Hartling v. Nova Scotia (Attorney General), 2009 NSSC 2

In a lengthy decision of the Supreme Court of Nova Scotia, the Court ruled that due to the applicants failure of establishing on a balance of probabilities infringement of their rights, Section 113B(1)(a) of the Insurance Act does not infringe Section 15(1) of the Charter on the basis of physical disability - The evidence established that there was no stigmatization and marginalization resulting from the legislation for those persons suffering from soft tissue injuries, even those with chronic pain - Due to unreliable evidence, the Court also held that Section 113(B)(1)(a) of the Insurance Act does not infringe upon Section 15(1) of the Charter on the basis of sex - Furthermore, the Court established that Section 2(1)(d)(ii) of the Automobile Insurance Tort Recovery Limitation Regulation does not infringe Section 15(1) of the Charter on the basis of physical disability - Once again it concluded that the applicants failed to establish on a balance of probabilities that the regulation stigmatized or stereotyped chronic pain sufferers - The Court held that Sections 2(1)(f), (g) and (h) of the Auto Insurance Tort Recovery Limitation Regulations was not Ultra Vires of the Insurance Act - Rather, they were clearly consistent with the legislation and entirely within the power of the Legislature - Regarding the issue of discrimination based on mental disability, the Court opined, based on the medical evidence presented, that PTSD is an injury which is "physical in nature", therefore establishing that the CAP could be applicable to such injuries - The Section 15(1) Charter challenge regarding Section 113(B)(1) of the Insurance Act and Section 2(1)(f) of the Regulations was refuted as no distinction was made with respect to the applicant's injury on the basis of mental disability - The applications were dismissed - Although not necessary based on the result, due to the time, effort and expense incurred by the parties in this matter, Section 1 of the Charter will be addressed in part two of the decision - We will report fully on this decision as well an any appeals in subsequent issues.

Ng v. Beline (2008), 169 A.C.W.S. (3d) 1139

The Plaintiff, Ms. Ng, was injured in a motor vehicle accident on June 18, 2004 when her vehicle was rear-ended by a police cruiser driven by the defendant - the Plaintiff commenced her action for both pecuniary and non-pecuniary damages on October 3, 2006 - the Defendant then brought a Motion for partial summary judgment claiming there was no genuine issue for trial because the Plaintiff's action was statute-barred by operation of ss. 4 and 5 of Limitations Act, 2002 (Ont.) - the Plaintiff claimed she did not know until April 16, 2007 that her injuries were serious enough to satisfy the threshold test for non-pecuniary claims.

Motion for partial summary judgment dismissed - Justice Perell, based on the Court of Appeals decision in Chanderovitch v. John Doe, [2004] O.J. No. 681, determined that although there were separate causes of action for pecuniary and non-pecuniary losses for automobile accidents under the Insurance Act, Chanderovitch did not dictate that each cause of action receives an independent limitations period analysis - the current legislation should be interpreted in the same manner as Peixeiro v. Haberman, [1997] S.C.R. 549 and the Plaintiff should receive the most favorable treatment possible, meaning that the measure of whether he/she has a claim is governed by the discoverability of the claim for non-pecuniary damages, the threshold claim - applying this approach, Justice Perell held that there was a genuine issue for trial and the motion for partial summary judgment was dismissed.

Pharmacie Acadienne de BeresfordLt e v. Beresford Shopping CentreLtd./Lte (Court of Appeal of New Brunswick)

Lessee brought a subrogated action on behalf of its insurer against the lessor in respect of lost inventory, equipment, and leasehold improvements resulting from a burst sprinkler system in the leased premises - Lease provided in Clause 24 that lessor was not responsible for injury to property on premises unless due to its negligence - Clause 28 provided that lessee's insurance policies were to contain waiver of subrogation - Third party brought motion for determination prior to trial of question of law, namely, whether by virtue of lease, lessee could pursue a claim arising from damage to a part of the lessor's building occasioned by a peril insured against by the lessee, whether or not such a claim arose through the lessor's negligence - Motions judge found that the release in Clause 28 pertained only to claims for damage to "integrated leasehold improvements" and held that the laintiff as the lessee could pursue a claim in negligence against the defendant as lessor for the loss against which the lessee had insured itself regardless of any negligence or fault of lessor

Held: Appeal by third party allowed - Where, as here, wording of the lease provision at issue is lifted verbatim from legislation, the nuanced approach is required - Underlying subrogated action was precisely the kind of proceeding that Clause 28 was designed to thwart - Clauses 24 and 28 gave rise to a coherent loss-bearing scheme that permitted no claims other than claims in negligence against the lessor for uninsured property damage and disallowed subrogated claims in negligence arising out of the property damage falling within the class described in the second part of Clause 28 - Decision below was set aside and the main action and third party claim were dismissed.

The Court of Appeal of New Brunswick advises: if the ability to successfully prosecute a subrogated action is truly valued as a payout recovery option, a close inspection of the lease is an absolute must - That is so because its terms invariably operate, whether individually or collectively, to limit the lessors liability in a manner that curtails subrogation rights.

McLellan v. Martin (2008)

Plaintiff was involved in motor vehicle accident - Plaintiff alleged that she had to reduce her catering business volume and had difficulty completing her daily household tasks as result of the injuries sustained in the collision - Defendant disputed liability for damages, alleging that the plaintiff's loss of income was occasioned by a prior ailment and that the plaintiff's catering business was in state of demise long before the accident - Plaintiff sued defendant and brought motion for advance payment of special damages under Section 265.6 of the Insurance Act -

Held: Motion dismissed - Plaintiff failed to meet the first part of the test to be applied in application for an advance payment under Section. 265.6 - It was not established on a balance of probabilities that the trial judge was more likely than not to award special damages sought by the plaintiff - Issue of prior medical conditions would have to be resolved by the trial judge - Triable defence existed and to allow for advance payment at present time without results of independent medical examination could possibly do damage to this defence.