Surveillance prohibited during court-ordered medical examination.
On June 28, 2017, a judge of the BC Supreme Court prohibited a defendant from conducting video surveillance of a plaintiff who is compelled to attend a defence medical examination in a personal injury lawsuit. Rule 7-6(1) of the Supreme Court Civil Rules allows compulsory examinations where the physical or mental condition of a person is in issue in an action. For many years defendants, or their insurers, have used these examinations as opportunities to conduct covert surveillance of plaintiffs in personal injury and disability lawsuits. This practice was considered by...
read moreExpert evidence not needed if common sense prevails.
On June 23, 2017, the BC Supremc Court considered the use, and overuse, of expert evidence in personal injury litigation. Truax v. Hyrb, 2017 BCSC 1052, was an action arising out of a motor vehicle accident in which fault was at issue. The defendant brought an application seeking a dismissal of the lawsuit and argued that in failing to adduce expert engineering evidence an adverse inference should be drawn against the plaintiff. In rejecting this argument, Mr. Justice Dley provided the following comments about the role of expert evidence:...
read moreManulife pays 69 MILLION DOLLARS to shut down class action before trial.
After almost eight years of litigation, a securities class action against Canada’s largest life insurance company settled for $69 million. In Ironworkers Ontario Pension Fund v Manulife Financial, 2017 ONSC 2669, the Ontario court approved the payment of honoraria to the representative plaintiffs, the payment of class counsel contingency-based legal fees, and the payment of a preliminary commission to a third-party litigation funder. Background Manulife Financial Corporation (“MFC”) is the largest life insurance company in Canada. In early 2004, MFC added several new...
read moreInsurers must “avoid” obscure terms.
On April 20, 2017, Mr. Justice Kent of the BC Supreme Court ruled that vehicle damage arising from a lessee’s arson does not fall within the “conversion exclusion” clause in an ICBC Autoplan Optional Policy, and an innocent lessor may be entitled to coverage. CIT Financial Ltd. v. Insurance Corporation of British Columbia, 2017 BCSC 641, involved a coverage dispute for the alleged arson of a leased vehicle. The Court was asked to interpret the insured plaintiff’s insurance policy and, in particular, whether coverage for the fire damage to the vehicle was excluded...
read moreInsurer irrelevant testing denied by court.
On December 16, 2016, a judge of the Ontario Superior Court of Justice dismissed an application by an insurance company for an order compelling a disabled worker to undergo neuropsychological testing. The judge in Woolsey v. Industrial Alliance Insurance and Financial Services Inc., [2016] O.J. No. 6497, 2016 ONSC 7617, found that neuropsychological or cognitive function had not been put at issue and no treatment providers or experts had recommended it. The claimant was a disabled employee who alleged that he was unable to work as an engineering analyst due to neuropathic chest pain...
read more“Reprehensible conduct” not required for special costs.
On January 19, 2017, the BC Supreme Court ordered a long-term disability insurer to pay indemnificatory costs of a trial, after finding that it wrongly denied Noha Tanious her disability benefits. Ms. Tanious, who suffered from multiple sclerosis, obtained an order requiring the insurance company to pay her long-term disability benefits under a disability policy. At trial, the Court accepted that Ms. Tanious suffered a disability and had been unable to work since 2011. Ms. Tanious then brought an application seeking solicitor-client costs for the action. In allowing the costs award, the...
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