” and the Covenant to Insure: Royal Host GP Inc. v. 1842259 Ontario Ltd.
Introduction In Royal Host GP Inc. v. 1842259 Ontario Ltd., 2018 ONCA 467, the Ontario Court of Appeal reversed the motion judge’s decision, clarified what is known as the “Trilogy” and allowed a landlord to advance a subrogated action against […]
Impact of Social Media Evidence in Litigation
It is undeniable that social media has transformed the way individuals interact with one another. In 2018, 64% of Canadians had a social media profile, 50% of whom were registered on more than one social media site.[1] Ontario has the […]
The Not so Reasonable Cost of Medical Documents
One of the biggest pet peeves I have working in this industry is receiving, in my opinion, ludicrous requests from practitioners relating to the cost of obtaining medical records in their custody. For example, just the other day I received a […]
WAGG Motions – don’t forget the audio recordings
Wagg motions refer to motions for the production of police or Crown documents. They are referred to as Wagg motions because of the case of D.P. v. Wagg (“Wagg”), which sets out the process to be followed when seeking these […]
Automatic Vicarious Liability of Owner Only Applies to Accidents on Highways
One of the first lessons that any student of personal injury law learns is that an owner of a motor vehicle is vicariously liable for the negligence of the vehicle’s operator. This vicarious liability is imposed by s. 192(2) of […]
Court of Appeal: PJI/Deductible/Costs Changes are Retroactive, SABS fully deductible and Punitive Damages not Appropriate
On September 19th, 2017, the Ontario Court of Appeal released it’s much anticipated decision on whether or not changes to how pre-judgment interest is calculated would be a retroactive change or not. The Court also adjudicated upon a number of […]
Mental Injury and Negligence Law – Recognized Psychiatric Illness Not Required
In the recent decision of Saadati v. Moorhead, 2017 SCC 28 (CanLII), the Supreme Court of Canada rejected the argument that claims for mental injury are subject to a different test than claims for physical injury, holding that the law […]
Third-Party Claim: Is It Out Of Time?
Third party proceedings can be an efficient, and cost-effective way of adding parties and any related claims arising from the same set of facts. Rule 29.02 provides the time constraints for when third party claims must be issued: within ten […]
Ontario SABs Insurers Do Not Have to Justify EUO Reason
The Ontario Court of Appeal, in Aviva Insurance Company of Canada v. McKeown, 2017 ONCA 563 (CanLII) determined an insurer is not required to provide a “justification” to compel an applicant for benefits to attend an examination under oath pursuant […]
Disclosure of Expert Retainer Letters
The issue of whether a party must produce a lawyer’s ‘instructional letter’ when retaining an expert was considered by the Ontario Superior Court in Nikolakakos v. Hoque, 2015 ONSC 4738. This case involved an action for damages arising from personal […]
Insurer can’t sue “Your and You”
The Ontario Superior Court has released a subrogation decision dealing with two interesting issues: Assessing a defendant’s negligence and the ability of an insurer to subrogate against its own unnamed insured. In Rochon v. Rochon, the defendant was the plaintiffs’ […]
What is a “Self-propelled Implement of Husbandry”?
