RMC
Risk Management Counsel of Canada 

• 2012

  Title : SEF 44 Family Endorsement Protection Deductibility of Collateral Benefits

  SEF 44 insurance coverage refers to “Standard Endorsement Form 44” coverage that may be purchased in addition to a regular automobile insurance policy. It is a Family Protection Endorsement designed to provide insurance coverage to named insureds, as well as their family, for injuries or death resulting from motor vehicle accidents involving uninsured or inadequately insured motorists. The purpose of this coverage is to provide the insured with excess coverage as a “last ditch” or “safety net”, without providing a windfall. Generally, where you have a claim under SEF 44 coverage, you are dealing with very serious injuries where plaintiffs are receiving loss of income benefits from other sources, such as Section B [AB] benefits, CPP benefits and private long term disability benefits. Clause 4 of the standard SEF 44 policy is entitled “Amount Payable per Eligible Claimant” and provides for specific deductions in the quantification of the amount payable by an SEF 44 insurer. For example, the Standard Endorsement Form requires that the coverage of an underinsured be depleted prior to a payout under the Family Protection Endorsement. The interpretation of clause 4 of the SEF 44 policy has differed across jurisdictions and levels of Court, causing some degree of concern and confusion over how these contracts should be applied going forward. This article provides a New Brunswick perspective on the development, and what could certainly be considered somewhat of a disconnect of the law, regarding the deductibility of collateral benefits from SEF 44.

  Author(s) : Monika M.L. Zauhar and Steven Pearce, Cox & Palmer, New Brunswick (NB)

• 2011

  Title : Covering the Field: Sport-Related Personal Injuries and Insurance Coverage

  Broadly speaking, over the past ten years, the media has increased its coverage and focus on personal injuries sustained in sports, both professional and amateur. In conjunction, health professionals have cautioned the public about the dangers of sports injuries and the courts have scrutinized the legal implications of personal injuries sustained during organized sports. As a certainty, when personal injuries are sustained in sport, various parties may be implicated. In many instances, a plaintiff claims that he or she sustained personal injuries due to a fellow player’s conduct. However, in addition to such a claim, the plaintiff may claim against the organization which sponsored or coordinated the sports activity or the party who supplied and maintained the sports facility. It comes as no surprise that these parties often hold insurance policies and as a result, there has been litigation concerning when insurers have a duty to defend these insureds.

  Author(s) : Anita G. Wandzura et McKercher LLP, Saskatoon (SK)

• 2011

  Title : Recent Alberta Court of Appeal Decision Confuses our Understanding of an Occupier’s Duty of Care

  This paper provides an overview of the latest Alberta Court of Appeal decisions in the area of Occupier’s Liability. The Occupier’s Liability Act has very broad wording under section 5, which provides that an occupier has a duty to keep visitors safe. In interpreting this provision, the Court has applied a wide range of expectations on occupiers. This paper demonstrates some of the different lines of reasoning among the Justices of the Court of Appeal in this area of the law.

  Author(s) : Lisa A. Redmond et J. Faye Armfield, Chomicki Baril Mah LLP, Edmonton (AB)

• 2011

  Title : Social media: a management tool, or another risk to manage?

  In the late 19th century, the invention of the telephone ushered in a new age of communications. In 2004, little more than a century later, the advent of Web 2.0 revolutionized the way individuals interact, both privately and in the workplace. The word “productivity” has taken on a new meaning. Popular social networks, such as Facebook, MySpace, Google+, Twitter and LinkedIn, enable us to exchange information immediately, to our benefit as well as detriment. On the Internet, we can now express our views in complete freedom, often under the cover of anonymity. A new vocabulary has sprung up, and emoticons are used to convey feelings.

  Author(s) : Geneviève Cotnam, Stein Monast, Québec (Québec)

• 2011

  Title : Deducting contractual employment benefits from past income loss awards

  The fundamental goal of tort law is to restore the plaintiff to the position that he would have been in if not for the defendant’s wrongdoing. This is the reason why plaintiffs in personal injury actions cannot recover lost wages resulting from their injuries where they have been paid those wages pursuant to a contract of employment. Failure to deduct these benefits would amount to double compensation or a windfall to the plaintiff. The general principle is that payments made by an employer during the period when a plaintiff could not work due to injuries caused by a negligent defendant should be accounted for in assessing damages for loss of earnings. There are limited exceptions to the rule against double recovery, but the reality is that the exception has become the rule. It is very easy for a plaintiff to prove that employment benefits should not be deducted from tort awards, and the result is that plaintiffs often receive a windfall from personal injury claims.

