Report from Montebello

Posted on November 29, 2005 by Stephen Cavanagh

Attachment pdf – Assessment of Damages and Costs This past weekend, the annual Civil Litigation Conference was held at Chateau Montebello, Quebec. The conference marked its twenty-fifth anniversary this year. It has become one of the premier continuing education programs for civil litigators in this province. Our own Heather Williams is one of the organizers and we are proud of her contribution. For the last several years, one of the features of the two-day conference has been a discussion of various fact situations by a panel of Superior Court judges. In the early years, the judges were simply asked to give their assessments of various heads of damages. At more recent conferences though, the judges have been encouraged to discuss what their philosophical approach would be to the fact situations. This year’s exchange yielded some interesting results in the areas of personal injury damages and costs. Continue reading →

Posted in Auto, Damages, Insurance News, Threshold | Comments Off on Report from Montebello

C.A. Says Motions Judges Shouldn’t Decide Difficult Questions of Law

Posted on November 23, 2005 by Stephen Cavanagh

In a decision released this afternoon, the Court of Appeal has taken a rather narrow view of the powers of lower court judges to decide legal issues prior to trial.

It is well-recognized, that motions judges may not decide factual issues, such as credibility, on motions for summary judgment. However, today’s decision goes much further. It suggests that motions judges also shouldn’t decide questions of law, unless the legal issue is already well-settled. But if the applicable law were so obvious, why would the parties need adjudication in the first place? Continue reading →

Posted in Practice and Procedure | Comments Off on C.A. Says Motions Judges Shouldn’t Decide Difficult Questions of Law

S.C.C. to Hear Costs Premium Case

Posted on November 18, 2005 by Stephen Cavanagh

Yesterday, the Supreme Court of Canada granted leave to appeal the Ontario Court of Appeal’s decision in Walker v. Ritchie, on the issue of a costs premium ordered to be paid by a defendant. The case arose out of a 1997 motor vehicle accident, in which the plaintiff suffered catastrophic injuries. At trial, damages were assessed at more than $5 million. In addition to costs of over $500,000, the defendants were ordered to pay a costs “premium” of $200,000.

(Clicking on the case name above will take you to the Supreme Court’s decision, granting leave to appeal. However, no reasons are given by the court for these rulings, so the link will not provide you with much information.) Continue reading →

Posted in Costs | Comments Off on S.C.C. to Hear Costs Premium Case

Insureds Ordered to Pay $1 Million in Costs After Jury Dismisses Bad Faith Claim

Posted on November 18, 2005 by Stephen Cavanagh

An Oakville couple has been ordered by an Ontario Superior Court Justice Kendra Coats to pay more than $1 million in costs after a jury dismissed their action against their insurer.

In DiBattista v. Wawanesa Mutual Insurance Company et al., the plaintiffs’ claim arose out of a fire at their home. The reasons for judgment (which deal with the award of costs) do not make the nature of the claim entirely clear, but it appears that the plaintiff insureds were dissatisfied with the way in which their home had been restored following the fire. (The reasons for judgment of Coats J. actually say that the claim was for “personal injuries arising from the alleged incomplete or negligent restoration” of the plaintiffs’ home, which is a rather unusual basis for claim.) Continue reading →

Posted in Costs, Insurance News | Comments Off on Insureds Ordered to Pay $1 Million in Costs After Jury Dismisses Bad Faith Claim

“Absolute Liability”? Not Quite

Posted on November 9, 2005 by Stephen Cavanagh

In Winch v. Kedgh, a case that will be of interest to automobile insurers, Mr. Justice Paul Perell of the Ontario Superior Court has ruled that an injured claimant had no recourse against a tortfeasor’s liability insurance policy, despite the “absolute liability” provisions of s. 258(4) and (5) of the Insurance Act, because of an exclusion in the policy. His Honour held that the absolute liability sections “take away some defences to a claim by a third party beneficiary that would be available to the insurer to defend a claim for indemnity by the insured. They do not take away all defences”. Continue reading →

Posted in Auto, Insurance News | Comments Off on “Absolute Liability”? Not Quite

Myofascial Pain Injury is Permanent, Important, but not Serious

Posted on November 9, 2005 by Stephen Cavanagh

An Ottawa Superior Court judge has dismissed a claim for personal injuries arising out of a 2000 motor vehicle accident, on the basis that plaintiff did not meet the Insurance Act “threshold”. The court was satisfied that the injury was “permanent” and that it affected an “important” function but concluded that the impairment was not “serious”.

