Bains v Cheema, 2022 BCCA 430. Reading Time: 5 minutes (approx.) By: Weston McArthur (Articled Clerk) Dilsher Cheema was injured in a rear-end motor vehicle accident that took place on January 28, 2018. Liability was not in issue, and the trial judge awarded the Plaintiff $102,062.86 in overall damages, $50,000 of which was awarded for...Read More
Whalen & Chaisson v Allstate et al, 2022 NBKB 233 Reading Time: 3 minutes (approx.) By: Chloe Jardine (Articled Clerk) A dispute between Peter Whalen and Nicole Chiasson (“the Plaintiffs”) and their insurer, Allstate Insurance Company of Canada (“the Defendant”) regarding restoration costs to the Plaintiffs’ property following a flood resulted in the filing of...Read More
Aviva Insurance Company of Canada v Macdonald, 2022 NBCA 68 Reading Time: 3 minutes (approx.) By: Chloe Jardine (Articled Clerk) In the November edition of “In Brief,” we reported on MacDonald v. Aviva, 2022 NBQB 140. In that case, Joyce MacDonald, who was injured in a motor vehicle accident, was found to be entitled to...Read More
Doucette v City of Charlottetown, 2022 PESC 11 Reading Time: 3 minutes By: Chloe Jardine (Articled Clerk) Gail Doucette (“Plaintiff”) filed an action against the City of Charlottetown (“the City”) following an oil leak at the Sherwood Recreation Hall in 2013. The Plaintiff, who had been residing in her home since 1982, was informed of...Read More
AIG Insurance Company of Canada v Lloyd’s Underwriters, 2022 ONCA 699. Reading Time: 4 minutes By: Weston McArthur (Articled Clerk) The Forgets owned a home in Timmins, Ontario, which they moved into in 2013. Three years after they moved in, the home experienced progressive damage due to land erosion and instability. The homeowners sued the...Read More
Emond v Trillium Mutual Insurance Company, 2022 ONSC 5519. Reading time: 6 minutes (approx.) By: Weston McArthur (Articled Clerk) In April 2019, the Emonds’ home was washed into the Ottawa River by flooding. The Emonds had a homeowners’ insurance policy with Trillium Mutual Insurance Company (“Trillium”). This policy included guaranteed rebuilding cost coverage (“GRC”). The...Read More
Ballam Insurance Services Limited v Fundy Computer Services Ltd., 2022 NSSC 277 Reading Time: 5 minutes (approx.) By: Chloe Jardine (Articled Clerk) Fundy Computer Services Ltd. and Atlantic Datasystems Inc. (collectively “the Defendants”) filed a motion to dismiss an action filed by Ballam Insurance Services Limited (“the Plaintiff”) on October 4, 2011. The Defendants provided information technology services to the Plaintiff in 2010 and 2011, from which a dispute arose over server issues. An Amended Notice of Action was filed by the Plaintiff on January 23, 2014, and Examination for Discovery was held June 18-19, 2014. The Defendants argued that the last meaningful step taken by the Plaintiff occurred on February 17, 2016, when the Plaintiff partially fulfilled their Discovery undertakings. The Plaintiff argues there had been further efforts made to advance the action including obtaining an expert. Further, the Plaintiff argued that any delays were out of their control due to their original expert changing employment in 2017, staffing changes at their legal counsel’s office, the COVID-19 pandemic delaying the process of hiring a new expert, and the Defendants not making the original physical server and associated software/logs available to the Plaintiff. When considering whether to dismiss an action for delay, the Court must determine: (1) if there was an excessive delay; (2) if this delay was excusable; (3) if this delay presents a substantial risk of an unfair trial or prejudice against the Defendant(s), and (4) in the presence of such a risk, what outcome is just when considering the interests of both parties. The Court clearly stated that there was an excessive delay in this action. Discovery had concluded eight years prior, yet undertakings had not been fulfilled. Further, no expert report had been presented by the Plaintiff notwithstanding their subsequent expert had been hired nearly two years prior. When such a delay is found, the burden is on the Plaintiff to prove that this delay was reasonably excusable. The Court found that while the delays argued by the Plaintiff likely impacted their ability to move the action forward, the Plaintiff had not satisfied the Court/ that these factors were entirely responsible for the extensive delays occurring in this matter. The Plaintiff could not explain why there has yet to be an expert report produced or why nearly half of their undertakings remain unfulfilled. Even with the finding of an excessive and inexcusable delay, the Court found there was no risk to the fairness of a trial. The Defendant argued that “there can be no doubt that the memories of those involved have faded.” The Court was not satisfied, as the Defendant did not identify key witnesses impacted by the delay or how this would result in a risk of an unfair trial or prejudice to the Plaintiff. With this finding, the Court did not need to consider what a just outcome would be in this case. The motion was dismissed, and the 11-year-old action was allowed to continue with trial dates scheduled for February and March 2024. The Court imposed deadlines on both parties to fulfil undertakings and produce reports to force the matter forward as the trial dates approach. Link: https://www.canlii.org/en/ns/nssc/doc/2022/2022nssc277/2022nssc277.html?autocompleteStr=2022%20NSSC%20277&autocompletePos=1Read More