  Author(s) : Chelsea Lott, Carfra & Lawton, Victoria (BC)

• 2011

  Title : Insurance and Insolvency

  In this month’s article we consider insurance issues which arise on the insolvency of an insured. In particular, we look at the obligation of trustees in bankruptcy to maintain existing coverage, and the competing concern which some insurers have, that the insolvency of the insured constitutes a material change of the risk

  Author(s) : Andrew Loewen, Fillmore Riley LLP, Winnipeg (MB)

• 2011

  Title : Considerations for Serving a Jury Notice in Personal Injury Litigation

  The decision of whether to serve a jury notice in civil actions is one that arises frequently, but is not usually given the thorough consideration it requires. Are juries “wild cards” or can we generally assume that juries will render a lower damages award than a judge in a personal injury case? Are jury trials to be avoided because they are more expensive and harder to appeal? How do jury’s verdicts compare to those of judges? This essay explores a number of viewpoints from various legal scholars, and examines the results of certain social science studies that question our assumptions. In the end, it is argued that juries remain an indispensible facet of our litigation system while providing an opportunity for skilled advocates to use the leanings of a jury to their client’s advantage.

  Author(s) : Catherine McGhee, Blaney McMurtry LLP, Toronto (ON)

• 2011

  Title : Green Energy: An Emerging Insurance Issue

  In today’s rapidly changing world one of the newest topics arising in the insurance industry is that of "green energy". This paper highlights some of the insurance claims and coverage issues to expect when dealing with renewable energy resources.

  Author(s) : Allison Klymyshyn, Kelly Santini LLP

• 2011

  Title : Waiver of Liability & Assumption of Risk Agreement Enforced

  This article reviews the recent case of Loychuk & Westgeest v. Cougar Mountain Adventures Ltd. 2011 BCSC 193 in which the court upheld a waiver and assumption of risk agreement and dismissed the plaintiffs’ claims for personal injuries which occurred while participating in a zipline operated by the defendant.

  1. See the court case document

  Author(s) : Carmen Place and Max Hufton, Lindsay Kenney LLP

• 2011

  Title : Trigger Theory: Recent Case Law and Analysis

  A junior lawyer’s passion for trigger theories results in a review of the last decade’s case law. She is disappointed to find that each decision is fact dependent and the subject is not often before the courts. This paper discusses trigger theories and summarizes case law.

  Author(s) : Laura Chant, Scott Venturo LLP

• 2011

  Title : Ensuring a Cost Effective and Efficient Insurance Defence (Webinar)

  Understanding and following the fundamentals of file preparation and court procedure can have a major impact on the outcome of a defence or subrogated action and the costs associated with the court proceeding. This webinar outlines the following five topics:

  1. Procedures & steps in a lawsuit
  2. Civil actions
  3. Managing costs
  4. Subrogation files
  5. Defence files

  Author(s) : Allison Klymyshyn & Valerie Westwick, Kelly Santini LLP

• 2011

  Title : THE QUEBEC COURT OF APPEAL TEACHES A LESSON IN LAW TO SKI SCHOOLS

  This article comments on a Quebec Court of Appeal decision regarding the liability of ski-school operators.

  Author(s) : Sonia Paradis, Donati Maisonneuve LLP

• 2011

  Title : Insurance Intermediaries: Fulfilling the role of an Insurance Expert!
  Do you know your client's business?

  This paper provides an overview of potential areas where brokers and agents may be exposed to liability. It provides an overview of various business scenarios where insurance intermediaries have fallen short, and offers guidelines to improve the chance of avoiding future liability claims from customers.

  Author(s) : Monika M.L. Zauhar and Amanda Evans, Cox & Palmer

• 2010

  Title : Newer Isn’t Necessarily Better

  In the majority of court cases involving the near total destruction of commercial property, the court uses the property’s replacement cost as the “starting point” for a damages assessment. Once it is accepted that replacement cost is the appropriate measure, counsel for the defendant will often argue that damages should be reduced to account for betterment or improvement. The law suggests that a reduction for betterment is not automatic; rather, the law imposes a burden of proof on the defendant, who must establish that a betterment exists, and moreover, that the betterment warrants a reduction in damages

  Author(s) : Anita G. Wandzura, McKercher LLP

• 2010

  Title : THE TRANSITION TO ALBERTA'S NEW RULES OF COURT

  This paper provides an overview of the new Alberta Rules of Court to be implemented in Alberta on November 1, 2010. It provides a basic overview of the changes with specific focus on each of the litigation steps and a general outline of the changes. Some changes are minor while others are significant departures from the previous Rules.

