Privileged Engineer’s Report Producible in Subsequent Litigation

Posted on July 26, 2004 by Stephen Cavanagh

A recent decision of the Ontario Superior Court raises an issue that is of increasing concern to insurers: the loss of litigation privilege.

In Podeszwa et al and D. Preete et al and the Corporation of the City of London, the court held that an engineering report, privileged in one lawsuit, had to be produced to the opposing parties in a second action, following settlement of the first suit. The court said: “whereas solicitor and client privilege protects confidential matters between solicitor and client forever, litigation privilege protects a lawyer’s work product until the end of the litigation”. Continue reading →

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Employer/Owners No Longer “Protected Defendants”?

Posted on July 1, 2004 by Stephen Cavanagh

Happy Canada Day à tout le monde!We wish we could be the bearers of more cheerful news on this festive day. In an important decision, a judge of the Superior Court has just ruled that the Insurance Act does not exempt an employer from vicarious liability for the negligent operation of a motor vehicle by an employee. In Vollick v. Sheard and Atherley Towing, which can be viewed at http://www.canlii.org/on/cas/onsc/2004/2004onsc11564.html, Justice Alan Bryant held that “Bill 59 does not immunize the vicarious liability of the employer for the acts of its employee in the operation of the tow truck”. (Justice Bryant is a former law professor at the University of Western Ontario and co-author of the leading Canadian text on the law of evidence.) Continue reading →

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C.A. Finds No Duty to Defend “Advertising Injury” Claim

Posted on June 16, 2004 by Stephen Cavanagh

We are especially pleased to bring you today’s Update. Minutes ago, the Court of Appeal released its decision in PrairieFyre Software v. St. Paul Fire and Marine, in which our firm acted for St. Paul.

The case dealt with the duty to defend under “advertising injury” coverage in a CGL. The court found that although that coverage includes “copyright infringement” as a covered “offence” and even though the statement of claim in the underlying action did allege “copyright infringement” against the insured, there was no coverage for the claim. The reason was the absence of the requisite causal connection between the alleged copyright infringement and the insured’s advertising activities.

Claims based on “advertising injury” coverage have been rare in Canada so far, but numerous in the United States, particularly in the high tech business. Today’s decision will, we think, assist in keeping that coverage from being extended beyond its intended purpose.

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SABS Must Be Repaid Before Settlement Can Be Rescinded

Posted on June 8, 2004 by Stephen Cavanagh

A Superior Court decision released today has confirmed that an insured seeking an order setting aside a settlement of accident benefits must first repay money paid pursuant to the settlement.

In Lindsay v. Martin, the text of which can be accessed at http://www.canlii.org/on/cas/onsc/2004/2004onsc11375.html, the insured had settled his claim for accident benefits with York Fire and Casualty Insurance. The amount was $10,000. The insured did not obtain legal advice about the settlement. It was also alleged that he lacked mental capacity to enter into the settlement.

Justice Douglas Belch was critical of York, denying it costs because of a “failure to use common courtesy and respond to numerous requests of the plaintiff for information”. He also noted that the provisions of the legislation result in an impecunious insured facing “a Herculean task” in rescinding a settlement. But he agreed with York’s submission, that the amendments to Regulation 664 make it mandatory that settlement funds be returned to the insurer as a condition precedent to rescission of a settlement of SABS. Accordingly, the insured’s action against York was stayed pending repayment of the settlement monies.

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Reasons for Rejecting Treatment Plan Need Not Be Detailed

Posted on June 7, 2004 by Stephen Cavanagh

In Pereira v. Coseco Insurance, released last month, an Ontario Superior Court judge stayed the insured’s lawsuit pending her attended for a DAC assessment. The reasons for judgment can be viewed at http://www.canlii.org/on/cas/onsc/2004/2004onsc11180.html

The claim related to med-rehab benefits. The insurer had refused to pay for the claimant’s treatment plan and exercised its right to have the insured undergo a DAC assessment. Continue reading →

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Chronic Pain Costs Award Tops $430,000

Posted on June 4, 2004 by Stephen Cavanagh

Justice Denis Power has just released his final costs award in Russett v. Bujold and we have attached a copy. You may recall this case from an Update that we circulated several weeks ago. It involved a chronic pain claim and was settled after about a week and a half of trial, for $435,000, exclusive of costs.

Justice Power’s first set of reasons detailed his approach to the award of costs. As we have described in our earlier Update, the factors that he took into account included (quoting from the judgment) “the Defendants’ unreasonable position on liability; the challenge to the Plaintiffs’ credibility; the Defendants’ position on causality with respect to Ms. Russett’s chronic pain; and the fact that the Defendants knew that Ms. Russett did not have sufficient funds to maintain expensive litigation”. Continue reading →

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Auto Deductible to be Taken Into Account for Rule 49 Offers

Posted on May 25, 2004 by Stephen Cavanagh

In its May 11, 2004 decision in Wicken v. Harssar, the Divisional Court has clarified s. 267.5(9) of the Insurance Act.

That section of the Act deals with the effect of the deductibles on costs. It provides that “In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the determination of a party’s entitlement to costs shall be made without regard to the effect of paragraph 3 of subsection (7) on the amount of damages, if any, awarded for non-pecuniary loss.” Continue reading →

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C.A. Finds Social Host Liability May Still Exist

Posted on May 19, 2004 by Stephen Cavanagh

The Ontario Court of Appeal has concluded that the hosts of a 1998 Ottawa New Year’s Eve party which resulted in a tragic accident are not liable to the woman who was injured in a car accident caused by an impaired party guest. The decision can be viewed at: http://www.ontariocourts.on.ca/decisions/2004/may/childsC38836.htm

However, the Court of Appeal specifically stated that its decision should not be interpreted as meaning that so-called “social hosts” are immune in all cases from liability to innocent third party users of the road for damages caused by impaired guests who drive cars. The Court said that a decision with respect to the existence of social host liability should not be made in a vacuum but only in a factual context. Continue reading →

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Surveillance Video Does Not Contravene PIPEDA

Posted on May 7, 2004 by Stephen Cavanagh

An Ontario Superior Court judge has rejected an argument, made by a plaintiff in a medical malpractice action, that surveillance video should not be received in evidence at trial because it contravened the Personal Information Protection and Electronic Documents Act (“PIPEDA”). That legislation came into force in Ontario on January 1, 2004. So far as we know, this is the first case in which an Ontario court has considered its effect on surveillance. The case is a decision of Justice Fletcher Dawson in Ferenczy v. MCI Medical Clinics and Weinstein.

The action arose out of treatment of a ganglion cyst on the plaintiff’s wrist. The defendant Weinstein, a physician, was defended by the Canadian Medical Protective Association (“CMPA”). Prior to trial, CMPA had retained a licensed private investigator to conduct surveillance on the plaintiff. Continue reading →

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Additional Insured Not Liable for Unpaid Premium

Posted on April 29, 2004 by Stephen Cavanagh

The Ontario Court of Appeal has just released its decision in McMynn v. Lombard General Insurance, a copy of which we attach.

Although the amount of money at stake in the case was relatively modest ($33,271.44), the case is of some interest because it involves “additional named insured” status, which is of growing importance in the worlds of insurance and commerce.

In this case, the named insured leased some buses from a couple named “McMynn”. One of the terms of the lease obliged the lessee (“Maple Rhodes”) to insure the buses and to name McMynn (the lessor) as an additional named insured. Continue reading →

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