Ari v Insurance Corporation of British Columbia, 2022 BCSC 1475. Reading Time: 4 minutes (approx.) By: Chloe Jardine (Articled Clerk) The Insurance Corporation of British Columbia (“ICBC”), which maintains a database of personal information for every license holder and registered owner of a motor vehicle in the province, was at the centre of a legal action when a former employee accessed this database and sold information to a third party. Between April 2011 and January 2012, thirteen individuals were the victims of shooting and arson attacks on their homes and/or vehicles. The only connection these victims shared is that their vehicles had each, at one point or another, been parked in the Justice Institute of British Columbia parking lot. Former ICBC claims adjuster, Candy Elaine Rheaume, was fired when investigation into the attacks uncovered that she had accessed the personal information of at least 79 individuals without any apparent business purpose. This information was sold to a third party, and ultimately used to carry out the attacks. This class action was commenced on behalf of all individuals who had their personal information improperly accessed and those that reside with these individuals including, but not limited to, those who were victims of attacks. The initial issue was whether the former claims adjuster committed a breach of the Privacy Act, RSBC 1996, c 373. If so, the subsequent issue was whether the ICBC was vicariously liable for their employee’s conduct. The Supreme Court of British Columbia found that Candy Elaine Reaume had breached the privacy of these individuals, as there was a reasonable expectation that the ICBC would protect any personal information collected. Further, the ICBC was found vicariously liable for the conduct as the court indicated that “…risk of such conduct was not only foreseeable, it was actually foreseen” [para 74]. The Court highlighted the ICBC’s own privacy protocols, in which the ICBC informs employees about the need to protect the privacy of personal information collected and warns of the consequences resulting from accessing this personal information without a business purpose. Notably, the Court highlighted the involuntariness of providing information to the ICBC. All drivers need to provide information to the ICBC to obtain a license and insure a vehicle in the province. The Court found that, because providing this information to the ICBC is mandatory, there is a reasonable expectation that the ICBC will protect this information. The ICBC was found vicariously liable for the general damages and pecuniary damages caused by its employee’s breaches, but did not justify an award of punitive damages against the ICBC. Link: https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc1475/2022bcsc1475.html?autocompleteStr =ari%20v%20&autocompletePos=11Read More
Aditi v Doe, 2022 ONSC 4049. Reading Time: 5 minutes (approx.) By: Weston McArthur (Articled Clerk) In Aditi v Doe, 2022 ONSC 4049, the Insured was involved in a motor vehicle accident where the person that hit them fled from the scene immediately following the collision. An eyewitness to the accident told a responding police officer that the missing individual was driving a “black pick-up truck” [para 11], but the driver was never found or identified. The Insured possessed both a standard motor vehicle insurance policy ($200,000) and a OPCF 44R Family Protection Endorsement ($1,000,000). Both policies are meant to protect insureds in accidents involving unidentified vehicles. Both the Insured and the Insurer agreed that the Insured was covered by the standard motor vehicle policy, but access to the $1,000,000 limit in the OPCF 44R Family Protection Endorsement was in issue. In this summary judgement motion concerning the application of coverage, the Court had to decide if the statement by the eyewitness to the police officer could satisfy the corroboration requirement of the OPCF 44R Family Protection Endorsement. At paragraph 2, Justice Myers wrote that, “[w]hen a victim in a motor vehicle accident claims under her own insurance policy for coverage for loss caused by an unidentified vehicle, the OPCF 44R Family Protection Endorsement requires that the involvement of an unidentified vehicle be supported by corroborating physical evidence or independent witness evidence” [emphasis added]. At first glance, the eyewitness’s statement was hearsay, which to refers to a statement made out of court to prove the truth of its contents. Here, the eyewitness clearly made the statement out of court because they made it to a police officer, who did not get the name and contact information of the eyewitness. The statement was put forward to prove the truth of its contents because the Insured was attempting to prove that she was hit by an unidentified vehicle, whereby satisfying the corroboration requirement of the OPCF 44R Family Protection Endorsement. Looking to the automobile accident insurance contract, Justice Myers found that the wording stated that the corroboration merely needed to “indicate” and not “prove” the “involvement of an unidentified vehicle”, while also including “independence and materiality requirements” [para 36]. Justice Myers explained that “the goal is to ensure that the insurer has a fair assurance, external to the plaintiff herself, that