  Author(s) : Nanette S. Kufeldt & Lovely Ann N. Rejzek, Chomicki Baril Mah LLP

• 2010

  Title : Pre-Trial Examination of a Child: a Delicate Balance Between the Child’s Interests and the Right to Examine Him

  Geneviève Cotnam comments on a recent decision rendered in Aviva v. Morency and assesses the specific context of the pre-trial examination of children, reminding us that such examinations are usually conducted in the absence of a judge.

  Author(s) : Geneviève Cotnam, Stein Monast LLP

• 2010

  Title : BRITISH COLUMBIA’S NEW SUPREME COURT CIVIL RULES

  This paper serves as a primer on the changes to BC’s Rules of Court that will have the most impact on insurance professionals when handling a litigated claim in BC.

  Author(s) : Brian L. Hoffmann, Associate, Carfra & Lawton, Victoria, BC
  Editor : Jeremy D. Martin, Partner, Carfra & Lawton, Victoria, BC

• 2010

  Title : Claim for Mental Anguish, Inconvenience and Loss of Academic Opportunities from Cancelled Flight Denied Under The Montreal Convention

  "Montreal Convention: claim for mental anguish, inconvenience, and loss of academic opportunity as a result of a flight cancellation denied by the Manitoba Court of Appeal. The Manitoba Court of Appeal considered the Carriage By Air Act, better known as The Montreal Convention, which governs liability for damages occasioned by delay in the carriage of passengers by air."

  Author(s) : Daniel P. Ryall, Fillmore Riley LLP

• 2010

  Title : Malicious Prosecution and Negligent Investigation: Where Are We?

  This paper discusses recent developments in the torts of negligent investigation and malicious prosecution in the context of police civil liability.

  Author(s) : Eugene Mazzuca, Kerry Nash & Rafal Szymanski, Blaney McMurtry LLP

• 2010

  Title : WORKERS’ COMPENSATION FOR INSURERS

  The Canadian workers’ compensation laws basically reflect the original no-fault insurance system. The restriction on the right to sue is not always on the minds of insurers faced with a personal injury claim. At the outset, an insurer should consider whether the relevant workers’ compensation laws remove the right of the injured party to maintain an action against insured. In order to determine whether or not a restriction applies, an insurer must ask itself if its insured is an employer who is required to enroll in the provincial or federal workers’ compensation program, whether the injured party is an employee and whether the loss occurred in an employment context. This paper provides insight on how to determine if the injured party’s right to sue has been restricted by the relevant workers’ compensation legislation.

  Author(s) : Shawn O’Connor, Kelly Santini LLP

• 2010

  Title : Waiver of Subrogation

  An insurer’s subrogation on payment of a loss is a right, but it can be lost by waiver. This paper discusses the trends in the law of waiver of that right.

  Author(s) : By Gregory S. Miller, Lindsay Kenney LLP

• 2010

  Title : THE TRIPARTITE RELATIONSHIP BETWEEN INSUREDS, INSURERS AND COUNSEL: THE IMPORTANCE OF GOOD FAITH

  Tripartite Relationships: This article contains practical considerations for counsel and insurers.

  Author(s) : Nicholas A. Peters, Scott Hall, LLP

• 2010

  Title : AREAS OF POTENTIAL LEGAL LIABILITY FOR EMPLOYERS

  This article was prepared in conjunction with a seminar on employment practices liability insurance, and the various areas of employer liability that may or may not be covered under such policies. The article summarizes both the statutory and common law areas of potential liability for employers.

  Author(s) : Elizabeth J. Forster, Partner Blaney McMurtry LLP

• 2010

  Title : Surveillance: Hot or Not?

  In light of the enactment of the Personal Information Protection and Electronic Documents Act, (PIPEDA), Insurers must be that much more vigilant in their defence of an insurance claim, particularly as it pertains to ‘covert’ surveillance of a claimant. This article raises some questions as to the applicability of PIPEDA within a litigation context and offers the reader some helpful tips on how an Insurer might minimize its exposure to a potential complaint of a violation of the Act.

