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Punitive damages for denied LTD benefits upheld on appeal.

Posted by on Sep 2, 2014 in Bad Faith, Legal Update | 0 comments

Punitive 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...

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Defence request for 2nd medical exam denied.

Posted by on Jul 24, 2014 in Evidence, Legal Update | 0 comments

Defence request for 2nd medical exam denied.

On July 24, 2014, the BC Supreme Court, Vancouver Registry, confirmed that a second Court ordered defense medical exam is inappropriate solely in anticipation of an event which may not occur. In Litt v. Guo the plaintiff was involved in two collisions and sued for damages.  In the course of the lawsuit the plaintiff consented to a defence medical exam with a physician that addressed the plaintiff’s injuries.  As trial neared the defence applied for a further exam with a new physician arguing that the initial report was dated...

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“Low Velocity Impact” strategy rejected by the Court.

Posted by on Jun 21, 2014 in Evidence, Legal Update | 0 comments

“Low Velocity Impact” strategy rejected by the Court.

On June 18, 2014, the BC Supreme Court considered and rejected ICBC’s “low velocity impact” strategy.  In Dunne v. Sharma the plaintiff sued for damages as a result of two collisions.  She alleged both physical and psychological consequences following these collisions.  The defendant argued that any injuries the collisions caused were relatively minor as the collisions were modest.  In support of the defendant’s argument accident reconstruction evidence was introduced which discussed the forces of the collision.  In...

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$1.8 million diminished earning capacity for non-working plaintiff.

Posted by on May 20, 2014 in Injury Awards, Legal Update | 0 comments

$1.8 million diminished earning capacity for non-working plaintiff.

On May 20, 2014, the BC Supreme Court addressed the difficult problem of assessing damages for a lifetime of disability for a plaintiff who has not yet entered the workforce. In Hermanson v. Durkee, 2014 BCSC 877, the plaintiff was involved in a motor vehicle collision and suffered a severe traumatic brain injury which rendered him competitively unemployable.  He was 18 at the time, had just graduated high school and had not entered the workforce.   He “did not excel academically” and “it became apparently that post-secondary education was...

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Mediation discussions not always confidential.

Posted by on May 8, 2014 in Evidence, Legal Update | 0 comments

Mediation 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...

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A release will not be enforced if it is against public policy.

Posted by on May 1, 2014 in Insurance, Legal Update | 0 comments

A release will not be enforced if it is against public policy.

On April 30, 2014, the BC Court of Appeal ruled in Niedermeyer v. Charlton [2014] B.C.J. No. 763, that a release signed by a plaintiff participating in a zip line activity did not defeat her claim for injuries sustained in a motor vehicle collision on the defendant zip line operator’s bus travelling from the zipline area. The release was contrary to public policy, which did not allow an owner/operator of a motor vehicle to contract out of liability for damages for injuries sustained in a motor vehicle accident.. The plaintiff appealed...

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Is there a duty to take cannabis?

Posted by on Mar 4, 2014 in Articles - General, Legal Update | 0 comments

Is 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...

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Did Manulife make “deliberately false” statements?

Posted by on Jan 16, 2014 in Bad Faith, Legal Update, Manulife Cases | 0 comments

Did 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...

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Pension benefits not deducted from wrongful dismissal damages.

Posted by on Dec 31, 2013 in Articles, Articles - Employment, Legal Update | 0 comments

Pension benefits not deducted from wrongful dismissal damages.

In a decision released in 2013, IBM Canada Limited v. Waterman (“Waterman”), the Supreme Court of Canada decided that an employee was entitled to keep his pension benefits as well as the full damages awarded to him for wrongful dismissal over the same period of time. Background After 42 years of service, and at the age of 65, Richard Waterman (“Mr. Waterman”) was terminated by IBM Canada Limited (“IBM”). He was only provided with 2 months notice. At the time of termination Mr. Waterman was entitled to a full pension pursuant to IBM’s defined...

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Failure to examine plaintiff diminishes weight of expert report.

Posted by on Dec 31, 2013 in Evidence, Legal Update | 0 comments

Failure 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...

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