Lloyd’s Underwriters v Jagoe, 2022 NBCA 7. Reading Time: 6 minutes (approx.) By: Weston McArthur In a previous newsletter, we reported on the case recorded as Doug Jagoe v Lloyd’s Underwriters, 2021 NBQB 220, which has recently gone to appeal (see our article here: https://fosterandcompany.com/insurers-need-to-be-careful-to-define-key-words-in-policies/). To review the underlying case, Mr. Jagoe (Plaintiff in the...Read More
Province of New Brunswick v Clayco Construction (2001) Ltd, et al, 2022 NBQB 66. Read Time: 4 minutes (approx.) By: Chloe Jardine (Articling Student) In 2006, the Province of New Brunswick (“the Plaintiff”) awarded a contract to the Clayco Construction (2001) Ltd. (“the Defendant”). This contract was to complete the removal of remaining portions of...Read More
Figueroa-Monaca v Vautour-Landry, 2022 NBQB 98. Reading Time: 4 minutes (approx.) By: Weston McArthur (Articling Student) On May 7, 2018, Mr. Mario Figueroa-Monaca (“the Plaintiff”) was involved in a motor vehicle accident. Ms. Norma Vautour-Landry (“the Defendant”) rear-ended the Plaintiff’s vehicle in Shediac, New Brunswick, when the Plaintiff was at a stop in heavy traffic....Read More
Nebozuk v Northbridge General Insurance Corporation, 2022 ABQB 212. Reading time: 4 min (approx.) Written by: Weston McArthur (Student-at-Law) In July 1998, the Plaintiff was involved in a motor vehicle accident. On October 31, 2017, the underlying tort action finally settled. On December 20, 2018, the Plaintiff filed a Statement of Claim commencing an action...Read More
2102908 Alberta Ltd v Intact Insurance Company, 2022 ABQB 175. Reading time: 4 min (approx.) Written by: Weston McArthur (Student-at-Law) The operator of a bowling alley in Fort McMurray, Alberta, (the Plaintiff”) was insured with the Intact Insurance Company (the “Defendant”). On April 27, 2020, the Clearwater River in Fort McMurray overflowed into the city....Read More
Security National Insurance Company v Gore Mutual Insurance Company, 2022 ONSC 2083. Read time: 3 minutes (approx.) Written by: Weston McArthur (Student-at-Law) Carlo and Daureena Facchini, the Defendants in the underlying action, owned a property in Caledon, Ontario. Lynne Dinardo, the Plaintiff in the underlying action, slipped and fell on their premises. After a claim...Read More
Nursing Homes Act, RSNB 2014, c 125. By: Weston McArthur (Student-at-Law) Reading Time: 5 Minutes On December 17, 2021, changes that were made to New Brunswick’s Nursing Homes Act (NHA) came into effect. This piece of legislation lays out the law surrounding the establishment and operation of nursing homes in New Brunswick. The changes concern subrogation. In Riley v Ritsco, the British Columbia Court of Appeal defined subrogation as “a doctrine that allows an innocent third party who pays compensation to a victim, to stand in the shoes of the victim in recovering from the wrongdoer the amounts paid” [para 110]. Subrogated claims operate differently depending on the circumstances, contracts, and statues involved; in some cases, an insurer might have the victim sue on its behalf as part of their claim, or may sue directly. The prior version of the NHA did not have any sections pertaining to subrogation. In the current version of the law, the subrogation provisions give the Government of New Brunswick the ability to sue and claim money from wrongdoers who injure an individual to such a point that they become a resident of its nursing homes for the purposes of funding the care of said resident. Sections 28.1(1), 28.1(2), and 28.1(3) make this clear. Section 28.1(2) reads that “[t]he Crown in right of the Province may make a claim in its own name or in the name of the person referred to in subsection (1) who suffered personal injuries for recovery of the amount of assistance provided by the Minister under section 23.” Section 28.1(4) expounds that a wrongdoer will not be considered discharged of their liability unless the injured party themself or the Crown attempts to recover or is successful in recovering the amount that the wrongdoer owes the plaintiff. In tandem, section 28.1(6) plainly states that “[n]o release or settlement of a claim is binding on the Crown in right of the Province unless the Minister has approved the release or settlement in writing.” Under section 28.1(7), if the wrongdoer was insured and the injured person does not attempt to recover the cost of caring for them in a New Brunswick nursing home, then the insurer must pay the Government the amount of that cost of care. In return, the insurer is off the hook with regards to paying the insured party “in any subsequent claim.” With all of that said, where the injured has already gone out and hired a lawyer and took successful legal action against a wrongdoer wherein they recovered the cost of care for residing in a nursing home because of the injury, the Government may authorize that the lawyer be compensated for their service. This is discussed under section 28.1(9). In conclusion, New Brunswick is unique among all other provinces and territories in Canada by having a provision in its nursing homes legislation that concerns subrogation to the provincial government. Link: https://www.canlii.org/en/nb/laws/stat/rsnb-2014-c-125/latest/rsnb-2014-c-125.htmlRead More
