Two new decisions deal with “Privilege”

Posted on October 13, 2005 by Stephen Cavanagh

Two Superior Court decisions released this afternoon contain some interesting observations with respect to the law of privilege. (Admittedly, some of our subscribers might quarrel with the juxtaposition of the adjective, “interesting”, with the phrase, “law of privilege”.)

Before we get to those cases though, a word of apology to those who have recently been trying to have themselves added to our mailing list. We experienced some technical problems for a time, which delayed a response to these requests. However, the issues have now been resolved and our list is up to date.

Back to today’s cases. In Autosurvey v. Prevost et al., Mr. Justice Michael Quigley was confronted with a very unusual problem, but perhaps one that will materialize more often in future, as electronic storage of documents becomes more widespread. Continue reading →

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Contributory Negligence

Posted on September 27, 2005 by Stephen Cavanagh

In Snushall v. Fulsang, released today, the Court of Appeal discussed the appropriate treatment of contributory negligence in an MVA case, based on a plaintiff’s failure to wear (or to wear properly) a seatbelt.

The jury in this case had assessed contributory negligence of 35 percent. The trial judge had suggested a range of 5-25%, but instructed the jury that it was free to make its own assessment (which it did).

The Court of Appeal reviewed caselaw from this country and the United Kingdom and concluded that juries should not be given this degree of latitude. Instead, they should be limited to a range of 0-25% for contributory negligence related to seatbelt use.

Interestingly, the C.A. said that the high end of the range (25%) should only be applied in those cases “where the jury is satisfied that substantially all the damages could have been prevented by wearing a seatbelt” [emphasis added].

The Court made it clear, that “even in a case where the evidence establishes that 100% of the damages would have been prevented by wearing a seatbelt, the jury is not free to find that the plaintiff’s damages should be reduced by 100%.  The defendant, as the tortfeasor, must bear most of the responsibility.” 

 

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Insurer Can’t Subrogate Against Additional Insured, Even Under Separate Policy

Posted on September 23, 2005 by Stephen Cavanagh

In Lacombe v. Phillips et al., Master Robert Beaudoin has ruled that an insurer cannot subrogate against an entity named as an “additional insured” in one of its policies, even when the payment sought to be recovered was made under a different policy than the one naming the “additional insured”. The Master held that the “anti-subrogation” rule, preventing an insurer from suing its own insured, applied to bar the claim. Our firm acted for the successful party.

The Lacombes were homeowners, insured with Aviva. In 2003, fuel oil leaked at their property, resulting in damage of more than $200,000. Aviva paid the Lacombes for the damage and then sued the contractor whom the Lacombes had hired to replace their furnace. The contractor had, in turn, hired a subcontractor and he was also named as a defendant in the subrogated action. The claim sought reimbursement of Aviva’s payment to the Lacombes, on the basis of negligence by the contractor or subcontractor. Continue reading →

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Insurer Liable for Insured’s Entire Defence Costs Although Only One Small Part of Claim Covered

Posted on July 25, 2005 by Stephen Cavanagh

In ARG Construction Corp. v. Allstate, a decision released last week, Justice Lee Ferrier of the Ontario Superior Court of Justice ruled on the apportionment of defence costs in an insurance dispute arising out of a construction claim. He held that the insurer of a contractor was liable for the entire amount of the contractor’s defence costs in the underlying litigation, even though only a very small part of that claim was within the policy coverage.The name of the case may ring a bell with some readers. Last week’s ruling was the second set of reasons released by Ferrier J. in this case. Last November, he wrote a judgment dealing with the duty to defend owed to the plaintiff by its insurer. The recent decision is a sequel, dealing with one issue that was not determined last November.The case is instructive on several points. In order to understand the second decision though, it is necessary to review briefly Justice Ferrier’s decision of November, 2004. Continue reading →