MacDonald v Aviva, 2022 NBQB 140 Reading Time: 2 minutes (approx.) By: Chloe Jardine (Articled Clerk) Joyce MacDonald (“the Plaintiff”) suffered injuries as a result of a motor vehicle accident on February 7, 2011. Due to her injuries, she was unable to return to her job as a nurse at Campbellton Regional Hospital for 104 weeks. The Plaintiff received Section B loss of income benefits from Aviva Insurance Company of Canada (“the Defendant”) during this period. After 104 weeks, the Plaintiff returned to work through a gradual return to work program. The Plaintiff continued to work for a period of 13 months, before she had to stop working permanently due to her injuries in September 2014. She attempted to resume her Section B weekly payments, claiming she was prevented from pursuing employment due to her injuries, but this request was denied by the Defendant. The parties turned to the Court to determine if the Plaintiff was entitled to continue receiving these benefits given that she had returned to work for over a year following the accident. To make this determination, the Court needed to ascertain whether the Plaintiff’s injuries had “continuously” prevented her from working. The Plaintiff argued that, though she returned to work, she was never able to successfully fulfil her expected duties as a result of the injuries sustained. The Court found that a failed attempt to return to work, regardless of the length of said return period, should not prevent an insured from being eligible to receive further weekly benefits. The Court found the insurance policy to be ambiguous, so the interpretation was found to be in favour of the Plaintiff. With this, the Plaintiff was entitled to weekly Section B retroactively to September 2014. On October 19, 2022, a motion for leave to appeal was allowed and we will update our readers on the result of the appeal. Link: https://www.canlii.org/en/nb/nbqb/doc/2022/2022nbqb140/2022nbqb140.html?autocompleteStr=2022%20nbqb%20140&autocompletePos=1 Read More
Diebold v Economical Mutual Insurance Company, 2022 ONSC 5592. Reading Time: 5 Minutes By: Weston McArthur (Articled Clerk) Pamela Diebold (one of the Plaintiffs) was involved in a motor vehicle accident on March 28, 2015, in Henrietta, New York, USA. She was injured and claimed to have suffered a loss of earning capacity. The Plaintiff Diebold was employed at Economical Mutual (the Defendant) and was covered under a group policy with Sun Life Assurance Company through this employer. The Plaintiff Diebold applied for and received both short-term and long-term disability benefits. The Plaintiff’s long-term disability benefits ceased on July 31, 2017, and she sued Sun Life for additional payments of those benefits. In addition, the Plaintiff claimed “general damages, damages for breach of contract, interest, punitive damages, aggravated general damages, and exemplary damages” [para 13]. In January 2019, the Plaintiff reached a confidential settlement with Sun Life. The Plaintiff’s claim was settled “on an all-inclusive basis” [para 14]. The Defendant, Economical Mutual, held that the Sun Life settlement payment should be deducted from any award that the Plaintiff receives at trial under the loss of income head of damages. The Defendant relied on section 267.8(1) of the Ontario Insurance Act. The New Brunswick equivalent is section 265.4(1). Section 267.8(1) provides that: 267.8(1) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for income loss and loss of earning capacity shall be reduced by the following amounts: 1. All payments in respect of the incident that the plaintiff has received or that were available before the trial of the accident for statutory accident benefits in respect of the income loss and loss of earning capacity. 2. All payments in respect of the incident that the plaintiff has received or that were available before the end of the trial of the action for income loss or loss of earning capacity under the laws of any jurisdiction or under an income continuation benefit plan. 3. All payments in respect of the incident that the plaintiff has received before the trial of the action under a sick leave plan arising by reason of the plaintiff’s occupation or employment. Justice Gibson found that the broadness of the language in section 267.8(1) of the Insurance Act was key, and concluded that the settlement payment by Sun Life should be deducted from any award of damages that the Plaintiff receives for loss of income. The judge focused on the phrase “All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action.” Further, given that LTD benefits are deductible from awards for loss of income under section 267.8(1), it made sense by extension that a settlement payment for LTD benefits would be deductible as well. Link: ...Read More
