Legal Update
Bad Faith
Personal Injury
Insurance
Evidence
Most Recent Articles
Limitation period extended by insurer’s failure to provide policy or application.
On November 4, 2014, the Ontario Superior Court of Justice found that an application for long-term disability benefits under a policy issued to his employer, submitted two and a half years after the deadline, was not submitted out of time because the insured had not been provided with the policy or claims documents by his employer. In Nguyen v. SSQ Life Insurance Co., 2914 ONSC 6405, the insurance company made an application to dismiss Mr. Nguyen’s claim for long-term disability benefits under a group policy issued to his employer, on...
read moreJury verdict “perverse” for denying damages.
On October 1, 2014 the BC Supreme Court, New Westminster Registry, ordered a retrial following a “perverse” jury finding in Kasli v Gill, 2014 BCSC 1833. The plaintiff was injured in a motor vehicle collision. A jury found both parties equally to blame and, after factoring the liability split, awarded the plaintiff $10,000 for past wage loss and special damages. The Jury awarded nothing for non-pecuniary loss. Mr. Justice Weatherill ordered a new trial and in doing so provided the following reasons: [23] While the court...
read moreDelaying payment of LTD benefits may be bad faith.
On September 17, 2014, the British Columbia Supreme Court refused to summarily dismiss an insured’s claim against the insurer and adjuster for breach of contract and the duty of fairness and good faith; however, the insured’s claims against the adjuster for inducement of breach of contract and interference with contractual relations were dismissed. In Frank v. Kalokina, 2014 BCSC 1866, the insured’s application for long-term disability benefits was denied by the adjuster for five months after the time of her claim. The insured alleges that in...
read morePunitive damages for denied LTD benefits upheld on appeal.
On March 22, 2013, an Ontario judge ordered an insurer to pay $100,000 in aggravated damages and $200,000 in punitive damages after finding that the insurer had wrongfully denied its insured long-term disability benefits. In Fernandes v. Penncorp, 2013 ONSC 1637, the Honourable Justice Peter Hambly ordered Penncord Life Insurance Company to pay the damages to an injured employee. Facts The facts of the case are rather straightforward. The plaintiff was a bricklayer who had his own company. That company was profitable and had employees. When...
read moreMediation discussions not always confidential.
On May 8, 2014 the Supreme Court of Canada carved out an important exception to the promise to keep mediation discussions confidential. Companies and their insurers rely on private mediators to settle lawsuits partly because what is discussed at mediation stays confidential. This ensures that business strategy stays under wraps and public scandal for mistakes is avoided. In 2011, Bombardier and Union Carbide tried to settle a decade-long $32,000,000 court battle through mediation. In 1997, 1998 and 2003, Bombardier bought gas tanks from Union...
read moreIs there a duty to take cannabis?
A 2014 judgment of the Supreme Court of British Columbia illustrates just how far the debate has swung on the issue of marijuana as medicine. The judgment of Gelsby v. MacMillan (March 4, 2014, BC Supreme Court) was a routine personal injury case in many respects. The plaintiff, Jessica Glesby was injured in a motor vehicle accident, suffered various injuries, and went to trial on the issue of the “assessment of damages” (how much money would she receive for her injuries). The arguments raised by both parties were for the most part not out of...
read moreDid Manulife make “deliberately false” statements?
On January 16, 2014, the Ontario Superior Court of Justice rejected an application by Manulife Financial to dismiss the action against it in Sells v. Manulife, 2014 ONSC 715. The judgment is found at: Sells v Manulife, 2014 ONSC 715. The plaintiffs in this action are former agents of Manulife. Their essential claim for their damages against Manulife is that Manulife made very serious but false and misleading statements regarding the plaintiffs’ work and practices while with Manulife which Manulife knew or ought to have known would make it...
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 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 more
