C.A. Decision May Expand Liability of Municipalities

Posted on March 18, 2004 by Stephen Cavanagh

The Court of Appeal has just released its decision in Ouellette v. Town of Hearst and we attach a copy of the decision. This is an important case that interprets certain provisions of the former Municipal Act, limiting the right to sue municipalities for, among other things, failing to maintain a highway. That three month limitation period that appeared in the former Municipal Act (and in its successor, until the enactment of the Limitations Act, 2003) has been watered down somewhat as a result of this afternoon’s decision. Even though it is no longer in force, as of January 1, 2004, there are still many ongoing lawsuits stemming from accidents that occurred while the provision was in force. Continue reading →

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Benefits for Home Renovations Alllowed by Superior Court

Posted on March 16, 2004 by Stephen Cavanagh

We have attached a copy of a recent decision of the Ontario Superior Court that will be of interest to those dealing with accident benefits claims. The case is Alfred v. Allstate. The name might be familiar to you, as there was a FSCO arbitral decision in this same case back in 1999. Both cases dealt with the issue of entitlement to benefits for home modifications. Continue reading →

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Premiums on Costs

Posted on March 3, 2004 by Stephen Cavanagh

Attached is a decision handed down last week, dealing with an issue that is (or should be) of growing concern to insurers: premiums on costs.

In Walker v. Ritchie, Ontario Superior Court judge Brockenshire awarded a costs premium of $200,000 to the successful plaintiffs’ lawyers. This was in addition to an award of over $500,000 for partial indemnity costs. The costs were given in a personal injury case that was tried in 2002 over four weeks and that culminated in a judgment of more than $5 million. Continue reading →

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Defence Contact with Plaintiff’s Treating Physician

Posted on December 3, 2003 by Stephen Cavanagh

It has come to our attention that some recipients of our newsletter have been receiving, in the last several messages, the text of an earlier update. We apologize for this. Below is the text that should have accompanied today’s update.

We are attaching a copy of an interesting decision by Mr. Justice Ferguson of the Ontario Superior Court in Burgess v. Wu. Although the decision, handed down on Monday of this week, arises out of a medical malpractice action, it addresses some issues that are important in any litigation in which the health of the plaintiff is an issue.

In this case, the plaintiffs were the daughter and widow respectively of Ernest Burgess. Mr Burgess committed suicide and the plaintiffs sued his family physician, Dr. Wu, claiming that the physician’s negligence had caused the suicide. Specifically, it was alleged that Dr. Wu had been negligent in prescribing Seconal to Mr. Burgess, which medication was taken in overdose, leading to Burgess’ death. Continue reading →

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SABS Loophole Upheld

Posted on November 17, 2003 by Stephen Cavanagh

The Court of Appeal has refused to correct an anomaly in the Statutory Accident Benefits Schedule, despite finding that it resulted from an error made in drafting the Insurance Act regulation. We attach a copy of the decision in Beattie v. National Frontier , released on Friday of last week.

The claimant was seriously injured in an accident and was eventually convicted of dangerous driving. The insurer, National Frontier, took the position that because of s. 30(4) of the SABS, the criminal conviction relieved it of any obligation to pay income replacement and various other types of benefits. Section 30(4) reads as follows: Continue reading →

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Catastrophic Impairment; Discoverability in Fatal Accident Cases

Posted on May 1, 2003 by Stephen Cavanagh

This edition of Update includes:

  • a case that deals with the determination of “catastrophic impairment” in the context of automobile insurance; and
  • “discoverability” in a fatal accident claim. Continue reading →
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Absolute Liability Applies Even Where Injury Caused Intentionally

Posted on April 29, 2003 by Stephen Cavanagh

The Court of Appeal has just released a decision that is important to anyone working in the area of automobile tort litigation. The case is Joachin v. Abel. The plaintiffs in that case had been injured when the defendant Abel intentionally struck them with an automobile insured by Halifax (as it then was). In an earlier ruling in this action, a court had held that s. 118 of the Insurance Act (which provides that there is no right of indemnity in the case of a criminal act) meant that Halifax did not have to defend or indemnify Abel in relation to the plaintiffs’ claims. Continue reading →

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