Corrigendum on Branco Case

Posted on November 19, 2004 by Stephen Cavanagh

We have learned that yesterday’s Update on Branco v. Allianz erroneously referred to Allianz as the defendant. In fact, we now understand that Allianz was the AB carrier and although it had been a defendant originally, it was out of this litigation by 2003. The tort defendant that was successful at trial was “Epshtein”. Thanks to David Fournier of Allianz for alerting us to this.Also, some subscribers have had difficulty accessing the text of the decision. If you click on the hyperlink above, you will be taken to the case on the Internet. This particular decision has a lot of white space at the top of it, for some reason, but if you scroll down a ways, you’ll come to it.

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Plaintiffs Get Damages of $750, Costs of $21,000

Posted on November 18, 2004 by Stephen Cavanagh

This case, released today, is a bit of a head-scratcher.In Branco v. Allianz Insurance, the plaintiffs were claiming damages as a result of personal injuries suffered in a motor vehicle accident. The trial lasted eight days before Justice Siegel and a jury. The judge ruled that the claim met the threshold. The jury evidently had other ideas though, because once Insurance Act deductibles were taken into account, the net award of damages (to several plaintiffs!) totalled $750.00. (No, that decimal is not in the wrong place.) Continue reading →

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Important Costs Decision

Posted on November 16, 2004 by Stephen Cavanagh

The Court of Appeal today released its decision in Moon v. Sher , which can be viewed at:

http://www.ontariocourts.on.ca/decisions/2004/november/C40322.htm

We had been anticipating the release of this case, having learned a few weeks ago that Justice Borins of the Court of Appeal was in the course of preparing a comprehensive discussion of the law of costs. Today’s decision is presumably it. Continue reading →

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Investigator’s Contact with Plaintiff Fatally Taints Evidence

Posted on November 9, 2004 by Stephen Cavanagh

In Cowles v. Balac, released November 4, 2004, Justice MacFarland of the Ontario Court deals with a problem that we have encountered from time to time: an investigator making direct contact with a plaintiff who is represented by counsel.

The reasons can be viewed at:

http://www.canlii.org/on/cas/onsc/2004/2004onsc12506.html.

The case is an unusual one, to begin with, in that it arises out of an attack by a tiger which appears to have occurred here in Ontario. Continue reading →

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Latest “Duty to Defend” Case

Posted on November 8, 2004 by Stephen Cavanagh

In A.R.G. Construction Corp. v. Allstate Insurance Co., Mr. Justice Ferrier of the Ontario Superior Court has provided an up-to-date review of the law pertaining to duty to defend, particularly in the context of a CGL policy. The decision can be viewed at: http://www.canlii.org/on/cas/onsc/2004/2004onsc12488.html .

The case doesn’t break much new ground, but does contain a rather detailed summary of the law in the area, including reference to many of the major cases, including Alie v. Bertrand, Monenco v. Commonwealth and Lloyd’s v. Scalera. Continue reading →

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C.A. Interprets “Other Insurance” Clause to Make Auto Policy Primary

Posted on November 4, 2004 by Stephen Cavanagh

The Court of Appeal today released an interesting decision, dealing with the interaction of three policies: auto, boat and homeowner’s. In Axa Insurance v. Dominion of Canada (the reasons can be viewed at http://www.ontariocourts.on.ca/decisions/2004/november/C40387.htm), the underlying litigation arose from a bungee cord that had been used to secure the load on a boat that was about to be towed by a car. The bungee cord became dislodged and injured a bystander. The owner of the boat and the car had three insurance policies with three separate insurers. The issue in this case was, which of the three policies was obliged to respond to the claim?The homeowner’s policy was held not to be triggered, because of an exclusion. Thus, the dispute came down to the auto and the boat insurers. Continue reading →

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Leave to Appeal Refused in Russett v. Bujold

Posted on November 3, 2004 by Stephen Cavanagh

You may recall the decision of Mr. Justice Denis Power in Russett v. Bujold, in which he assessed partial indemnity costs of more than $400,000 in a chronic pain case that had settled after a week and a half of trial, for $435,000.

