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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...
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 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...
read moreUsing articles cited in expert reports in evidence.
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...
read moreManulife tried to quash lawyer’s 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...
read moreICBC committed 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...
read moreInsurer to stand trial for claim handling practices.
On August 31, 2016, an Ontario judge ordered that a law suit against an insurance company, based on alleged mishandling of the insured’s mother’s accident benefit claim, is allowed to proceed. The judge found that it was not “plain and obvious” that the law suit was certain to fail. In Watkins v. Western Assurance Co., 2016 ONSC 2574, the insured’s mother was involved in a car accident when the insured was 15 years old. The insured was not present at the accident. The insured’s first law suit claimed damages arising out of...
read moreInsurer must produce internal manuals in bad faith claim.
On August 12, 2016, the Alberta Court of Queen’s Bench confirmed that in an action for bad faith denial of disability benefits the insurer must produce details of its internal claims handling procedures to the plaintiff. In Alexander v Sun Life Assurance Company of Canada, 2016 ABQB 445, the plaintiff conducted an examination for discovery of a representative of Sun Life who explained that Sun Life makes an online databank of reference material available to its case managers to assist them in performing their job duties. She further...
read moreICBC loses claim of privilege over surveillance.
On August 2, 2016, a judge of the BC Supreme Court reversed a master’s order as “an error in law” and ordered ICBC to provide an investigative report and video to the plaintiff, Desiree Nadine Oates. In Oates v. Burton, 2016 BCSC 1428, Ms. Oates was injured in a motor vehicle accident and sued for damages. After retaining a lawyer she applied for disability benefits from ICBC, following which ICBC ordered surveillance. In the context of her injury lawsuit, Ms. Oates sought production of the surveillance and the...
read moreA court won’t force a plaintiff to give “consent”.
On June 27, 2016, a master of the BC Supreme Court found that it is not appropriate for a Court to order a plaintiff to sign a consent form when attending a court ordered independent medical exam. In Gill v. Wal-Mart Canada Corporation, 2016 BCSC 1176, the plaintiff sued the defendant for personal injuries after a slip and fall incident. In the course of the lawsuit the plaintiff agreed to be examined by a physician of the defendant’s choosing but refused to sign a consent form the physician required. The defendant asked the Court to order...
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