  Author(s) : Monika M.L. Zauhar, Cox & Palmer

• 2010

  Title : Towards a better control of abusive proceedings

  Quebec’s legislator recently amended the Code of Civil Procedure in an attempt to counter SLAPP Lawsuits. These amendments to the Code of Civil Procedure once again allow parties to seek partial dismissals in certain circumstances.

  Author(s) : Olivier Truesdell-Ménard, Donati Maisonneuve LLP

• 2009

  Title : E-Discovery And Document Disclosure

  If you are not familiar with E-Discovery it is time you acquainted yourself. Most superior courts across Canada are reviewing and evaluating their Rules with respect to discovery of documents. E-Discovery and the Sedona Canada Principles will be the guide in virtually all jurisdictions in Canada, probably within 5 years. Learn these principles now and they will serve you throughout your career.

  This paper will examine on a preliminary basis the present state of discovery and the issue of E-Discovery and document disclosure.

  Author(s) : Alan G. McIntyre, McKercher LLP

• 2009

  Title : One More for the Road: Burgeoning Trends in Commercial Host Liability

  Commercial host liability has always been a contentious issue amongst insurers, advocates, and businesses. The limit upon individual autonomy and the responsibility foisted upon commercial establishments has led to the proliferation of litigation against these commercial hosts for the conduct of intoxicated patrons. The Supreme Court of Canada has limited the extent of this liability in the social host context; however, the spectrum of liability for the most part remains uncertain. The authors examine what could be the next step in commercial host litigation with the scenario of liquor store liability or ‘dram shop liability’ in a Canadian, American and British context.

  Author(s) : Corinne S. Petersen & Kunal K. Nand, Chomicki Baril Mah LLP

• 2009

  Title : Employment Practices Liability (“EPL”) Insurance … the advantages of an EPL policy.

  The insurance market is continually evolving and developing new products to adapt to the clients’ reality. In recent years, the new human rights Charters, labour standards legislation, the public’s growing awareness of their rights, the increasing intolerance for injustice and the ubiquitous media have caused the number of lawsuits based on employment practices to multiply.

  Employers are increasingly exposed to actions before the courts of law and administrative tribunals seeking reparation for damages due to dismissal, discriminatory hiring practices, discriminatory working conditions, sexual or psychological harassment, and so on.

  EPL insurance policies are specifically designed to offer employers the means to shield themselves from the consequences of such potential actions.

  Author(s) : Geneviève Cotnam, Partner, Stein Monast LLP

• 2009

  Title : Dealing with difficult people

  On April 22, 2009, Risk Management Counsel of Canada, RMC, had the pleasure of welcoming at its Mississauga seminar, Dr. Perry Sirota, Clinical and Forensic Psychologist, who shared his formula on how to deal with difficult people. We are all surrounded by difficult people: whether it be family members, friends, colleagues or clients.

  Dr Sirota's text allows us to recognize different types of personalities understand what drives them and gives us some useful tips on how to interact with them.

  Note: This presentation was prepared by Dr Perry Sirota and it is his copyright. Any duplication or dissemination is prohibited without the prior consent of Dr Perry Sirota.

  Author(s) : Dr. Perry Sirota

• 2008

  Title : The Charter and the Insurance Law - The Implications of the Stricking down of Alberta’s Personal Injury Cap

  The author comments on the Alberta Court of Queen’s Bench decision in Morrow vs. Zhang that struck down the Minor Injury Regulation. The Court decided that the Regulation offended section 15 of the Canadian Charter by treating those with minor injuries differently than those with other injuries arising out of motor vehicle accidents.

  Author(s) : Kelly J. Robinson, Chomicki Baril Mah, LLP

• 2008

  Title : The Duty to Defend

  In Groupe DMR c. Kansa, the Court of Appeal revisited the insurer’s duty to defend. The Court summarizes the circumstances triggering the duty to defend and gives practical advice as to the different choices available to the insurer when he must appoint counsel.

  Author(s) : Geneviève Cotnam, Stein Monast LLP

• 2008

  Title : Joint, Several and Concurrent Liability : What’s the Difference ?

  The author explains the difference between joint, several and concurrent liability in multiple defendants claim and analyses the impact on settlement opportunities and liability exposure.

  Author(s) : Neil C. Carfra, Carfra & Lawton Lawyers

• 2008

  Title : Can an Insurer Who Has Agreed to Defend Later Deny a Duty to Defend ?

  This text studies the sensitive question of the waiver or estoppel argument in the context of the duty to defend under an insurance policy.

  Author(s) : Allison J. Klymyshyn, Kelly Santini LLP

 

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