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Cohabiting

Posted on July 19, 2005 by Stephen Cavanagh

Justice David Little’s ruling in Stephens v. Stawecki makes it clear that, in determining whether a couple has “cohabited continuously for a period of not less than three years”, so as to make them “spouses” under s. 61 of the Family Law Act, the date on which they began to live in the same residence is only one factor to be considered. This claim arose out of a motor vehicle accident. A woman sought damages under s. 61 of the FLA , for the death of the man whom she said had been her “spouse”. The couple was not married. But s. 29 of the FLA contains an extended definition of “spouse” that includes “either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years”. Section 1(1) of the Act says that “cohabit” means “to live together in a conjugal relationship…” The accident happened on May 6, 2003 and the couple had not begun to live in the same residence until January, 2001. At first blush, it would not appear that these facts would bring the plaintiff within the FLA definition. A requirement that the couple “live together” for a period of “not less than three years” would, one might think, make the relevant date May 6, 2000 (three years before the date of the accident). But Justice Little ruled that the plaintiff had been a spouse of the deceased and was entitled to claim. He reasoned that even though the plaintiff had maintained a separate residence prior to January, 2001, the couple had “slept, shopped, gardened, cooked, cleaned, socialized, and lived together as a couple and were treated as such by their friends, family and neighbours”. Justice Little assessed the plaintiff’s damages for loss of care, guidance and companionship at $70,000.

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C.A. Says Its 2001 Decision in McNaughton v. Dominion Was Wrong

Posted on June 15, 2005 by Stephen Cavanagh

In David Polowin Real Estate Co. v. Dominion of Canada, released today, the Court of Appeal took the unusual step of reversing one of its own decisions. Not only that, the judge who wrote today’s decision (Justice John Laskin) was a member of the panel that had made the earlier ruling. The previous case (decided in 2001) was McNaughton v. Dominion of Canada. It involved an interpretation of statutory condition 6(7) in a standard automobile policy. The question before that Court was: “where a car is damaged beyond repair and the insurer elects to take title to the salvage, is the insurer entitled to reduce its payment to its insured by the amount of the deductible in the policy?” The answer in 2001 was “No”. Continue reading →

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Service of Expert’s Report Waives Litigation Privilege on File Material

Posted on June 14, 2005 by Stephen Cavanagh

A Superior Court judge today dealt with a question that arises frequently in civil litigation: to what extent must “the findings, opinions and conclusions of an expert” be disclosed to an opposing party prior to trial? In Lecocq Logging Inc. v. Hood Logging Equipment Canada Inc., the plaintiff obtained several reports from an expert named (believe it or not), “Leier”. The reports dealt with the cause of a fire in a piece of logging equipment. One report pre-dated the issuance of the statement of claim, while three others were dated later. Continue reading →

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Another C.A. Ruling on Operation and Use of Automobile

Posted on June 7, 2005 by Stephen Cavanagh

An embarrassment of riches. The Court of Appeal has released a second decision this afternoon which deals with almost the identical issue as did Herbison v. Lumbermens. In Vytlingam v. Farmer, the underlying claim arose from a boulder having been dropped from an overpass and injuring a passing motorist. This took place in the United States . Continue reading →

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C.A. Takes Latest Shot in Ownership, Use, Operation of an Automobile Debate

Posted on June 7, 2005 by Stephen Cavanagh

This afternoon, the Court of Appeal released its decision in Herbison v. Lumbermens Mutual Casualty. The Court allowed the claimant’s appeal and ruled that an auto insurer, Lumbermens, was obliged to indemnify its insured (“Wolfe”) against the tort liability he had incurred by accidentally shooting Herbison, believing the latter to be a deer. Herbison had been illuminated by the headlights of the insured automobile and Wolfe’s (the insured’s) evidence was that he would not have fired his rifle, had the headlights not lit what he believed to be a white-tail deer. This litigation is well-known in eastern Ontario . It has progressed through several trials and motions for summary judgment. Local lawyers having been hearing about the latest developments at seminars for several years now. Continue reading →

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CPP Benefits Held Deductible from Income Loss Damages

Posted on May 30, 2005 by Stephen Cavanagh

In Meloche v. McKenzie, a decision of Mr. Justice Terrence Patterson, it was held that CPP disability benefits are deductible from an award of damages for pre-trial income loss in a Bill 59 motor vehicle case. It was also ordered that future CPP benefits were to be held in trust for the tort defendant.

The rationale for the deduction was that CPP disability benefits were “tied to a recipient’s inability to engage in the act of gainful employment. In other words, as a result of a loss of earning capacity.” Continue reading →

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