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Young child need not be examined for discovery.
On March 12, 2015, a judge of the BC Supreme Court dismissed a defense application to conduct an examination for discovery of an 8 year old plaintiff in a motor vehicle accident lawsuit. In Dann-Mills v. Tessier, 2015 BCSC 386, the plaintiff was injured involved in a serious motor vehicle accident when he was 17 months old, allegedly suffering a serious traumatic brain injury. A lawsuit was brought on his behalf by a litigation guardian. The defendants sought a court order compelling the child to undergo an examination for discovery. The...
read moreLife insurance claim denied for misrepresentations.
On March 3, 2015, the Nova Scotia Court of Appeal upheld the denial of a widow’s application for life insurance benefits following the death of her husband, the insured, because the insured had materially misrepresented his medical history in his application for life and disability insurance. In Linden Estate v. CUMIS Life Insurance Co., an insured applied for life and disability insurance. The application included a supplementary health questionnaire to be completed over the telephone. The questionnaire included questions...
read moreConsultation reports are not “expert reports”.
On February 3, 2015, the BC Court of Appeal released Reasons criticizing and restricting the practice of shoehorning physicians consultation reports into evidence as expert opinion. In Healey v. Chung the plaintiff was injured in a 2005 pedestrian/vehicle collision. At trial the plaintiff claimed it was a ‘catastrophic accident’ and sought damages between $485,000 and $1,037,000. The trial judge rejected much of the plaintiff’s evidence and awarded damages of just over $50,000. In the course of the trial the defendant introduced...
read more$120,000 for chronic pain, PTSD and depression.
In Luis v. Marchiori, 2015 BCSC 1, the plaintiff was involved in two collisions, the first in 2008 and the second in 2011. ICBC admitted fault for both defendants. The plaintiff sustained chronic injuries and in valuing non-pecuniary damages at $120,000 Madam Justice Gray provided the following reasons: [178] I would summarize the significant factors as follows: a) Ms. Luis is 49 years old; b) In the accidents, Ms. Luis suffered predominantly soft-tissue injuries which have led to painful shoulder surgery, chronic disabling pain in her neck...
read moreParties to a contract must be honest with each other.
In Bhasin v. Hrynew, 2014 SCC 71, the Supreme Court clearly stated that there is a duty to be honest in the performance of a contract. Mr. Bhasin, started an action after his relationship with Canadian American Financial Corp. (“Can-Am”) soured. Ultimately, Can-Am refused to renew the dealership agreement it had with Mr. Bhasin. Mr. Bhasin had acted as an enrollment director for Can-Am, which was in the business of marking education savings plans to investors (“ESPs”). Like all other enrollment directors...
read moreOrthopaedic exams have little value in chronic pain cases.
One of the more frustrating aspects of practicing in disability benefits law that that insurance companies repeatedly send claimants who have soft tissue, chronic pain injuries to orthopedic surgeons for “independent” medical examinations to determine their eligibility for certain benefits or the reasonableness of treatment plans. They are requested to perform these assessments even though they are typically outside their area of expertise. More often than not, the assessment finds “no objective evidence on ongoing impairment”,...
read moreMotor vehicle lessor liability cap confirmed.
On November 6, 2014, the BC Court of Appeal released an important judgment concerning the liability limit of motor vehicle lessors for accidents involving their lessees or drivers operating leased vehicles with the lessee’s permission. Background In British Columbia, the Motor Vehicle Act makes owners, lessees, and lessors of vehicles vicariously liable for accidents committed by drivers of leased vehicles. While a permitted driver or a lessee is liable for the full extant for any damages flowing from the accident, the Motor Vehicle Act...
read moreFailure to provide policy or application extends limitation period.
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 not awarding 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 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...
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