Our first case this month deals with an Order for production of electronic data by an internet provider at the discovery stage in a personal injury action.
Our second case this month deals with the Court’s interpretation of an exclusion in a homeowner’s insurance policy.
Foster & Company is pleased to announce that Andrew Speight has joined Foster & Company as a litigation associate.
Born and raised in Fredericton, New Brunswick and fluently bilingual, he holds a Bachelor of Science degree from the University of New Brunswick and a Bachelor of Arts Degree with a double major in philosophy and political science from St. Thomas University. He returned to the University of New Brunswick for his Bachelor of Laws degree.
Andrew was admitted to the New Brunswick bar in 2008. He has experience in family and criminal law and civil litigation, but practices primarily in civil litigation and insurance law.
Andrew is a member of the Law Society of New Brunswick, the Canadian Bar Association and the York Sunbury Law Society.
Andrew Speight is looking forward to working with you and can be reached by:
Telephone: (506) 462-4009
Fax: (506) 462-4001
The Supreme Court of Canada dismissed the application for leave to appeal from the Alberta Court of Appeal’s decision in Morrow v. Zhang (2009 ABCA 215) which held that Alberta’s version of the “cap” was constitutional. Accordingly, the cap remains in place in Alberta.
In Nova Scotia, the Court of Appeal held that the “cap” was not discriminatory and as such, the “cap” also remains in place in that province (Hartling v. Nova Scotia (Attorney General) 2009 NSCA 130).
Carter v. Connors 2009 NBQB 317
In Carter v. Connors 2009 NBQB 317, the plaintiff was involved in a motor vehicle accident on November 27, 2004 and claimed to have suffered personal injuries.
At the examination for discovery, the plaintiff was asked, via an undertaking, to provide the history of her internet usage at her home from the date of loss onward. She took the position that the account history was irrelevant and its production would constitute an infringement of her right to privacy.
A Motion was brought by counsel for the defendant seeking not only the history of the plaintiff’s internet usage, but also a record of the time spent by the plaintiff on Facebook.
The Court concluded that the information sought had a higher probative value than the rights which would be infringed by its production. The Court determined that the information sought to be disclosed was not information that “could qualify as revealing very personal information over which most right thinking Canadians would expect a reasonable expectation of privacy.” (paragraph 38)
The Court also determined that the information sought met the relevance test set out at the discovery stage, i.e. “semblance of relevance”. The information provided a window into the plaintiff’s physical ability to use a keyboard, access the internet and communicate with family and friends. The Court found this information relevant to the question as to whether the plaintiff was able to work, which was at issue in this matter.
The Court made it very clear, in answer to the plaintiff’s argument that such an Order would infringe upon the right to privacy of people who have used the plaintiff’s internet account while visiting, etc., that such rights would not be breached as the information sought related to account usage time by the plaintiff of an interface such as Facebook.
The plaintiff was therefore ordered to obtain from her internet service provider a history of her computer account use at her residence from the date of the accident to the date of the judgment. The plaintiff was also ordered to request that her internet service provider attempt to generate an account use history for the site Facebook from the date of the accident until the date of the decision, if such a record could be generated. The Court reminded counsel that the information was to be kept strictly confidential and be used only for the purposes of these proceedings.
The plaintiff was ordered to pay costs to the defendant of $500.
Currie v. Wawanesa Mutual Insurance Company 2009 NBQB 321
In Currie v. Wawanesa Mutual Insurance Company 2009 NBQB 321, the plaintiff owned rental property on Grand Manan Island, New Brunswick which was insured by Wawanesa Mutual Insurance Company. The plaintiff’s main residence was in Ontario, however, she started renting the Grand Manan property in the Spring of 2005 to the Kearneys. The plaintiff arranged for the tenants to pick up the keys from the plaintiff’s friends, the Cunninghams.
On October 16, the plaintiff was advised by the Kearneys that they were moving out, which they did at the end of the month. They kept the keys to the property so that the fridge and stove could be returned to the house, as they had been stored in the shed by the tenants.
Around the end of the first week of December, the Kearneys returned the keys to the plaintiff’s rental property to the Cunninghams. On December 28, the plaintiff discovered that the house had been badly damaged by water from freezing pipes.
The Court first determined that the house had been “unoccupied” since November 1, 2005. The Kearneys return to the house to bring back the appliances and the delay in returning the keys did not render the house “occupied” as defined by the case law.
The Court then had to decide whether the plaintiff had taken “reasonable care to ... maintain heat in the building or structure...”, according to the wording of the policy. The Court found that the plaintiff should have had the house checked after the tenants left to ensure that the heat was on in the property. The Court did not agree that the Cunninghams, as “keepers of the keys”, were acting as managers, superintendents, agents, etc., for the plaintiff, and refused to find that they had a duty of care.
The Court also examined whether the plaintiff took “reasonable care to ... shut off the water supply and drain the system of water.” The Court found that in previous winters, instead of shutting off the water supply, the plaintiff had ensured that the heat was maintained in the house. The Court further determined that it was not the responsibility of tenants to drain a plumbing system of water in order to winterize a property. It was held that the plaintiff, as owner of the house, should have carefully checked the house to ensure the proper things that needed to be done were done once the tenants vacated the premises.
The plaintiff’s claim against the homeowner’s insurer was dismissed, and the defendant insurer was awarded costs of $5,400 plus disbursements.