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Travel insurer ordered to pay for emergency surgery.
On July 28, 2017, the Supreme Court of BC ordered an insurance company to pay for a British Columbia man’s emergency heart surgery while travelling. The court held, in Fletcher v. Royal & Sun Alliance Insurance Company of Canada, 2017 BCSC 1330, that the medical expenses Paul Fletcher incurred while outside of Canada were not excluded by the policy. The court made this finding after noting that Mr. Fletcher was advised by his treating physicians that: a) his condition was stable; b) he was safe to travel; and c) further...
read moreSurveillance 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...
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...
read moreManulife pays $69,000,000 to settle class action.
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...
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...
read more2nd defence medical exam denied.
On March 23, 2017, the Supreme Court of BC denied the defence request for an medical examination by a vocational psychologist due to the fact that the defence had a previous medical examination by a defence psychiatrist (from whom they had no ordered a report). In Baxter v. Shelton, 2017 BCSC 953, Master Keighley wrote: [6] …counsel for the defence determined to have a vocational rehabilitation assessment done and scheduled an appointment...
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...
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...
read morePunitive damages for failure to pay claim promptly.
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...
read moreHow 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...
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