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Bad Faith
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“Inconsistent” jury award requires a new trial.
On November 26, 2015, a judge of the BC Supreme Court ordered a retrial in a personal injury lawsuit after a jury awarded special damages but denied the plaintiff damages for his non-pecuniary loss. In Harder v. Poettcker , 2015 BCSC 2180, the plaintiff requested a jury trial after suffering injuries in a motor vehicle accident. The jury found the plaintiff 85% at fault for the crash and awarded a total $5,100 in damages (all based on out of pocket expenses) and then awarded nothing for non pecuniary damages. After applying the split of...
read moreCourt of Appeal finds the insurer acted in bad faith.
On November 17, 2015, the Nova Scotia Court of Appeal upheld awards of both aggravated and punitive damages against a long-term disability insurer, but reduced the aggravated damages to $90,000, and reduced the punitive damages to $60,000, in Industrial Alliance v Brine, 2015 NSCA 104. On June 18, 2014, the Supreme Court of Nova Scotia held, at 2014 NSSC 219, that the long-term disability insurer Industrial Alliance Insurance and Financial Services Inc. (“Industrial”) must account for years of unfair treatment of its insured,...
read moreRequest for photos of plaintiff’s dancing dismissed.
On November 2, 2015, the BC Supreme Court dismissed a request for a plaintiff to produce various photographs. In Wilder v. Munro the plaintiff was injured in a 2010 collision and sued for damages. In the course of the lawsuit ICBC reviewed the plaintiff’s social media accounts and obtained: “ten separate videos of the plaintiff dancing in rehearsals or shows in 2013, 2014 and 2015, photographs of the plaintiff performing dance moves, Facebook status posts discussing upcoming dance shows and auditions in 2011, photographs and posts...
read moreManulife found guilty of fraudulent concealment.
A judge of the Alberta Court of Queen’s Bench found The Manufacturers Life Insurance Company (“Manulife”) guilty of fraudulent concealment in Atchison v. Manufacturers Life Insurance Company. The trial judgment is found at: Atchison v Manulife, 2002 ABQB 1121. Ms. Atchison’s husband was covered by a group life insurance policy with Manulife. He applied and paid for “excess” life insurance, in addition to his group coverage. The excess policy was issued, with coverage effective one month prior to his death...
read moreReport must include “all actual instructions received by the expert”.
On October 16, 2015, the Supreme Court of BC addressed the scope of expert instructions that need to be disclosed to make expert evidence admissible. In short the Court noted that a “paraphrased summary of instructions” was insufficient. In Pinch v. Hofstee, 2015 BCSC 1887, Mr. Justice Burnyeat noted that Rule 11-6(1)(c) requires the following: [1] The parties presented a number of expert reports. While some of the expert reports attached the instructions that were provided to the expert by counsel, some of the expert reports merely provided...
read moreSettlement documents from previous claim need not be produced.
On October 15, 2015, the BC Supreme Court addressed a request to produce documents relating to the settlement of a previous personal injury claim in the prosecution of a subsequent claim. In Gamble v. Brown, 2015 BCSC 1873, the plaintiff was injured in a 2009 collision, brought a claim for damages and ultimately settled. She was then injured in a 2011 collision. In the current lawsuit the defendant requested broad production of the previous file information including “any mediation brief, settlement letter, file memo, communication or similar...
read moreDelay not always a bar to a disability claim.
On September 21, 2015, the Ontario Court of Appeal upheld a lower court’s decision to grant relief from forfeiture in Dube v. RBC Life Insurance Company, 2015 ONCA 641. Gregory Dube worked for a Community Housing Corporation in Windsor, Ontario. As a full-time employee, Dube was insured by RBC Life Insurance Co. against the risk of suffering a long-term disability. The RBC policy required claimants to submit proof of their claim to RBC within 90 days from the start of their disability, but granted an extra year to submit proof of the...
read moreICBC punished for fraud allegation.
On September 18, 2015, a judge of the BC Supreme Court found that that unproven allegations of fraud can be used as a factor to minimize a successful party’s costs entitlement after beating a formal offer. In Gupta v. Doe the plaintiff was involved in three separate collisions and sued for damages. At trial the plaintiff was awarded just over $43,000. Priro to trial ICBC made several formal offers, the first at $90,000 and the last at $164,000. Having beaten their formal offer by a considerable margin ICBC asked for post offer costs. The...
read moreWorsening prognosis not enough to allow late DME.
On August 7, 2015, a master of the BC Supreme Court ruled that a plaintiff’s failure to recover from injuries is not enough for a defendant to secure a late defence medical exam. In Dzumhur v. Davoody, 2015 BCSC 1656, the plaintiff was injured in a a collision and sued for damages. In the course of the lawsuit the plaintiff served an expert report opining that the plaintiff ought to recover provided the injuries are responsive to recommended treatments. The defendant did not obtain a defence medical report and as the deadline approached for...
read moreSimple assertion of contemplated litigation doesn’t cut it.
On August 6, 2015, the BC Supreme Court effectively dismantled an ICBC claim for litigation privilege in Buettner v. Gatto. The plaintiff in that case was injured in a collision and advanced a claim for damages. The plaintiff retained counsel. Liability was initially admitted and then denied by ICBC. The plaintiff brought an application for production of various relevant documents and ICBC refused disclosure on the grounds that litigation was reasonably contemplated once the plaintiff retained counsel. The Court rejected this finding this...
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