Patterson Insurance Pulse

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Insurance Law Blog
By pipblogger on 7/3/2012 8:18 AM

 The concept of causation is central to a determination of negligence. It is the necessary link between the breach of an existing duty of care and damages, as any first-year law student can recite.

Nonetheless, establishing the test for causation has often led courts into difficult terrain, and in Clements v. Clements 2012 SCC 32, the Supreme Court of Canada overturned the Court of Appeal of British Columbia's decision, which had dismissed the trial decision in favour of the Plaintiff. The Supreme Court ordered a new trial.

By pipblogger on 6/4/2012 10:20 AM
A recent Ontario Court of Appeal decision, Lloyd v. Bush, raises an issue of potential interest to insurers across Canada. In the trial decision in that case, the judge had repeatedly pressed plaintiff's counsel to say that he was alleging fraud against a municipality where a witness had been called the accuracy of some business records into question. Plaintiff's counsel repeatedly denied that any allegation of fraud was being made against the defendant. In concluding that a new trial was warranted, the Court of Appeal stated, 

“If the trial judge’s approach is correct, every time a particular expert testified that the recorded notes do not reflect what actually happened, it would be tantamount to an allegation of fraud against the author of the notes. What was raised here by the expert witness, Bender, were everyday issues of reliability and credibility, not fraud. When a witness, on behalf of a corporation, government,...
By pipblogger on 4/20/2012 2:49 PM
Club Resorts Ltd. v. Van Breda involved two separate actions arising out of two different incidents that occurred in Cuba. In the first case, a woman suffered catastrophic injuries when a metal structure on the beach at the SuperClubs Breezes Jibacoa resort (managed by Club Resorts) collapsed. She became paraplegic as a result of this incident. In the second case, a man died during a scuba diving excursion while staying at Breezes Costa Verde, also managed by Club Resorts). Both claims were brought in Ontario against a number of defendants, including the defendant Club Resorts. The defendant wished to block the Ontario actions, alleging that the Ontario courts did not have jurisdiction and, in the alternative, arguing the doctrine of forum non conveniens. The motions judges in both cases found that the Ontario courts had jurisdiction and that the Ontario court was more appropriate. Both cases were appealed together...
By pipblogger on 4/4/2012 9:49 AM
In Green v. T & T Inspections, the plaintiff in a personal injury case had filed a jury notice. The plaintiff, a Rig Manager, had been seriously injured when a rod hook fractured his skull during the course of his employment. Liability of the defendants, which had performed testing and repairs on the rod hook prior to the plaintiff's injury, was in dispute. Five experts in micro and macro metallurgical analysis were retained by the parties. One of the defendants applied to strike the jury notice. In her decision, Associate Chief Justice Deborah K. Smith acknowledged the prima facie right of the plaintiff to a jury trial, but considered the case law that has developed in this area. She concluded, "It is clear from a review of the authorities that each case must be decided on its own facts taking into account the degree of complexity involved." Upon reviewing the five expert reports that were being...
By pipblogger on 3/23/2012 9:23 AM
By pipblogger on 3/21/2012 9:59 AM
In a decision of the Supreme Court of Nova Scotia in Kingston v. MacIsaac dated March 16, 2012, Associate Chief Justice Deborah Smith declined to accept the plaintiff's version of events surrounding a March 2007 motor vehicle accident. Two independent witnesses testified that the plaintiff had been speeding and racing an unidentified vehicle just prior to a collision with the defendant, who was making a left turn. The Court found that the plaintiff's racing was the primary cause of the accident and placed 80% liability upon him, but held the defendant 20% liable for failing to wait to see if he had time to turn across the path of the approaching vehicles. The plaintiff and the defendant had each claimed against the other for damages sustained as a result of the collision. The  Court declined to award damages to the plaintiff for loss of income, diminished earning capacity and increased insurance premiums, but awarded 20%...
By pipblogger on 3/21/2012 9:47 AM
Mark Friday, March 23, 2012 at 7 p.m. on your calendar for an evening of live music, dancing and entertainment, as well as a silent auction at the Westin Nova Scotia, 1181 Hollis Street, Halifax. Tickets are $50 (individual) and $90 (couple). The proceeds will go to support Canadian Paraplegic Association (Nova Scotia). Tickets can be obtained from Dawn Ritcey at (902) 423-1277 ext. 105 or or online at
By pipblogger on 3/5/2012 12:48 PM
In Walsh v. Unum 2012 NSSC 86, the Nova Scotia Supreme Court decided that a plaintiff's failure to disclose several medical conditions and investigations rendered his disability policy void ab initio.  Further, the Court found that he was not totally disabled during the period for which he claimed and received benefits and had carried on with his business activities. The Court ordered the Plaintiff to pay back $125,119.20 in benefits.
By pipblogger on 2/29/2012 12:51 PM
The decision of the Nova Scotia Court of Appeal in Keizer v. Slauenwhite 2012 NSCA 20, has affirmed that the Province has a right to bring a subrogated claim against a defendant involved in an insured motor vehicle collision for recovery of costs of its medical services associated with nursing home care of an injured party. The majority held that this right exists notwithstanding the annual levy paid by automobile insurers to assist the Province's recovery of such costs. Justice Saunders commented: I recognize that it is not apparent why in 2002 the Legislature reverted to having the Province attempt to recover its nursing home care costs by subrogation rather than through the levy, given that the levy was apparently a superior and more cost effective means of collection. We know from the Hansard excerpts that the implementation of the...
By pipblogger on 2/24/2012 12:57 PM
Lawyers – read this before you pick up the phone to book an IME on behalf of your client. An appeal from a reassessment was heard by the Tax Court of Canada in Wagner v. R. 2012 TCC 59 (released February 23, 2012). The Court found that, while medical practitioners do not have to charge GST/HST for IMEs and other medical services, lawyers who pay the bills for IMEs and then later charge their clients for the disbursement must remit GST/HST. Justice Angers wrote: “…obtaining the IMEs becomes part of the [lawyer’s] services supplied to his client in the course of providing legal services. For a lawyer to properly advise his clients, he needs IMEs: they help him with their cases as they do have an impact on how he will advise the clients and on such things as to whether to settle or pursue a claim. They are an integral part of a client’s case and are acquired for use in providing legal services. That being so, GST/HST is exigible.”