Court Cases Flashcards
What are the cases related to duty-to-defend?
- Sansalone vs. Wawanesa (sexual abuse)
- Nichols vs. American Home Assurance (fraud)
- Alie vs. Bertrand Frere Construction (excess insurer)
- Precision Plating vs. Axa Pacific Insurance (primary cause of loss)
Which cases went to Supreme Court?
(Z-SWANS):
- Zamboni: Resurfice Corp vs. Hanke
- Somersall vs. York
- Whiten vs. Pilot Ins Co
- Amos vs. ICBC
- Nichols vs. American Home
- Saadati vs Moorhead
Which cases deal with catastrohpic injuries?
- Aviva vs. Pastore
- Kusnierz vs. Economical
Which case is related to proportionality?
Whiten vs. Pilot Ins Co
Which case is related to subrogation?
Somersall vs. Scottish & York
Which case is related to ‘but for’ test and ‘material contribution’ test?
Resurfice Corp vs. Hanke
Which case is related to minor injury cap?
Morrow vs. Zhang
Which case is related to privacy?
PIPEDA Report of Findings
Which case is related to standard of care?
Belanger vs. Sudbury
Which case is related to non-pecuniary compensation for mental injuries?
Saadati vs. Moorhead
What are the ruling details for ‘Whiten vs Pilot Ins Co’?
Ruling 1: jury awards $1m punitive
Ruling 2: ON appeals reduces to $100k
Ruling 3: Supreme Court restores $1m
What are the ruling details for ‘Somersall vs. Scottish&York’?
Ruling 1: motion judge rules for insurer
Ruling 2: ON appeals court reversed original ruling (plaintiff recovers under SEF44)
Ruling 3: Supreme Court dismissed insurer’s appeal (plaintiff recovers under SEF44)
Supreme Court reasoning: at the time of accident, SEF44 was in effect, therefore, subsequent limits agreement did not preclude coverage under SEF44
What are the ruling details for ‘Sansalone vs. Wawanesa’?
Ruling 1: there is duty to defend because bus drivers may have mistakenly, negligently believed consent had been given
Ruling 2: appeals court rules there is no duty to defend (2 vs. 1)
What are the ruling details for ‘Nichols vs. American Home Assurance’?
Ruling 1: insurer must defend
Ruling 2: ON appeals court dismissed appeal:
- duty to indemnify vs. duty to defend different
- must pay defense since defendant was found innocent
Ruling 3: Supreme Court allowed appeal:
- duty to defend is triggered by duty to indemnify
- since fraud beyond scope of coverage: no duty to indemnify -> no duty to defend
What are the ruling details for ‘Amos vs. ICBC’?
Ruling 1: BC Supreme Court dismissed driver’s claim
Ruling 2: Appeals Court upheld the judgment of the BC Supreme Court
Ruling 3:
- Supreme Court of Canada held that appeal should be allowed (driver is compensated)
- answer is YES to both purpose & causality tests
- plaintiff received no-fault benefit (Accident Benefits) because damage was ‘ARISING OUT OF’ use of car
What are the ruling details for ‘Alie vs. Bertrand Frere Construction’?
Ruling 1a: Indemnity Trigger: injury-in-fact
- consider each 1yr period from construction to realization of defect in 1992
- assume that damages are evenly spread over all years
Ruling 1b: Defence Trigger:
- excess/umbrella policies have duty to defend provided
- they follow the form of the underlying policy and do not specifically exclude duty to defend
What are the ruling details for ‘Resurfice Corp vs. Hanke’?
Ruling 1: (Trial) defendant wins
- reasoning: apply the ‘but for’ test
- would explosion still have occurred but for making gas/water tanks simialr?
- yes, so defendant not liable
Ruling 2: plaintiff wins
- reasoning: apply ‘material contribution’ test
- appeals judge stated trial judge failed in FC analysis (foreseeability & causation)
- appeals judge then applied ‘material contribution’ test
Ruling 3: defendant wins
- reasoning: apply ‘but for’ test not ‘material contribution’ test since accident was not reasonably foreseeable
What are the ruling details for ‘Morrow vs. Zhang’?
