Our first case is an Ontario Superior Court of Justice decision which deals with the application of the threshold test for non-pecuniary damages under the Ontario Insurance Act. In this case, the Court held that the plaintiff’s permanent chronic pain was enough to constitute a “serious impairment of an important bodily function.” e a “serious impairment of an important bodily function.”
Our second case is an Ontario Superior Court of Justice case with respect to an insurer’s duty to defend. Here, the nature of the allegations, as set out in the pleadings, determined if there was a duty to defend.
Update on the Nova Scotia CAP
On May 27, 2010, the Supreme Court of Canada denied leave to appeal the Nova Scotia Court of Appeal decision in Hartling v. Nova Scotia. The result ultimately means that the provisions of the Nova Scotia Insurance Act and Regulations which limit general damages for “minor injuries” to $2,500 are not discriminatory and therefore do not violate the Charter of Rights and Freedoms.
As a result of the Supreme Court’s refusal to grant leave, the $2,500 CAP on general damages remains in place for accidents occurring between November 1, 2003 and April 27, 2010. However, the legislative changes under Bill 52 have created a new CAP on general damages for “minor injuries” for accidents occurring on or after April 28, 2010.
In general, Bill 52 amends the Nova Scotia Insurance Act respecting the restrictions on claims for minor injuries by:
(a) authorizing regulations defining words or expressions to provide different definitions for different provisions of the Act;
(b) restricting the meaning of minor injury;
(c) requiring insurance companies to offer their policyholders the option of coverage without regard to the limitation on minor injury claims; and
(d) authorizing regulations respecting a system or process for the examination, assessment and treatment or rehabilitation of bodily injuries suffered by an insured.
These changes come into force on July 1, 2010.
New Brunswick On-Line Court Index
The New Brunswick Department of Justice recently enhanced its on-line court index with access to more cases and case types, including Small Claims, Judgment for Civil cases and Probate Court. Archives currently go back to 2000, however, future updates will include pre-2000 cases.
So if you want to search a litigant by name or if you simply want to see if an action has been commenced, this will allow you to access the information without having to retain someone to do a court search.
Only basic information is available, so if you need to obtain actual copies of documents, you will need to attend the relevant courthouse to obtain further details.
To visit the on-line site, please go to:
Whilby v. Redhead, 2010 ONSC 2420
In Whilby v. Redhead, the 25 year old plaintiff was struck by the defendant’s vehicle when it proceeded through a red light. The plaintiff suffered pain in his neck, shoulder and scapular region, numbness and burning in his arms, tingling in his fingers, sharp stabbing pain down his arms, headaches and insomnia. In addition, as his symptoms became chronic, they were accompanied by fatigue, loss of appetite, depression and anxiety.
Prior to the accident, the plaintiff had been employed on an assembly line, played the keyboard and organ for his church and various other groups, enjoyed a number of recreational activities including basketball, swimming, bowling and jogging and had a strong relationship with his wife and children.
Following the trial, while the jury commenced their deliberations, the defendant brought a motion for dismissal of the plaintiff’s claim for non-pecuniary damages and claims under s. 61 of the Family Law Act on the grounds that the plaintiff had not met the threshold requirements set out in s. 267.5 of the Insurance Act. More specifically, the defendant argued that the impairment from which the plaintiff suffered from was neither permanent nor serious.
In dismissing the motion, the court referred to the threshold test set out in Ahmed v. Challenger,  O.J. No. 4188. Justice Aitken easily answered the first two questions of the threshold test in the affirmative, leaving only the question of whether the impairment was “serious”. Justice Aitken reiterated that the word “serious” relates to the degree of impairment that the injury has caused, and not the injury itself. In this case, despite the plaintiff being able to maintain his employment, the permanent chronic pain he suffered from and the lack of credibility issues, meant that even in the absence of objective findings by medical experts, the fact that he was not able to function at his pre-accident level constituted a “serious impairment of an important bodily function.”
In conclusion, the jury awarded the plaintiff $100,000 for pain and suffering and $50,000 for loss of competitive advantages. His wife was awarded $40,000 under the Family Law Act and each of his two children were awarded $15,000.
While New Brunswick and Nova Scotia Courts are not bound by the decision stemming from the Ontario Superior Court of Justice in Whilby v. Redhead, both the New Brunswick and Nova Scotia Insurance Act have similar wording with respect to the definition of “minor personal injury”. In addition, the New Brunswick Courts have accepted and applied the Ontario threshold test in Fraser v. Haines, 2007 NBQB 285. As a result, this case gives Plaintiff’s counsel an additional argument in their attempts to avoid the application of the CAP.
Makowchik v. RBC General Insurance Co., 2010 ONSC 526 ￼
In this case, the Applicant, Mr. Makowchik requested an order requiring his insurance company, RBC General Insurance Company, to defend him in a claim that had been commenced against him (the “Beajan claim”). Both parties agreed that the obligation to defend depended upon the nature of the allegations as set out in the pleadings of the Beajan claim.
Mr. Makowchik’s policy with RBC covered him against “losses due to compensatory claims of others for bodily injury which arrive out of accident or occurrence”, but expressly excluded claims for damages for bodily injury caused intentionally by the insured, at his direction or resulting from his criminal acts or omission. Mr. Makowchik argued that the substance of the Beajan claim was that Beajan was injured in an altercation in a bar either intentionally or due to the negligence of Mr. Makowchik and that the claim of negligence brought the action within the scope of coverage by the RBC policy. RBC argued that the claim of negligence and the intentional tort arose from the same action and caused the same harm, therefore, they were inseparable and if the allegations with respect to the intentional tort were removed from the pleadings there was not enough left to sustain an action for negligence.
The Court held that the true nature of the pleadings alleged that Makowchik hit Beajan in the face with a glass, deliberately and with full knowledge of his actions. Therefore, as the act was an intentional assault the claim did not fall within the scope of coverage and RBC did not have a duty to defend.