Legal Update
Bad Faith
Personal Injury
Insurance
Evidence
Most Recent Articles
Pension benefits not deducted from wrongful dismissal damages.
In a decision released in 2013, IBM Canada Limited v. Waterman (“Waterman”), the Supreme Court of Canada decided that an employee was entitled to keep his pension benefits as well as the full damages awarded to him for wrongful dismissal over the same period of time. Background After 42 years of service, and at the age of 65, Richard Waterman (“Mr. Waterman”) was terminated by IBM Canada Limited (“IBM”). He was only provided with 2 months notice. At the time of termination Mr. Waterman was entitled to a full pension pursuant to IBM’s defined...
read moreFailure to examine plaintiff diminishes weight of expert report.
It is well established that failure of an ‘independent medical examiner’ to physically examine a patient is not, in and of itself, a reason for an expert report to be inadmissible in the BC Supreme Court. However, when a litigant relies on such a report the weight the court attaches to it is often negatively impacted. Reasons for judgement released by the BC Supreme Court on December 31, 2013, demonstrate this. In Johal v. Meyede the plaintiff was injured in a 2010 rear end collision. Fault was admitted by the defendant. The plaintiff...
read more$140,000 for “very serious” femur fracture.
On August 29, 2013, the BC Supreme Court assessed damages for a serious femur injury and moderate wrist in jury. In Han v. Chahal the plaintiff pedestrian was injuries when she was struck by the defendant’s vehicle while walking in a marked cross walk. The defendant was found fully responsible for the crash. The plaintiff suffered a variety of injuries the most serious of which was a fractured femur. Although the Court found some issues with the plaintiff’s reliability as a witness the Court did accept the injury left her with a degree of...
read moreKnock down the house of cards.
On August 23, 2013 a judge of the Supreme Court of BC held that when opinion evidence is introduced into court the factual underpinnings upon which the opinion is based must be proven, otherwise the opinion evidence is of no value. In Paller v. Regan, 2013 BCSC 1672, the plaintiff was injured in a 2009 collision. ICBC admitted the defendant was at fault but disputed the collision caused any injuries. In support of their position they relied on an orthopaedic surgeon who never examined the plaintiff but provided an opinion that it was...
read moreOne judge’s clarity is another’s ambiguity.
On June 4, 2013, the BC Court of Appeal reversed a trial decision in McLean v. Canadian Premier Life Insurance, 2013 BCCA 264,and in an unanimous decision allowed the appeal and held that the insured was entitled to the $1 million benefit provided by the policy. The McLean appeal decision is an interesting example of how one judge’s clarity is another’s ambiguity. The trial judge found that “the words of the contract are clear and unambiguous” and held that the loss did not come within the policy terms. Specifically, holding that at the time...
read moreInsurer who honours policy may still breach the duty of good faith.
On February 25, 2013, the Ontario Court of Appeal substantially allowed an appeal from a lower court decision striking out numerous claims in a proposed class action relating to the sale and administration of four types of life insurance policies. In Kang v. Sun Life, 2013 ONCA 118, the Court of Appeal held that plaintiffs’ claims for breach of duty of good faith and fair dealing and for deceit and fraud were not mere reiterations of the plaintiffs’ claim for negligent and fraudulent misrepresentation and should be allowed to...
read moreEmployer ordered to pay $100,000 punitive damages.
On January 31, 2013, the British Columbia Court awarded an employee $100,000.00 in punitive damages as a result of the defendant employer’s conduct, which was found to be malicious and vindictive, in breach of its obligations of good faith and fair dealing in the manner in which the employee was terminated. The employer’s egregious conduct continued “unbroken” throughout the legal proceeding. The Court awarded punitive damages against the employer to punish, denounce, and deter future actions, which included: 1. The employer refused to pay...
read moreWhen a policy lapses, a new agreement must be made.
On January 11, 2013, the BC Court of Appeal decided in Khosah v. Canada Life Assurance Co. that where coverage under an original policy lapses in accordance with its own terms, the principles of contract formation, rather than contractual interpretation, may apply in determining whether a new policy has come into existence. The issue on appeal was whether the beneficiary’s deceased husband, the insured, obtained temporary insurance coverage from the insurer while the insurer processed the insured’s application for reinstatement...
read moreInsurer has 6 years to sue insured.
On November 28, 2012, in Sun Life Assurance Co. of Canada v. Catalano, [2012] B.C.J. No. 2566,British Columbia Supreme Court dismissed an application by an insured under a long term disability policy (“Catalano”) to dismiss an action by the disability insurer (“Sun Life”) seeking to recover insurance monies under a reimbursement agreement. The Court held that the applicable limitation period was six years. Catalano worked for Teck Cominco Metals Ltd. until February 2003. He became disabled and was provided long term...
read moreICBC’s expert given “very little weight” for failure to examine.
The failure of a doctor to examine a plaintiff is not, in and of itself, a barrier to the physician from providing opinion evidence to the BC Supreme Court. However, often little weight is attached to a doctor’s opinion in such circumstances. This was demonstrated in Rizzotti v. Doe, 2012 BCSC 1330, the plaintiff suffered psychological injuries in a serious collision in which the offending motorist died. At trial the plaintiff tendered expert evidence addressing the extent of her injuries. The defendant tendered a report from a psychiatrist,...
read more