Ruling 1: cap is discriminatory & struck down
Ruling 2: appeal reverses original ruling (cap is upheld)
- cap is designed to lower premiums for everyone
- cap does not discriminate against minor injuries (cannot be appealed further)
What are the ruling details for ‘PIPEDA Report of Findings’?
Privacy Commissioner: use of credit score is acceptable
- commissioner notes that the standard insurance form is deficient & misleading
- consent must be meaningful (website said credit score may be used, but it was always used)
- insurer should be explicit regarding its intent
What are the ruling details for ‘Aviva vs. Pastore’?
pre-Ruling (DAC):
- concluded there was marked impairment in daily living
- an assessment of class 4 cat impairment was appropriate
pre-Ruling (Arbitration):
- DAC’s conclusion affirmed by arbitration delegate (class 4 impairment upheld)
Ruling 1 (Divisional Court):
- judicial review requested by Aviva reversed prior decision
- judge stated that delegate exceeded jurisdiction
-> no cat impairment
Ruling 2 (Appellate Court):
- Divisional Court erred in ‘standard of review’
- standard should be ‘reasonableness’
-> class 4 cat impairment reinstated
What are the ruling details for ‘Kusnierz vs. Economical’?
Ruling 1: No cat impairment
- SABS does not explicitly state that physical & mental impairment can be summed
- SABS = Statutory Accident Benefits Schedule
Ruling 2: allowed cat impairment
- combining physical & mental %’s seemed a more reasonable & mordern interpretation
- more would qualify for cat impairment but still rare
-> no material impact on AA (availability/affordability) of insurance
What are the ruling details for ‘Belanger vs. Sudbury’?
Ruling 1:
- city was liable for plaintiff’s injuries
- salting & plowing occurred but were not sufficient given the storm conditions
Ruling 2:
- upheld: court of appeal rejected defendant’s “statutory defense” and upheld trial judge decision
- city is expected to adapt to conditions, not just blindly follow procedures
What are the ruling details for ‘Precision Plating vs. Axa Pacific Insurance’?
Ruling 1: chambers judge held for insured (insurer must defend)
- policy terms were ambiguous
- should not exclude contamination caused by fire
Ruling 2: insurer’s appeal allowed no duty to defend
- third party claims were for contamination not for fire thus excluded from coverage
What are the ruling details for ‘Saadati vs. Moorhead’?
Ruling 1:
- physical injury claim: rejected by trial judge
- mental injury claim:
-> evidence from plaintiff’s expert psychologist not enough to establish psychological injury
-> but testimony of Mr. Saadati’s family and friends was sufficient proof of psychological injury
-> judge awards $100,000 in non-pecuniary damages
Ruling 2:
- trial judge’s decision overtuned by BC Court of Appeal
- Mr. Saadati had not demonstrated a medically recognized psychiatric or psychological injury
Ruling 3:
- Supreme Court of Canada:unanimously reversed the BC Court of Appeal (June 2017)
- Reason: recovery for mental illness depends on 5 criteria:
-> duty of care (defendant had a duty to drive safely)
-> breach of duty of care
-> legal causal relationship
-> factual causal relationship
-> establishment that the mental injury is serious & prolonged, and rises above ordinary anxieties & fears
What are the ruling details for ‘Tomec vs. Economical’?
Ruling 1:
- the LAT (License Appeal Tribunal) and the Ontario Divisional Court concluded discoverability does not apply
- Tomec did not apply for extended benefits by 9/12/2012
- therefore Tomec cannot apply for or receive extended benefits
Ruling 2:
- Ontario Court of Appeal ruled that discoverability did apply to the limitation period
- the orders of LAT and Divisional Court were set aside
-> Reasoning: it would be absurd to expect Tomec to apply for extended benefits by 9/12/2012 because Economical didn’t even classify her as eligible for extended benefits until May 2015
What is ‘purpose test’ in case Amos vs. ICBC?
Puporse test: was the car being used in a normal way?
What is ‘causality test’ in case Amos vs. ICBC?