In Page v. Primeau, Mr. Justice Gordon Sedgwick accepted that the plaintiff had developed myofascial pain syndrome as a result of a rear-end collision. At trial, the plaintiff’s evidence was that she was in constant, daily pain, ranging in severity between 4 and 8 out of a possible scale of 10. She claimed to be unable to do heavy lifting. Continue reading →

Posted in Auto, Insurance News, Threshold | Comments Off on Myofascial Pain Injury is Permanent, Important, but not Serious

Careless Smoking a Nuisance

Posted on November 3, 2005 by Stephen Cavanagh

We have attached a copy of the reasons for judgment in Kinsmen et al. v. Walker Estate, a decision of Mr. Justice Denis Power that was handed down last week. Our firm acted for the plaintiffs in this subrogated claim for damages arising out of a 1999 fire at an apartment building in Kingston. The decision addressed two issues that might interest you:

1. mental incompetence as a defence in a civil action; and

2. careless smoking and the law of nuisance. Continue reading →

Posted in Fires, Insurance News | Comments Off on Careless Smoking a Nuisance

Limitations

Posted on November 3, 2005 by Stephen Cavanagh

In St. Denis v. TD Insurance, decided on October 9, an Ontario Superior Court judge considered the one-year limitation period for theft claims in the standard Ontario auto policy. (The limitation, found in statutory condition 9, relates to claims for “loss or damage to the automobile or its contents”. It also appears in s. 259.1 of the Insurance Act.)

In this case, an action was started eight days after the expiry of the one-year limitation, as a result of inadvertence on the part of the plaintiff’s solicitor. The insurer moved for summary judgment, dismissing the claim as being out of time. (Interestingly, it appears that the solicitor argued the motion himself.) Continue reading →

Posted in Auto, Insurance News, Limitation Periods | Comments Off on Limitations

Plaintiff’s Lack of Credibility Taints Evidence of Medical Experts

Posted on October 17, 2005 by Stephen Cavanagh

In a decision released this afternoon, Mr Justice Geoffrey Morawetz dismissed a personal injury action alleged to have arisen from a motor vehicle accident. He found that the plaintiff had not established that her injuries met the threshold. His rather scathing rejection of the plaintiff’s testimony also led him to doubt the evidence of two well-known medical experts who testified on her behalf, but who had relied on her subjective complaints in arriving at their diagnosis. Continue reading →

Posted in Auto, Evidence, Insurance News, Threshold | Comments Off on Plaintiff’s Lack of Credibility Taints Evidence of Medical Experts

Insurer of a leased vehicle is entitled to subrogated against a driver who operates the vehicle without the proper licence

Posted on October 14, 2005 by Stephen Cavanagh

The Superior Court of Justice has held that an insurer of a leased vehicle is entitled to subrogated against a driver who operates the vehicle without the proper licence.

In Certas v. Strifler, the policy was issued to the lessee of the car. The lessee’s 19 year old daughter drove the vehicle with a G2 licence. One of the conditions of her licence was: “The number of passengers in the motor vehicle must not exceed the number of operable seat belt assemblies installed in it.” The daughter was involved in a single-car accident, while there were more passengers in the car than there were seat belts.

In this action, Certas sought to recover $23,110.50, which it had paid to the leasing company (presumably, for damage to the leased vehicle). Continue reading →

Posted in Insurance News | Comments Off on Insurer of a leased vehicle is entitled to subrogated against a driver who operates the vehicle without the proper licence