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

DEFENSE 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 has 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 from 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

What is critical is not the cause of loss, but the cause of liability. The claim arose from pollution damages, but pollution was excluded so the insurer had no obligation to payout. So even though fire was a concurrent cause of loss, the claim was for pollution damages, an excluded item.

Answer 9

The insured, Amos, was shot by a gang in California (while driving rental car) - claims no-fault accident benefits against his BC auto policy

Answer 10

PURPOSE TEST: Did the accident result from ordinary and well known activities to which automobiles are put? (essentially, was the car being used in a normal way?) CAUSALITY TEST: Is there some causal relationship between the injuries and the user or operation of the vehicle? (essentially, was there a link (possibly indirect) between use of car and shooting?)

Answer 11

Ruling 1: - BC Supreme Court dismissed driver's claim Ruling 2: - Appeals court upheld the judgment of the BC Surpreme 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 12

Not strictly applicable in Ontario - In Ontario, the policy wording is damage "caused by" use of car (vs "arising out of" use of car)

Answer 13

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

Answer 14

Was the city LIABLE for failing to maintain roadway in good repair during winter storm? Damages of 12M had already been agreed upon

Answer 15

City was liable for plaintiff injuries - Salting & plowing occurred but were not sufficient given the storm conditions

Answer 16

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

Answer 17

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 18

The case was essentially about "standard of care" - Appeal judge implied that standard of care was breached - A qualified city worker should reasonably have foreseen the icy conditions and taken steps to mitigate them

Answer 19

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 paintiff, Mr Moorhead is the defendant)

Answer 20

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 21

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 100K in non-pecuniary damages

Answer 22

- Trial judge's decision overturned by BC court of appeals - Mr Saadati has not demonstrated a medically recognized psychiatric or psychological injury

Answer 23

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 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), would not be fair for mental injuries to have a specific classification whereas for physical injuries there is no need for this.

Answer 24

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

Answer 25

Hanke badly burned, sued manufacturer of ice-surfacing machine for negligence in making the gasoline and water tanks so similar leading to his mistake

Answer 26

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 27

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

Answer 28

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

Answer 29

TRIAL: defendant wins The trial judge found that Hanke did not prove negligence of manufacturer as was Hanke’s error and not manufacturer design error’s. Notably due to Hanke’s own admission and application of but for rule test. Reasoning of the "but for test" - would explosion still have occurred BUT FOR making gas/water tanks similar? - YES, so defendant not liable

Answer 30

APPEAL: plaintiff (Hanke) wins Reasoning: apply "material contribution test" - Appeals judge stated trial judge failed in FC analysis (Foreseeability & Causation) - Appeals judge then applies "material contribution test"

Answer 31

Supreme Court: defendant wins Reasoning: Supreme Court conclude that manufacturer is not liable for Hanke’s injury and assessment of comparative blameworthiness is not necessary since Hanke’s error was not a design error and the but for rule test is the basic test and material contribution test not justified and necessary in this case

Answer 32

Requirement 1: Plaintiff cannot prove negligence of defendant using the "but for" test because of factors outside plaintiff's control Requirement 2: The defendant may have exposed claimant to unreasonable risk with his conduct/negligence and the plaintiff suffered a loss

Answer 33

Alberta introduced legislation to address: rising costs, increase in un/under-insured motorists - Trial challenged constitutionality of $4K cap on non-pecuniary damages for 'minor injuries'

Answer 34

Issue 1 (article 7): insured stated that his right to freedom was not respected since he was "forced" to follow certain medical practices in order to be compensated. Issue 2 (article 15): Injured states that the law is discriminatory for minor injured victims. Indeed, they can't "fully" be compensated for non-pecuniary damages while major injureds can. Moreover, this stigmatizes the minor injured.

Answer 35

RULING 1: cap is discriminatory & shut down - Cap does discriminate vs MI victims - Cap promotes stereotype as malingeres - Cap is unconstitutional - makes MI victims bear unfair share of cost cutting that came from need to reduce prems RULING 2: appeal reverses original ruling (cap is upheld) - Cap is designed to lower premiums to everyone - Cap does not discriminate against minor injuries (cannot be appealed further)

Answer 36

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

Answer 37

PRIVACY COMMISSIONER: use of credit score is acceptable

Answer 38

- Commissioner notes that the standard insurance form is deficient & misleading - Consent must be meaningful (website said credit MAY be used, but it was ALWAYS used) - Insurer should be explicit regarding its intent

Answer 39

- Victim sustained severe complications from ankle injury in 2002 auto accident - Victim broke her leg and sought catastophic impairement designation. After a certain time, the other leg was not working properly - Insured impacted by one of the 4 catastrophic impairement condition (was classified as class 4 in only one of 4 areas) - Aviva rejected cat imparment designation

Answer 40

Marked impairment significantly impeding useful functioning in at least 1 of: (DSCW) - Daily Living - Social Interaction - Concentration - Work activities

Answer 41

For class 4 designation, is it enough to show marked impairment in just 1 functional category? - For Pastore, this was daily living 2nd issue is whether physical and mental/psychiatric injuries can be combined to determine whether the CAT injury criteria are satisfied

Answer 42

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 = Designated Assessment Centers - DACs were used by ON auto insurers & claimants - DACs provided neutral 3rd party opinions about a claimant's injuries and benefits - DACs were in effect from 1994-2006

Answer 43

1st issue: Director delegate required only one criteria (DSCW) of these to be satisfied to declare a catastrophic impairment 2nd issue: this is allowed as it is hard to separate out the individual mental & physical injury. A comprehensive approach is needed to determine if CAT injury criteria are satisfied

Answer 44

Judicial review requested by Aviva reversed prior to decision -Judge stated that delegate exceeded jurisdiction NO cat impairment

Answer 45

Divisional Court erred in "standard of review" - Standard should be "reasonableness" (which delegate applied) Class 4 cat impairement reinstated, so reinstated Director Delegate's decision

Answer 46

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

Answer 47

- Plaintiff had leg amputated following auto accident (as passenger) - Sought classification as catastrophically impaired

Answer 48

Can physical impairment of 50% be combined with mental impairment % to reach 55% threshold for SABS cat impairment

Answer 49

TRIAL: NO cat impairment - SABS does not explicitly state that physical & mental impairment can be summed - SABS = Statutory Accident Benefits Schedule

Answer 50

APPEAL: allowed cat impairment - combining physical & mental %s seemed a more reasonable & modern interpretation (is not explicitly allowed but also not forbidden) - The combination is consistent with the guidelines More would qualify for cat impairment but still rare NO material impact on AA (Availability/Affordability) of insurance

Answer 51

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-yr statutory time limit for making a claim had expired - Economical argued the clock started on Sept 12, 2010 (original date of stoppage of benefits)

Answer 52

Discoverability principle: - A statutory limitation period can be extended in certain cases - Specifically, where a plaintiff did not have knowledge of and cannot have resonably 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 53

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 54

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 55

Ruling: - ON 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 56

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 57

1. Deterrence 2. Retribution 3. Denunciation

Answer 58

Resurface Corp v Hanke Somersall v York Whiten v Pilot Amos v ICBC Nichols v American Home Saadati v Moorhead

Answer 59

Primary Insurer: - Sansalone v Wawanesa - Nichols v American Home - Precision Plating v Axa Pacific Insurance Excess Insurer: - Alie v Bertrand Frere construction

Answer 60

Nichols v American Home

Answer 61

Aviva v Pastore Kusnierz v Economical

Answer 62

NO: see - Sansalone v Wawanesa - Nichols v American Home - Precision Plating v Axa Pacific Insurance