LAND.CASES Flashcards
Whiten v Pilot
whiten –> frostbite outside because of fire
Insured’s house was destroyed in a fire. After some time, the insurer cuts off the rent without notice alleging arson (“that insured deliberately set the house on fire”). The allegation was wholly discredited at trial as no evidence of arson. Jury first awarded punitive damage of $1M which was reduced to $100k by the court of appeal. Supreme Court reversed the court of appeal’s decision to reduce the award as though very high the award was within the rational limit as the act was highly reprehensible as an effort to force an unfair settlement.
3 considerations the Supreme Court used to determine the quantum of punitive damages:
- degree vulnerability of the plaintiff
- degree of harm directed at plaintiff
- other advantage wrongfully gained - so that the defendant don’t see the award simply as a fee
Somersall v Scottish & York
somersall –> summer –> moto
- victim is severely injured by UNDER-insured driver
- injured party & tortfeasor sign limits agreement
- injured party also claims against OWN insurer for excess beyond limits agreement
- insurer denies claim
RULING 1: motions judge rules for insurer
RULING 2: ON appeals court reversed original ruling (plaintiff recovers under SEF 44)
RULING 3: Supreme Court dismissed insurer’s appeal (plaintiff recovers under SEF 44)
at time of accident, SEF 44 was in effect, therefore:
→ subsequent limits agreement did not preclude coverage under SEF 44
Sansalone v Wawanesa
sansalone - sexual assault
- BC Transit bus drivers sexually abused a teenager
- Wawanesa DENIED defense & coverage: policy terms exclude bodily injury caused intentionally
how does (duty to defend) relate to (duty to indemnify)
- does insurer have a duty to defend where indemnification is beyond scope of policy
RULING 1: there IS duty to defend because bus drivers may have (mistakenly, negligently) believed consent had been given (insurer appeals)
RULING 2: appeals court rules there is no duty to defend (2-1 split decision)
Nichols v American Home Assurance
Nichols la fraudeuse
- a solicitor was accused of fraud but found innocent
- sought defence costs from professional liability insurer
- Insurer denied claim
- how does (duty to defend) relate to (duty to indemnify)
- does insurer have a duty to defend where indemnification is beyond scope of policy
RULING 1: Insurer must defend
RULING 2: ON appeals court dismissed appeal:
- (duty to indemnify) versus (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
Alie v Bertrand Frere Construction
defective concrete requires replacement of basements of 140 houses in Ottawa (built between 1986 and 1988)
INDEMNITY COST ALLOCATION:
- different years were covered by different insurers
- which policies were triggered?
DEFENCE COST ALLOCATION:
- how are defence costs ALLOCATED between primary & excess insurers?
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
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
Precision Plating v Axa Pacific Insurance
Plating –> duty to defend
Pacific against the pollutants
insured had a fire on premises causing chemicals to overflow and contaminate neighboring property
- does insurer have a duty to defend
- pollution/contamination is EXCLUDED by policy
- but insured argued that cause of loss was fire & therefore covered
- chambers judge held for insured (insurer must defend)
- policy terms were ambiguous
- should not exclude contamination caused by fire
- insurer’s appeal allowed (no duty to defend)
- third party claims were for CONTAMINATION not for fire (thus excluded from coverage)
Amos v ICBC
Amos was shot
- the insured, Amos, was shot by gang in California (while driving rental car)
- claims no-fault Accident Benefits against his BC auto policy
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?
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
- not strictly appicable in Ontario
- in Ontario, the policy wording is damage “CAUSED BY” use of car (versus “ARISING OUT OF” use of car)
Belanger v Sudbury
Snowy Sudbury/Bélanger neigé
20 year-old woman catastrophically injured in head-on collision due to icy road in Sudbury Ontario
- 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
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 judges decision
- city is expected to ADAPT to conditions, NOT just blindly follow procedures
Other notes:
- 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
- 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
Saadati v Moorhead
Moorhead –> head –> personality changes and cognitive difficulties
Saadati –> Sad
- 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) - is Mr. Saadati eligible for non-pecuniary damages for physical and/or mental injury
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 overturned 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:
[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)
- 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
Resurfice Corp v Hanke
Resurfice –> Ice –> Zamboni
- Hanke badly burned in freak Zamboni accident: sued manufacturer
- Hanke claimed: (gas, water) tanks looked similar & easily confused (dumb-ass)
ISSUE: what was the cause of injury?
STANDARD CAUSATION TEST: ‘but for’ rule
Would result have occurred BUT FOR act/omission of defendant?
if YES: defendant NOT liable
if NO: defendant liable
ALTERNATE CAUSATION TEST: “material contribution” (use only when the “but for” rule can’t establish causation)
- requires that the negligent action MATERIALLY CONTRIBUTED to the risk of harm
- less rigorous than the ‘but for’ test
RULING 1:
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
RULING 2:
APPEAL: plaintiff (Hanke) 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:
Supreme Court: defendant wins
REASONING: apply “but for” test NOT “material contribution” test since accident WAS NOT reasonably foreseeable
2 requirements before “material contribution” causation test can be applied
REQ 1: the “but for” test CAN’T establish causation
REQ 2: accident MUST be reasonably foreseeable
Morrow v Zhang
Morrow –> M –> Minor injuries
- 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
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
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)
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
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
Aviva v Pastore
- victim sustained severe complications from ankle injury in 2002 auto accident
- sought catastrophic impairment designation
- Aviva rejected cat impairment designation
define ‘class 4 cat impairment’
- marked impairment significantly impeding useful functioning in at least 1 of: (DSCW)
- Daily living / Social interaction / Concentration / Work activities
ISSUES
- for class 4 designation, is it enough to show marked impairment in just 1 functional category?
- for Pastore, this was Daily living
pre-Ruling (DAC, Arbitration)
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)
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’ (which delegate applied)
–> class 4 cat impairment reinstated
Kusnierz v Economical
- plaintiff had leg amputated following auto accident (as passenger)
- sought classification as catastrophically impaired
ISSUES: can physical impairment of 50% be combined with mental impairment % to reach 55% threshold for SABS cat impairment
TRIAL: NO cat impairment
- SABS does not explicitly state that physical & mental impairment can be summed
- SABS = Statutory Accident Benefits Schedule
APPEAL: allowed cat impairment
- combining physical & mental %’s seemed a more reasonable & modern interpretation
- more would qualify for cat impairment but still rare
–> NO material impact on AA (Availability / Affordability) of insurance