There is a new Superior Court decision answering the question of whether a particular uninsured all-terrain vehicle was required to be insured at the time of a motor vehicle accident. Although much of the decision is based on the facts […]
Transfer to Small Claims Court? I Don’t Think So…
In a recent decision in a personal injury action, a Superior Court Judge denied a plaintiff’s motion to transfer her action to Small Claims Court despite her assertion that her damages would properly be assessed under the $25,000 limit of […]
Sidewalks, Driveway Aprons & Pedestrians
You have all been faced with the situation as to who is responsible for maintenance of sidewalks adjacent to an insured’s property and the portion of the driveway that is beyond the sidewalk adjacent to the municipality’s roadway. The caselaw […]
Destruction of Evidence
The destruction of evidence, either intentional or through negligence, impedes the ability of the trier of fact to find the truth and reach a just determination of the issues. The destruction of evidence during ongoing or contemplated litigation, intentional or […]
Court of Appeal Rules that Contractual Limitation Period within Insurance Policy Overrides the Statutory Two-Year Limitation Period
The Ontario Court of Appeal has affirmed that a contractual condition within an insurance contract imposing a limitation period of 1 year will override the statutory two-year limitation period found within the Limitations Act, 2002. In Daverne v. John Switzer […]
The Worth of “Diminished Value” Claims in Ontario
Introduction The claim goes by many names: “diminished value”, “diminution in value” and “accelerated depreciation”. The terms are interchangeably used to describe the economic loss of a property’s value as a result of the property having been damaged.[1] The concept […]
A Defendant By Any Other Name: Of Limitation Periods, John Doe, and Misnomer
Having read the reasons for decision in Stechyshyn v. Domljanovic, 2015 ONCA 889 you would be forgiven for wondering whether the panel of the Court of Appeal had taken in a showing of Romeo and Juliet during their deliberations. The […]
Public Transit Motor Vehicle Accidents about to Become Non-Accidents
UPDATE — Bill 173 received Royal Assent on May 12, 2011. Accordingly, these important changes to the Insurance Act are now in effect. On March 29, 2011, the Ontario Legislature unveiled its pre-election budget, in Bill 173, otherwise known as the […]
Court Finds Coverage under OPCF 44R
This week’s Ontario Reports contained an interesting coverage decision involving Ontario’s Family Protection Endorsement and claims against the Motor Vehicle Accident Claims Fund. In Graham v. Superintendent of Financial Services Commission of Ontario (2010 ONSC 7129), Christine Graham was riding her bicycle […]
Insureds Claiming “Diminished Value” Damages under Ontario’s OAP1 Auto Policy [1]
“Does “damages” in its various manifestations in the OAP, the [Insurance] Act and the Statutory Conditions include Diminished Value? Is …[an insured] estopped from claiming Diminished Value? Is this a contractual claim defined by the statutory policy or does the […]
Don’t Give the Game Away – Tips on Maintaining Litigation Privilege
Courts have long recognized the origin and rationale of solicitor-client privilege as a necessary and essential tool for the effective administration of justice. A related but conceptually distinct protection is that of litigation privilege. While both forms of privilege serve […]
Limitation of Liability Clauses: Are They Enforceable and Effective?
A frequent issue raised by design consultants is the extent to which they can limit liability for claims through limitation of liability clauses. Although such clauses are enforceable, recent case law raises questions as to their practical effectiveness. Enforceability of […]
Third Party Notices Must be Filed Fast: BC Court Pronounces that Expediency does not Trump Notices
Fault in construction claims is rarely black or white. Claims usually begin with multiple defendants and, as the litigation progresses, the existing parties often discover that additional potentially at-fault entities should be added. In British Columbia, the proper way to […]
Triple Jeopardy: Civil, Disciplinary, and Regulatory Proceedings against Professionals
Members of regulated professions, such as engineers, architects, financial advisors, and health professionals, can face multiple proceedings arising from the same conduct. For instance, for a single event, an engineer may be sued in civil proceedings for negligence, be charged […]
The Whole File and Nothing But the File: A Precautionary Tale regarding Disclosure and Production of an Insurer’s Underwriting, and Claims and Investigation Files in the Context of Coverage and Bad Faith Claims
The scope of disclosure and corresponding production of documents typically becomes an issue in the context of an insured’s claim against an insurer for coverage and bad faith. Inevitably, the insured will demand disclosure and production of the underwriting, and/or […]
Disclosure Requirements for Statutory Third Parties
Two cases decided within the last year have confirmed that an insurer which adds itself as a Third Party pursuant to Section 258 (14) of the Insurance Act (the off-coverage insurer) is required to answer questions and disclose information in […]
Advanced Payments: When and Why?
With the pending changes to the SABS, tort adjusters will undoubtedly be called upon by Plaintiff counsel to make advance payments to cover such things as medical expenses, lost wages and attendant care. Seriously injured Plaintiff’s facing a combined $65,000 […]
Owner Vicariously Liable for Drunk Driver’s Accident
Recently, the Ontario Superior Court of Justice considered the vicarious liability of an owner of a vehicle for the negligence of the driver of the vehicle in the unfortunate case of Watts v. Boyce, Dunham and Co-Operators. The lawsuit in […]
What does “Authorized by Law” to Drive Mean?
The Court of Appeal for Ontario has released a decision interpreting the meaning of the phrase “authorized by law” in s. 4(1) of O. Reg. 777/93 (Statutory Condition 4 in the OAP). In Kereluik v. Jevco, the insured Kereluik was […]
Insurer Must Defend G2 Licensed Drunk Driver
Today’s Ontario Reports contained an interesting duty to defend decision from February 2011. In Tut v. RBC Insurance, the applicant sought a declaration that the respondent RBC Insurance owed them a duty to defend the allegations of negligence made against […]