The award of costs included a premium of $25,000 and payment in full for almost 1,436 hours of time spent by the plaintiff’s solicitor.

The defendant in the action sought leave to appeal the costs award to the Court of Appeal. But this morning, the Court of Appeal refused leave. So, the decision stands.

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Important “Crumbling Skull” and Threshold Decision

Posted on October 14, 2004 by Stephen Cavanagh

In a decision handed down yesterday, Ottawa judge Madam Justice Giovanna Toscana Roccamo awarded damages of more than $700,000 to two chronic pain plaintiffs. The case is Hartwick v. Simser. The 63 page decision of Madam Justice Toscana Roccamo will be of great interest to those handling auto BI claims because it deals with a number of issues that commonly arise in chronic pain cases.

But the case also effects a dramatic departure from the way in which Ontario courts have interpreted and applied the well-known (some would say “notorious”) Supreme Court of Canada decision in Athey v. Leonati. The approach endorsed here is very favourable to the defence.

(It is worth pointing out that prior to her appointment last year, the judge was a respected member of both the plaintiffs’ and defence personal injury bars in Ottawa. She is also a co-author of the Carswell text, Personal Injury Actions.)
The plaintiffs were a mother and daughter who were injured in a rear-end collision between two trucks. The accident took place in 1999. At that time, the mother (Karen Hartwick) was 35 and her daughter Krista was 11.

Liability was admitted. The collision was found to have been a “serious one”, with an impact speed of about 80 kph, resulting in both trucks being written off.

The claims of the two injured plaintiffs were based on allegations of chronic pain. The principal defences were threshold and causation (“crumbling skull”).

Both plaintiffs had had some pre-accident health issues upon which the defence relied. In the case of the mother, these included anxiety disorder, some musculoskeletal complaints and migraines. The court found that during the two year period preceding the accident, the problems had consisted mostly of anxiety manifested in various sorts of physical complaints.

Krista’s pre-existing problems were similar in some respects to those of her mother: migraines, anxiety, arthritis. Depression had also been diagnosed by her family physician.

Madam Justice Toscana Roccamo’s reasons for judgment contain an extensive review of the medical evidence (including that given by various defence experts), which is not summarized here.

Continue reading →

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“Victims’ Bill of Rights” Not Applied in MVA Case

Posted on September 17, 2004 by Stephen Cavanagh

Ever heard of the Victims’ Bill of Rights? Neither had counsel for the plaintiff in Pilon v. Janveaux, an action arising out of a 1993 MVA. One of the provisions in that Act can have a big effect on awards of costs in civil suits. It ended up not doing so here, but you should be aware of what can happen.

In this case, the defendant driver was convicted of impaired driving causing bodily harm. Following the trial of the ensuing civil action brought by an injured passenger, the judge ordered that the plaintiff recover partial indemnity costs up to a certain date. At some point, plaintiff’s counsel became aware of s. 4(6) of the Victims’ Bill of Rights, 1995, an Ontario statute which says:

A judge who makes an order for costs in favour of a victim shall make the order on a solicitor and client basis, unless the judge considers that to do so would not be in the interests of justice. Continue reading →

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SABS Insurer Examination Doesn’t Preclude IME

Posted on September 10, 2004 by Stephen Cavanagh

Ottawa Case Management Master Robert Beaudoin recently clarified the law relating to the effect that an insurer examination under the SABS has on the right to an IME under s. 105 of the Courts of Justice Act .In La Forest et al. v. De Vouge, Federation Insurance et al.(http://www.canlii.org/on/cas/onsc/2004/2004onsc12088.html), the plaintiff was injured in a car accident. He sued the tortfeasor in negligence and also sued his accident benefits insurer, Federation Insurance. The plaintiff settled the tort claims, leaving only the AB claim to be litigated. Continue reading →

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