Insurer 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...

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“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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Punitive damages ordered for slow payment.

On January 16, 2017, the Ontario Superior Court of Justice assessed punitive damages against an insurance company for its failure to pay a property claim in timely fashion in  J.I.L.M. Enterprises & Investments Ltd. v. INTACT Insurance, 2017 ONSC 357. The insured brought an action for damages against its property insurer with respect to a fire which partially destroyed the insured’s hotel and restaurant building. No payment was made under the policy until almost three years after the fire. The insurer paid its calculation of the actual cash value of the building and one year later paid...

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How to use articles cited in expert reports.

On September 19, 2016, a judge of the BC Supreme Court held that articles cited in expert reports are not “evidence”. However, the judge went on to outline how these documents may be used at trial. In Cambie Surgeries Corporation v. British Columbia, 2016 BCSC 1739, the plaintiffs, who are suing the government of BC in the basis that certain Provincial health-care laws are unconstitutional, sought to introduce into evidence several articles and texts cited by their expert witnesses. Mr. Justice Steeves set out the limits and procedural use of such documents: 11]         It...

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Manulife tried to quash website, and lost.

“… there is public benefit in having Mr. Fishman at liberty to act in litigation adverse to Manulife…” – David Allsebrook, CIRA panelist, September 16, 2016 After losing a protracted court application to disqualify me from acting against them on behalf of one of my clients, The Manufacturers Life Insurance Company (“Manulife”) then tried unsuccessfully to limit my ability to advertise the fact that I am able to represent people with claims againts Manulife. Following Manulife’s failed application in McMyn v. Manufacturer’s Life Insurance Company, 2015 BCSC 2205, I...

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Filing inconsistent pleadings is an “abuse of process”.

On August 31, 2016, a judge of the BC Supreme Court criticized a long-standing ICBC tactic and declared a mistrial. Madam Justice Gropper found that is is an abuse of process for a defendant sued by multiple parties from a single motor vehicle accident to admit liability in one lawsuit but deny in the other “where there are no facts to distinguish the two”. In Glover v. Leakey, 2016 BCSC 1624, the defendant was involved in an accident which injured two passengers. One passenger sued, liability was admitted by ICBC, and the case settled. The second passenger sued and liability was denied....

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