Land Cases Flashcards

Question

Alie v Bertrand Frere Construction: Ruling 1a

Answer 1

INDEMNITY TRIGGER: injury-in-fact - consider each 1-yr period from construction to realization of defect in 1992 - assume that damages are evenly spread over all years

Answer 2

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

Answer 3

- insured had a fire on premises causing chemicals to overflow and contaminate neighboring property

Answer 4

- does insurer have a duty to defend - pollution/contamination is EXCLUDED by policy - but insured argued that cause of loss was fire & therefore covered

Answer 5

- chambers judge held for insured (insurer must defend) - policy terms were ambiguous - should not exclude contamination caused by fire

Answer 6

- insurer's appeal allowed (no duty to defend) - third party claims were for CONTAMINATION not for fire (thus excluded from coverage)

Answer 7

compare to: (no duty to defend because no duty to indemnify) - Sansalone v Wawanesa (sexual abuse) - Nichols v American Home (fraud) Precision Plating was different however: - pollution/contimation was clearly excluded - insured argued cause of loss was fire not pollution (unsuccessful on appeal)

Answer 8

- the insured, Amos, was shot by gang in California (while driving rental car) - claims no-fault Accident Benefits against his BC auto policy

Answer 9

PURPOSE TEST: was the car being used in a normal way? CAUSALITY TEST: was there a link (possibly indirect) b/w use of car and shooting?

Answer 10

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

Answer 11

- not strictly appicable in Ontario - in Ontario, the policy wording is damage "CAUSED BY" use of car (versus "ARISING OUT OF" use of car)

Answer 12

20 year-old woman catastrophically injured in head-on collision due to icy road in Sudbury Ontario

Answer 13

- was the city LIABLE for failing to maintain roadway in good repair during a winter storm - damages of 12 million had already been agreed upon

Answer 14

- city was liable for plaintiff's injuries - salting & plowing occurred but were not sufficient given the storm conditions

Answer 15

UPHELD: court of appeal rejected defendant's "statutory defense" and upheld trial judges decision - city is expected to ADAPT to conditions, NOT just blindly follow procedures

Answer 16

- the city attempted a "statutory defense": claimed no liability because: - could not reasonably be expected to know about the reformed ice OR - took reasonable steps to maintain roadway

Answer 17

- this case was essentially about "standard of care" - appeal judge implied that standard of care was breached - a qualified city worker should reasonably have forseen the icy conditions and taken steps to mitigate them

Answer 18

- Mr. Saadati sustained injuries in an auto accident when his vehicle was hit by Mr. Moorhead's vehicle - accident occurred on July 5, 2005 (Mr. Saadati is the plaintiff, Mr. Moorhead is the defendant)

Answer 19

- is Mr. Saadati eligible for non-pecuniary damages for physical and/or mental injury (see also: Trilogy case involving cap on non-pecuniary damages)

Answer 20

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

Answer 21

- trial judge's decision overturned by BC Court of Appeal - Mr. Saadati had not demonstrated a medically recognized psychiatric or psychological injury

Answer 22

Supreme Court of Canada: unanimously reversed the BC Court of Appeal (June 2017) Reason: recovery for mental illness depends on 5 criteria: [1] duty of care (defendant had a duty to drive safely) [2] breach of duty of care [3] legal causal relationship [4] factual causal relationship [5] establishment that the mental injury is serious & prolonged, and rises above ordinary anxieties & fears → all criteria were met (plaintiff does not have to prove a specific recognized mental illness)

Answer 23

- the law of negligence must afford equal protections to victims mental and physical injuries - this case will have a significant impact on future cases dealing with compensation for mental injuries

Answer 24

- Hanke badly burned in freak Zamboni accident: sued manufacturer - Hanke claimed: (gas, water) tanks looked similar & easily confused (dumb-ass)

Answer 25

ISSUE: what was the cause of injury? STANDARD CAUSATION TEST: 'but for' rule ALTERNATE CAUSATION TEST: "material contribution" (use only when the "but for" rule can't establish causation)

Answer 26

"but for" CAUSATION TEST: Would result have occurred BUT FOR act/omission of defendant? if YES: defendant NOT liable if NO: defendant liable

Answer 27

- requires that the negligent action MATERIALLY CONTRIBUTED to the risk of harm - less rigorous than the 'but for' test

Answer 28

TRIAL: defendant wins REASONING: apply the "but for" test - would explosion still have occurred BUT FOR making gas/water tanks similar? - YES, so defendant NOT liable