an unidentified driver was involved” [para 36]. At the hearing, the police officer testified. Justice Myers held that the eyewitness’s statement to the police was enough to indicate the involvement of an unidentified vehicle, whereby satisfying the corroboration requirement of the OPCF 44R Family Protection Endorsement, even though the evidence may not be admissible at trial. Furthermore, the fact that the hearsay came from a police officer was enough to satisfy Justice Myers that the evidence was independent of the Insured. Lastly, there was no doubt that the evidence was material because it went right to the heart of the question of coverage. Ultimately, the Court ruled in favour of the Insured. Link: https://www.canlii.org/en/on/onsc/doc/2022/2022onsc4049/2022onsc4049.html?searchUrlHash= AAAAAQALImluc3VyYW5jZSIAAAAAAQ&resultIndex=13Read More
Butterfield v Intact Insurance Company, 2022 ONSC 4060. Reading Time: 3 minutes (approx.) By: Weston McArthur (Articled Clerk) In Butterfield v Intact Insurance Company, 2022 ONCS 4060, the Insured suffered from severe schizophrenia. When the Insured was at a firearm store, he suffered from a schizophrenic episode, which caused the Insured to believe that his life was at risk and led to him stabbing the storeowner. While the Insured was charged with aggravated assault, he was ultimately found not criminally responsible because of his mental illness. The storeowner subsequently sued the Insured for negligence. The Insured had a Condominium Owner’s Policy with Intact Insurance that included third-party liability insurance. This policy also contained an exclusion that stated that Intact would not have to defend the Insured where the Insured committed bodily injury by way of an intentional or criminal act. In light of the exclusion, Intact claimed that it did not have to defend the Insured. The Insured subsequently commenced an application for a declaration that Intact had a duty to defend him. First, the Court had to determine the true nature of the claim being brought by the Plaintiff storeowner in the main action; if the claim was truly grounded in negligence, Intact would have to defend the Insured. While the Statement of Claim alleged negligence, Justice Braid was not convinced that this was the true nature of the claim. At paragraph 14, Justice Braid wrote that, “[t]o ascertain the true nature and substance of the claim, and whether it falls within the ambit of coverage, the court must look beyond any labels used by the plaintiff.” At paragraph 17, Justice Braid held that “the alleged negligence claim is based on the same harm as an intentional tort of assault (if it had been pleaded)”. The result was that the Court found that the true nature of the claim being brought by the Plaintiff was the tort of assault. Justice Braid ultimately dismissed the application. She held that Intact did not have to defend the Insured because the Insured’s actions constituted an intentional criminal act that was excluded by the Condominium Owner’s Policy. Link: https://www.canlii.org/en/on/onsc/doc/2022/2022onsc4060/2022onsc4060.html?searchUrlHash= AAAAAQALImluc3VyYW5jZSIAAAAAAQ&resultIndex=6Read More
Dominion of Canada General Insurance Company v Ridi, 2022 ONCA 564. Reading Time: 2 minutes (approx.) Written By: Weston McArthur (Articled Clerk) Filippo Ridi was seriously injured in a motor vehicle accident and became eligible for Ontario Statutory Accident Benefits [hereinafter, “SAB”]. These benefits were paid for by Travelers. At paragraph 3, the Court wrote...Read More
Irwin v Swift et al, 2022 NBCA 35 Reading Time: 3 minutes (approx.) By: Chloe Jardine (Articled Clerk) This decision arises from a 2018 motor vehicle accident, in which a vehicle driven by Corey Irwin (“the Appellant”) was struck from behind by a vehicle driven by Shelley Swift and registered to her husband, Ronald Swift....Read More
Le v British Columbia (Attorney General), 2022 BCSC 1146 Reading Time: 4 minutes (approx.) By: Chloe Jardine (Articled Clerk) In May 2021, British Columbia adopted a reformed approach to automobile insurance. Among these changes was a limit of 6% – of total damages awarded at trial or agreed to in settlement – that a successful...Read More
MacGlashing v. Fernley and City of Moncton, 2022 NBQB 129 Read Time: 4 minutes By: Chloe Jardine (Articling Student) On March 30, 2016, Natalie MacGlashing (“the Plaintiff”) and Sarah Fernley (“the Defendant Fernley”) were involved in a motor vehicle accident in Moncton, New Brunswick. The Plaintiff claims that the Defendant Fernley failed to stop at...Read More
Lin v Weng, 2022 ONCA 367. Reading Time: 3 minutes (approx.) By: Weston McArthur (Articling Student) At paragraph 1, Justice Feldman summarized the facts of this case: “The appellant’s tenants burned down his property on the last day of their tenancy. They caused a fire and explosion in the basement by using a butane lighter,...Read More
GFL Infrastructure Group Inc v Temple Insurance Company, 2022 ONCA 390. Reading Time: 5 minutes (approx.) By: Weston McArthur (Articling Student) The Toronto Standard Condominium Corporation No. 2299 (hereinafter, “TSCC 2299”) is the owner of a large residential condominium tower in the Distillery District of downtown Toronto. Distillery S.E. Development Corp., Cityscape Development Corporation, and...Read More
