PIPEDA Complaint Based on IME is Ruled “Not Well-Founded”

Posted on February 15, 2006 by Stephen Cavanagh

The Assistant Privacy Commissioner has rejected a complaint by insureds who alleged that their accident benefits had been terminated because of their refusal to attend an “independent medical examination” (“IME”) which had been scheduled by the insurer.

The Assistant Commissioner found that the insurer’s request for the IME was reasonable and that under the terms of the auto policy, the complainants had consented to the insurer having the right to conduct such an examination.

Case Summary #320 can be viewed here.

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Important Costs Decision

Posted on February 15, 2006 by Stephen Cavanagh

Awards of costs have increased substantially since 2002, making costs a key ingredient of many lawsuits. Last week, the Divisional Court released a comprehensive review of the principles to be applied by courts in assessing costs. This is the first major appellate treatment of costs since the costs rules were substantially revised in 2005.

The case is Andersen v. St. Jude Medical. It is not yet online, so we have attached a copy. This is a class action lawsuit in which the defendant is alleged to have manufactured and sold a defective heart valve. The costs award in issue was for the certification motion. Superior Court Justice Maurice Cullity heard (and granted) that motion. He allowed fees of $396,859.80 and disbursements at $213,841.05, for a total award of $610,700.85 plus GST. The plaintiffs had asked for fees of $997,825.55 for fees and $468,969.82 for disbursements (most of the latter was for experts’ fees).

Continue reading →

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Two Courts Refuse to Overturn Settlements

Posted on February 14, 2006 by Stephen Cavanagh

Two cases today addressed the question of when a settlement is enforceable. One was a Court of Appeal decision: Mohammed v. York Fire and Casualty Insurance Company. The other was a decision of Justice Denis Power of the Ontario Superior Court in Hagel v. Giles et al.

In both cases, the settlement sought to be enforced involved a dismissal of the plaintiff’s claim, without costs. In both cases, the plaintiff later tried to have the settlement set aside. Both courts upheld the settlements.

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Quebec Slip and Fall Claim Permitted to Proceed in Ontario

Posted on February 8, 2006 by Stephen Cavanagh

Mr. Justice Paul Perell, a recent appointee to the Ontario Superior Court, has ruled that an Ontario resident who fell and injured herself at her brother’s Quebec home, can nevertheless pursue a claim for damages in an Ontario court.

In Marabella v. Pietracupa, the defendant had moved to dismiss the Ontario action, arguing that the claim should be tried in Quebec, where the accident had occurred. Justice Perell (who, while he was in practice, was an extremely prolific author of numerous articles in legal journals) held that the legal analysis had two steps. First, the court had to determine whether Ontario had “jurisdiction simpliciter“. In other words, can an Ontario court take jurisidiction over this particular type of case, with these parties and this factual background?

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C.A. Finds Trial Judge Set Causation Bar Too High in Slip and Fall Case

Posted on February 8, 2006 by Stephen Cavanagh

This afternoon, the Court of Appeal released its decision in Kamin v. Kawartha Dairy Limited. This was an occupier’s liability case that had been decided by Madam Justice Sarah Pepall in March, 2004. You can read the trial decision here.

The trial ruling was interesting. The plaintiff, a 69 year old woman, claimed to have stumbled and fallen in the defendant’s parking lot. She broke her hip and then had a heart attack. Damages had been agreed to at trial, at slightly more than $100,000.

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Insurer Successfully Sues Its Defence Counsel for Trial Loss

Posted on February 7, 2006 by Stephen Cavanagh

In a case that may be of interest to LawPRO examiners as a possible harbinger of things to come in this country, an American insurer, dissatisfied with the outcome of a suit that it took to trial, has sued its defence lawyer. A jury awarded $362,000 to the insurer, Safestep Reinsurance Inc. The decision is indicative of increasing strains on the relationship between insurers and their law firms.

We have attached an article from Law.com’s “In House Counsel” column, describing the case. We hope you find it interesting.

(The decision is ironic in a number of ways but in particular, we note that one of the principal attacks on the defence lawyer was that he had spent too little time preparing for the trial of the original action!)

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Another C.A. Decision on “Ownership, Use or Operation”

Posted on February 3, 2006 by Stephen Cavanagh

Yesterday, the Court of Appeal dismissed the plaintiff’s appeal in Blight v. Axa and Royal & SunAlliance Insurance Company. Our firm acted for the successful respondent, Royal & SunAlliance. Royal insured a tenant and the issue was whether the policy covered the tenant for a fire that he had started while working on his car in the garage of a rented house. Blight, the owner of the house, was insured by the Co-operators, who were pursuing a subrogated claim against the tenants’ property insurer (Royal) and auto insurer (Axa), for the cost of the fire damage. Continue reading →

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15 Year “Absolute” Limitation Period Bars Claim for 1978 Negligence

Posted on February 1, 2006 by Stephen Cavanagh

York Condominium Corporation No. 382 v. Jay-M Holdings Ltd. et al. is the first case that we have seen that has interpreted the 15 year “absolute” limitation period found in s. 15 of the Limitations Act, 2002. There was no corresponding provision in Ontario law prior to the new Act coming into force on January 1, 2004.

Superior Court Justice John Ground held that s. 15 barred a claim against the City of Toronto that arose from alleged negligence in issuing a building permit in 1978. The decision clarifies the relationship between the discoverability principle and the “absolute” limitation period. Continue reading →

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Is Invasion of Privacy a Tort? Is There Insurance for It?

Posted on January 27, 2006 by Stephen Cavanagh

In our continuing effort to catch up on cases decided this month,  we would like to draw your attention today to an important ruling by Mr. Justice David Stinson, in Somwar v. McDonald’s Restaurants of Canada Ltd. 

This was a motion by the defendant McDonald’s, to dismiss an action for “invasion of privacy”. The issue was whether it was plain and obvious, that under the law of Ontario, invasion of privacy is not a tort, for which damages are recoverable. After a careful review of the law, Justice Stinson concluded that not only was it not clear that invasion of privacy cannot be tortious, but “the time has come to recognize invasion of privacy as a tort in its own right”. Continue reading →

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Self-Represented Litigant Receives Costs Award

Posted on January 26, 2006 by Stephen Cavanagh

In Cain v. Peterson,  Superior Court Justice Michael Dambrot has awarded costs of $10,000 to a self-represented defendant. After dismissing an action against Shelley Peterson (not, we assume, the spouse of former Ontario premier, David Peterson), Justice Dambrot first ordered the plaintiff to pay $35,000 to Ms. Peterson for legal fees that she had incurred before the trial began. He then addressed the issue of compensating Ms. Peterson for her own preparation and conduct of the trial.

His Honour ruled that, by having to participate in the trial, Ms. Peterson had suffered an “opportunity cost by foregoing remunerative activity” and that this warranted an award of costs for the trial even though, as a party, she would have been present at the trial anyway. Continue reading →

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