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FSCO Ruling on Mediation Deemed Failure After 60 Days Upheld

FIRM:Kelly Santini LLP
JURISDICTION:Ontario
DATE:September 2012
AUTHOR: Shawn O'Connor
CATEGORIES:Articles, Mediation and Alternative Dispute Resolution

At the end of July the Divisional Court upheld the decision of FSCO Director’s Delegate that mediation is considered to have failed if no resolution has been reached within 60 days. FSCO has not accepted that this is the last word on the matter and refuses to assign arbitrators to matters where no mediation has been conducted. FSCO has posted on its website that it is awaiting the release of the decision of the Ontario Court of Appeal who heard arguments on this matter in June. With mediations currently backlogged by over a year, insurers should anticipate an increase the number of statement of claims they receive for accident benefit cases as insured’s choose to sue instead of arbitrating accident benefit disputes. To read the Director’s Delegate ruling, please click here.

Creditor’s Rights Upon an Intentional Fault by an Insured Debtor

FIRM:Stein Monast LLP
JURISDICTION:Quebec
DATE:August 2012
AUTHOR: Henri Renault
CATEGORIES:Articles, Automobile

John Deere Limited v. Promutuel Lac St-Pierre – Les Forges, S.C. Richelieu, 765-17-000982-100, July 17, 2012, L. Lacoursière

For the first time, the Superior Court has clarified the status of a creditor under a non-automobile insurance policy, in this instance an agricultural policy.

John Deere was named as the creditor on Promutuel’s policy. John Deere owned a tractor leased to Hugo Therrien, who was insured by Promutuel. Therrien reported the tractor stolen, but later admitted that he had colluded in planning the “theft.”

Relying on Court of Appeal jurisprudence, which has established that a creditor under an automobile insurance policy should be considered as an additional insured, John Deere argued that it was also an additional insured under Promutuel’s policy and that accordingly Therrien’s intentional fault could not be opposed against it.

The court held that:

  • The identification of John Deere as a creditor was not sufficient to qualify it as an additional insured;
  • The disappearance of the tractor under those circumstances constituted a risk that was excluded under Promutuel’s policy;
  • In its capacity as the beneficiary of a stipulation for another, John Deere had no more rights than did stipulator Therrien;
  • Consequently, John Deere’s action was dismissed with costs.

Use of Polygraph in an Action Seeking Sanctions for Deceitful Representation

FIRM:Stein Monast LLP
JURISDICTION:Quebec
DATE:July 2012
CATEGORIES:Articles, Automobile

SSQ, société d’assurances générales inc. v. Alain Crytes, (C.Q., Maniwaki, No. 565-22-000081-089), 2012 march, 12, Fournier J. In the context of an action seeking sanctions for misrepresentation, the Court of Quebec has recognized that statements made by the insured during … Read more »

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Recent Manitoba Decision on Omissions on Disability Insurance Application

FIRM:Fillmore Riley LLP
JURISDICTION:Manitoba
DATE:July 2012
AUTHOR: Bernice Bowley
CATEGORIES:Articles, Coverage, Health law, Life and disability, Self insured & program

There has been a lot of commentary in the media about naïve Canadians inadvertently failing to provide full disclosure on their applications for travel and disability insurance.  A CBC Marketplace episode highlighted a number of situations where people completed insurance … Read more »

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The New Tort Relating to Invasion of Privacy: Insurance Implications

FIRM:Blaney McMurtry LLP
JURISDICTION:Ontario
DATE:June 2012
CATEGORIES:Articles, Class action, Coverage, Directors and officers, Errors & Omissions

INTRODUCTION The Ontario Court of Appeal’s January decision in Jones v. Tsige 2012 ONCA 32 recognized the tort of “intrusion upon seclusion”  as a cause of action in Ontario. This decision may have significant  implications for policyholders and  insurers. Formal … Read more »

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Has the Insurer which, in its Defence, Failed to Repeat the Exclusion Clause of the Insurance Policy Word for Word, Either Restricted or Limited its Claims Regarding the Exclusion it is Invoking?

FIRM:Donati Maisonneuve
JURISDICTION:Quebec
DATE:May 2012
CATEGORIES:Articles, Coverage, Subrogation

A recent decision rendered by the Superior Court on this topic, which was later appealed, arose from the following factual context. The Ace-Ina Insurance Company instituted an action in subrogation against the defendants, Mr. Demers (“Demers”) and the parents of Mr. X (“X”), a minor, further to a fire in a garage where portable golf course equipment had been stored, and for which the plaintiff indemnified the insured. More specifically, because Mr. X was a minor, his parents were sued personally, as the guardians of a minor. Let it be noted that in this case, the parents were not found personally liable; instead they were condemned only in their capacity as guardians.

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Three Strikes and You’re Out: Supreme Court of Canada rules on Forum Selection Clauses And the Law of Attornment

FIRM:Kelly Santini LLP
JURISDICTION:Ontario
DATE:May 2012
CATEGORIES:Articles, Directors and officers, Mediation and Alternative Dispute Resolution, Sports & recreation

After fielding a team in the Can-Am League during the 2008 season, Rapidz Baseball advised the League that it would not operate the following year and requested a voluntary withdrawal based on financial hardship. The League rejected the application after … Read more »

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Does an Insurance Adjuster’s Report Constitute a Privileged Document?

FIRM:Stein Monast LLP
JURISDICTION:Quebec
DATE:April 2012
CATEGORIES:Articles, Knowledge Centre

Réjean St-Pierreand 9118-0471 Québec Inc. filed a motion to institute proceedings against l’Union Canadienne, seeking to collect an insurance indemnity they claimed to be entitled to following a fire that occurred on January 29, 2010. In their proceedings, they also sought moral and punitive damages after the insurer’s decision to cancel the insurance policy ab initio following the incident, stating that such a position was arbitrary and detrimental to them. Read more.

Which indemnification regime applies to injury caused when a person is inside his vehicle: the ordinary law regime or the regime instituted under the Automobile Insurance Act?

FIRM:Stein Monast LLP
JURISDICTION:Quebec
DATE:March 2012
CATEGORIES:Articles, Automobile

Gabriel Antony Rossy was killed when a tree fell on the automobile he was in. His parents and his three brothers brought an action in civil liability against the owner of the tree, the City of Westmount. But the City sought to have the action dismissed, arguing that the injury was caused by an automobile, that the Automobile Insurance Act applied, and that any ordinary law remedy was therefore barred.

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Reforms to insurance legislation: Alberta’s response to the Supreme Court of Canada’s call for change

FIRM:Scott Venturo LLP
JURISDICTION:Alberta
DATE:March 2012
CATEGORIES:Articles, Automobile, Aviation, Boiler and Machinery, Class action, Construction, Coverage, Directors and officers, Employment Practices Liability, Environmental claims, Errors & Omissions, Fidelity and Surety claims, Financial Institution liability, Fraudulent and suspicious claims, Health law, Institutional and sexual abuse claims, Latent defects, Libel and defamation, Life and disability, Liquor Liability, Mediation and Alternative Dispute Resolution, Medical Examinations, Occupiers liability, Personal Injury, Privacy, Products Liability, Professional Liability, Property & casualty, Public authorities liability, Self insured & program, Sports & recreation, Subrogation, Surety Fidelity and Guarantee, Transportation

In the 2003 decisions of KP Pacific Holdings Ltd. V. Guardian Insurance Co. of Canada, [2003] S.C.J. No. 24 and Churchland. Gore Mutual Insurance Co., [2003] S.C.J. No. 25, the Supreme Court of Canada called for legislative changes to the … Read more »

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