McKay v Home Depot of Canada Inc, 2022 NSSC 73. By: Weston McArthur (Student-at-Law) Reading Time: 4 Minutes Sometime in 2016, the McKays (the Plaintiffs) had renovations done to their house that involved the installation of new hardwood floors and a bathroom shower. They bought everything from Home Depot (the Defendant), which hired a third party to handle installation. The Plaintiffs were happy with the renovations. From February 2017 until the end of 2018, they communicated consistently with the Defendanst about fixing the renovations. While the floors were eventually replaced, they remained unhappy because the shower issues remained unresolved. In December 2018, the Plaintiffs retained legal counsel and sued the Defendant. The Plaintiffs wanted the Defendant to give them access to various internal correspondences concerning their case; however, the Defendant claimed litigation privilege over those materials. The materials in question included, for example, notes that an employee of the Defendant took during the course of a March 2018 phone call in which the Plaintiff threatened to take the matter to court if not resolved. A party relying on litigation privilege does not need to disclose the protected materials to the opposing party. For litigation privilege to apply, two requirements must be met: firstly, litigation must be existing or there must be a strong indication that it is imminent; secondly, the primary reason for creating the document/correspondence must have been in preparation for that litigation. The Nova Scotia Supreme Court ruled that these notes did not meet the requirements to be protected by litigation privilege. Firstly, the Plaintiff’s threat was not an indication that litigation was forthcoming, but was instead within the scope of a frustrated customer lodging a complaint to a retailer during discussion about resolving that complaint (discussion which continued for many month before legal counsel was retained). Secondly, the notes were not created for the purpose of preparing for litigation, but in the course of attempting to resolve the customer’s complaints without needing to resort to litigation. As it was determined that litigation privilege did not apply to the materials, the Defendants were required to turn them over to the Plaintiff. Link: https://www.canlii.org/en/ns/nssc/doc/2022/2022nssc73/2022nssc73.html?autocompleteStr=mck ay%20v%20home%20dep&autocompletePos=3Read More
Balsom v Rideout, 2022 NLCA 20 By: Weston McArthur (Student-at-Law) Reading Time: 4 Minutes On September 1, 2017, Mr. Corey Rideout (the Plaintiff) and Ms. Gail Balsom (the Defendant) were involved in a motor vehicle accident. On September 19, 2019, the Plaintiff filed his claim. The Defendant took the position that the action was statute-barred pursuant to Newfoundland and Labrador’s Limitations Act and filed a motion to dismiss the Plaintiff’s claim on this basis. The Act sets out that a potential plaintiff generally must commence an action within two years of the date that the accident occurred; however, “[t]he limitation period may be extended where the conduct of the defendant results in a confirmation of the cause of action” per Section 16 of the Act [para 8]. During the period between September 2017 and September 2019, both sides engaged in some degree of discussions surrounding a potential settlement. The Plaintiff submitted that this showed that the Defendant’s insurer had acknowledged his cause of action, and that any settlement privilege that existed over the correspondence between both parties should be waived. The trial judge agreed with the Plaintiff’s reasoning and dismissed the Defendant’s application; however, on appeal, this ruling was overturned. The Canadian judicial system has limited resources, and Canadian courts are very interested in seeing litigants settle before they go to trial. If correspondence relating to settlement negotiations were to be admissible in court, settlement attempts may be discouraged, making settlement privilege the standard. Exceptions to settlement privilege are very rarely allowed, and only when “a competing public interest outweighs the public interest in encouraging settlement”, as detailed in Section 19 of the Act. To establish whether settlement privilege exists, three requirements must be met: firstly, there must be litigation/serious contemplation of litigation; secondly, communication between the parties must be in an effort to negotiate a settlement; and thirdly, communication must be with the intent that, if settlement is not reached, the correspondence would not be entered into court record (for example, marking it “without prejudice”). The appeal judge found that the correspondence between the Plaintiff lawyer and the Defendant’s insurer fell under settlement privilege without exception. The fact that the Plaintiff would be statute-barred from pursing his claim was not sufficient reason to waive settlement privilege. Link: https://records.court.nl.ca/public/supremecourt/decisiondownload/?decision– id=8801&mode=streamRead More
