Our first case this month deals with the Manitoba Insurance Act and the Court of Queen’s Bench decision to include golf carts within the definition of “automobile” under the Act.
Our second case this month deals with a plaintiff’s motion for leave to amend its Statement of Claim and plead provisions of the Insurance Act, the Proceedings Against the Crown Act and the Injury Regulation.
UPDATES: RULE 80 - CERTAIN CLAIMS NOT EXCEEDING $30,000
As of July 15, 2010, the “small claims” process in New Brunswick was revamped. Under the new Rule 80, a claim can be brought in the Court of Queen’s Bench for money and/or personal property valued up to $30,000 (inclusive of any interest being claimed). If a claim is over $30,000, the action can still proceed under Rule 80 so long as the Plaintiff is willing to abandon any portion over the $30,000 limit. Rule 80 does not apply to claims involving title to land, probate matters, libel and slander suits or claims in the Family Division of the Court of Queen’s Bench, regardless of whether the amount being claimed is less than $30,000.
The result of Rule 80 is that claims under $30,000 now proceed in the same judicial manner as those over $30,000. Rule 80 may be beneficial to the insurance industry by providing a form to deal with “minor” claims. With the imposition of the Cap, many insurance claims for minor personal injuries are falling below the $30,000 limit. The application of Rule 80 on such claims would result in a more expedited process at a lower cost. However, Plaintiff’s suffering from minor personal injuries may be reluctant to limit their potential recovery to $30,000 and therefore, Rule 80 may end up only being utilized in the most clear cut Cap cases, thus reducing its cost-effective potential. In addition, under Rule 80 cost awards are fixed according to Rule 59, and therefore have the potential to be significantly higher..
NEW BRUNSWICK’S STANDARD OWNER’S POLICY (N.B.P.F. NO. 1)
A revised New Brunswick Standard Owner’s Policy (N.B.P.F. No. 1) will come into effect on October 1, 2010.
The changes to the Policy include:
- Elimination of provisions related to the No Frills Policy
which is no longer in force in New Brunswick;
- New definitions of “accident”, “common law partner of the
head of household” and “spouse” in Section B;
- Removal of age limits related to deemed employment
under Section B;
- An amended provision for recorded material and a new
provision for electronic accessories or equipment in
- An increase in reimbursement amounts for substitute
automobile resulting from loss of use by theft in Section C.
Hruska v. Bridges Golf Club Ltd, 2010 MBQB 191
The Plaintiff was injured while he was a passenger in a golf cart driven by a third party and owned by the Defendant golf course. The primary question to be determined by the Court was the applicability of Part II, sections 71 and 72 of the Manitoba Public Insurance Corporation Act, C.C.S.M., c. P215 (“the MPIC Act”) and was whether a “golf cart” can be considered to be an automobile within the meaning of the MPIC Act.
In concluding that a golf cart did constitute an automobile for purposes of Part II of the MPIC Act, the Court stated that the Legislature intended a broader definition of “automobile” to be used for calculation of no-fault benefits (Part II) than for purpose of registration and insurance (Part I).
Justice Keyser stated at that “even if one were led to the definition of “vehicle” in Part I and thereby to the HTA [Highway Traffic Act] definition, that would not exclude a golf cart. It is a device by which a person may be transported on a highway and is not designed to be moved solely by human muscular power, or used on tracks; nor is it a motorized mobility aid...the golf cart was powered by an electric battery and, thus, was self-propelled.” In addition, none of the exceptions outlined in s. 71(2) applied in this case.
As the Plaintiff’s injuries were caused by an accident involving an automobile, sections 71 and 71 of the MPIC Act did apply, and the Plaintiff’s action in tort was statute-barred as he was entitled to no-fault compensatory benefits under the MPIC Act.
Daigle v. Martin, 2010 CarswellNB 4
The plaintiff brought an action for damages due to injuries sustained in a motor vehicle accident between her vehicle and a school bus. The defendant argued that the plaintiff’s action was statute barred for failure to provide notice to the Crown pursuant to the Proceedings Against the Crown Act due to the involvement of a school bus in the accident. The plaintiff brought a motion for leave to amend the Statement of Claim and plead that provisions of the Insurance Act, the Proceedings Against the Crown Act and the Injury Regulation were unconstitutional.
The Court allowed the motion relying upon Rule 27.10 (1) of the New Brunswick Rules of Court which allows amendments to pleadings as long as there is no prejudice caused to the opposite party that cannot be compensated by costs or an adjournment. The Court held that it has a great discretionary power in this regard and that amendments to pleadings are generally allowed. Further, the Court is required to authorize all amendments that would be required to determine and deal with all issues in litigation.
It was the judge’s opinion that the amendment would not influence the normal course of the action, that the request for amendments was made in good faith and that the issue brought forth could have merit. In allowing the amendments, the court relied heavily on the fact that the Examination for Discovery had not taken place, the dates for the Examination for Discovery had not been fixed, the exchange of documents had just begun and the defendant had only provided their Affidavit of Documents the week prior to the motion. Further, the judge was not convinced that allowing the amendment would prejudice the Province of New Brunswick and that refusing to allow the amendment would go against the purpose of the Rules of Court which is to allow for a fair resolution of the matter.