Answer 29

APPEAL: plaintiff (Hanke) wins REASONING: apply "material contribution test" - appeals judge stated trial judge failed (in FC analysis (Foreseeability & Causation). ie Judge was wrong about FC test - appeals judge then applied "material contribution test"

Answer 30

Supreme Court: defendant wins REASONING: apply "but for" test NOT "material contribution" test since accident WAS NOT reasonably foreseeable

Answer 31

REQ 1: the "but for" test CAN'T establish causation REQ 2: accident MUST be reasonably foreseeable

Answer 32

- Alberta introduced legislation to address: rising costs, increase in un/under-insured motorists - trial challenged constitutionality of $4K cap on minor and/or soft tissue injuries

Answer 33

ISSUE 1: cap stigmatizes minor injuries because it treats such victims as malingerers ISSUE 2: cap is discriminatory because it treats minor injuries differently regarding non-pecuniary damages

Answer 34

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)

Answer 35

- PIPEDA is Personal Information Protection & Electronic Documents Act - an ON couple complained of increase in property insurance rates because InsR used their credit score

Answer 36

PRIVACY COMMISSIONER: use of credit score is acceptable

Answer 37

- 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

Answer 38

- victim sustained severe complications from ankle inury in 2002 auto accident - sought catastrophic impairment designation - Aviva rejected cat impairment designation

Answer 39

- marked impairment significantly impeding useful functioning in at least 1 of: (DSCW) - Daily living / Social interaction / Concentration / Work activities

Answer 40

- for class 4 designation, is it enough to show marked impairment in just 1 functional category? - for Pastore, this was Daily living

Answer 41

DAC: * concluded there was marked impairment in daily living * an assessment of class 4 cat impairment was appropriate Arbitration: * DAC's conclusion affirmed by arbitration delegate (class 4 impairment upheld) Note: * DAC stands for Designated Assessment Centres * DACs were used by Ontario auto insurers and claimants * DACs provided neutral 3rd-party opinions about a claimant's injuries and benefits * DACs were in effect from 1994-2006

Answer 42

Divisional Court: - judicial review requested by Aviva reversed prior decision - judge stated that delegate exceeded jurisdiction --> NO cat impairment

Answer 43

Appellate Court: - Divisional Court erred in 'standard of review' - standard should be 'reasonableness' (which delegate applied) --> class 4 cat impairment reinstated

Answer 44

- there is currently a big gap in compensation between (non-cat & cat) impairment - there should be a provision for something between minor injury and cat impairment

Answer 45

Initial Injury: * the insured (Tomec) was hit by a vehicle as a pedestrian on Sept 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 Sept 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 Sept 12, 2010 (orignal date of stoppage of benefits)

Answer 46

discoverability principle: * a statutory limitation period can be extended in certain cases * specifically, where a plaintiff did not have knowledge of and cannot have reasonably discovered an event for Tomec: * she didn't "discover" her CAT impairment until May 2015 (Economical's official acknowledgment date) * wasn't possible for her to apply for extended benefits within 2 years of original stoppage on Sept 12, 2010

Answer 47

* does the discoverability principle apply so that the statutory time limit can be extended? (Is Tomec still entitled to extended benefits based on subsequent CAT classification?)

Answer 48

* the LAT (License Appeal Tribunal) and the Ontario Divisional Court concluded discoverability does not apply * Tomec did not apply for extended benefits by Sept 12, 2012 * therefore Tomec cannot apply for (or receive) extended benefits

Answer 49

Ruling: * 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 Sept 12, 2012 because.. ..Economical didn't even classify her as eligible for extended benefits until May 2015

Answer 50

The Court of Appeals further supported their decision because: * if she had NOT claimed the original benefits then the statutory time limit would have started May 2015 and.. ..she would NOT have been denied extended benefits * but the catastrophic impairment would be the same in each case so the outcome should be the same

Answer 51

Deterrence | Denunciation | Retribution

Answer 52

(Zamboni case): Resurface Corp v Hanke – Somersall v York Whiten v Pilot Amos v ICBC Nichols v American Home Saadati v Moorhead ← shout-out to ck2202!

Answer 53

PRIMARY insurer: - Sansalone v Wawanesa - Nichols v American Home - Precision Plating v Axa Pacific Insurance EXCESS insurer: - Alie v Bertrand Frere construction

Answer 54

Nichols v American Home

Answer 55

Aviva v Pastore Kusnierz v Economical

Answer 56

NO: see (Sansalone v Wawanesa), (Nichols v American Home), (Precision Plating v Axa Pacific Insurance)