Causality test: was there a link possibly indirect b/w use of car and shooting?
Would the result have changed for Amos vs. ICBC in Ontario?
Applicability to Ontario:
- no strictly applicable in Ontario
- in Ontario, the policy wording is damage ‘CAUSED BY’ used of car
What is the ‘but for’ causation test?
What is the ‘but for’ causation test?
- would result have occurred but for act/omission of defendant?
- if yes: defendant not liable/if no: defendant liable
What is the ‘material contribution’ test and what are the requirements to apply it?
What is the ‘material contribution’ test?
- requires that the negligent action materially contributed to the risk of harm
- less rigorous than the ‘but for’ test
2 requirements before ‘material contribution’ test can be applied:
- the ‘but for’ test can’t establish causation
- accident must be reasonably foreseeable
What are the facts about ‘Whiten vs. Pilot’?
- family house burns down
- insurer pays for temporary shelter then ceases payments
- insurer claims they aren’t liable due to arson but has no evidence
What are the facts about ‘Somersall vs. Scottish & York’?
- victim is severely injured by underinsured driver
- injured party & tortfeasor sign limits agreement
- injured party also claims against own insurer for excess beyond limits agreement
- insurer denies claim
What are the facts about ‘Sansalone vs. Wawanesa’?
- BC transit bus drivers sexually abused a teenager
- Wawanesa denied defense & coverage: policy terms exclude bodily injury caused intentionally
What are the facts about ‘Nichols vs. American Home Assurance’?
- a solicitor was accused of fraud but found innocent
- sought defence costs from professional liability insurer
- insurer denied claim
What are the facts about ‘Amos vs. ICBC’?
- the insured Amos was shot by gang in California while driving rental car
- claims no-fault Accident Benefits against his BC auto policy
What are the facts about ‘Alie vs. Bertrand Frere Construction’?
defective concrete requires replacement of basements of 140 houses in Ottawa built between 1986 and 1988
What are the facts about ‘Resurfice Corp vs. Hanke’?
- Hanke badly burned in freak Zamboni accident: sued manufacturer
- Hanke claimed: gas, water tanks looked similar & easily confused
What are the facts about ‘Morrow vs. Zhang’?
- Alberta introduced legislation to address: rising costs, increase in un/underinsured motorists
- trial challenged constitutionally of $4k cap on minor and/or soft tissue injuries
What are the facts about ‘PIPEDA Report of Findings’?
- PIPEDA is Personal Information Protection & Electronic Documents Act
- an ON couple complained of increase in property insurance rates because insurer used their credit score
What are the facts about ‘Aviva vs. Pastore’?
- victim sustained severe complications from ankle injury in 2002 auto accident
- sought catastrophic impairment designation
- Aviva rejected cat impairment designation
What are the facts about ‘Kusnierz vs. Economical’?
- plaintiff had leg amputated following auto accident as passenger
- sought classification as catastrophe impaired
What are the facts about ‘Belanger vs. Sudbury’?
20-year old woman catastrophically injured in head-on collision due to icy road in Sudbury Ontario
What are the facts about ‘Precision Plating vs. Axa Pacific Insurance’?
insured had a fire on premises causing chemicals to overflow and contaminate neighboring property
What are the facts about ‘Saadati vs. Moorhead’?
- Mr. Saadati sustained injuries in an auto accident when his vehicle was hit by Mr. Moorhead’s vehicle
- accident occurred on July 5, 2005
What are the facts about ‘Tomec vs. Economical’?
Initial Injury:
- the insured Tomec was hit by a vehicle as a pedestrian 9/12/2008
- her injuries were serious but not catastrophic
- she was therefore granted 104 weeks of ACB (Attendant Care Benefits) and HK (House Keeping)
- Economical stopped benefits on 9/12/2010
Deteriorating Condition:
- Economical reclassified her as CAT (catastrophically impaired) in May 2015
- CAT impairment removes the time limit for ACB and HK
- but Economical denied benefits because the 2-year statutory time limit for making a claim had expired
- Economical argued the clock started on 9/12/2010
