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We're pleased to announce that both Stuart Forbes, Q.C. and Morris Chochla have been named as "National
Post-Best Lawyers in Canada" in insurance law.
Best Lawyers has been ranking American lawyers since 1982, and recently announced a partnership with "The
National Post" to publish Best Lawyers in Canada. Lawyers are selected by their peers for
inclusion.
See: Legal Post, January 10, 2007
National Post Best Lawyers in Canada
January 22, 2007 in Firm News and Announcements | Permalink | Comments (0)
A shooting victim who sought to enforce his judgment against the shooter's homeowners insurance policy has lost his case at the Ontario Court of Appeal.
The victim won a trial award of $800,000 against the shooter, which remained unpaid. He then sought to recover the monies under the shooter's homeowners insurance policy, which is provided for under Ontario's Insurance Act. The victim brought a motion to have a judge determine whether there was coverage, and won. The motions judge held that the policy provision excluding claims arising from criminal and intentional acts did not apply, despite the fact that the shooter had pleaded guilty to the offence of "criminal negligence causing bodily harm." In addition, the motions judge interpreted a provision of the Insurance Act as requiring the person causing the harm to intend the loss or damage, and thus held the policy exclusion inapplicable.
On appeal, the court held that the conviction for criminal negligence was a "criminal act" as contemplated by the policy, and that the Insurance Act could not be interpreted as a limitation on that exclusion. This decision will be of some benefit to insurers as it clearly indicates that coverage for criminal behaviour can be excluded, regardless of the "intent" of the insured.
See Eichmanis v. Wawanesa Mutual Insurance Company
Shona Bertrand (sbertrand@forbeschochla.com)
March 14, 2007 in Insurance Coverage, Personal Injury, Recent Cases | Permalink | Comments (0)
Once again, parties can agree to vary the deadlines for starting lawsuits, thanks to changes to Ontario's Limitations Act.
Generally, a person or company has two years to commence a claim. The clock starts to "tick" when the facts supporting the claim are discovered, or ought to have been discovered. There is also a 15 year "ultimate" limitation period, effectively "killing" claims 15 years after the act or omission took place. These deadlines could not be varied by agreement, contrary to popular practice before the legislation came into force in January, 2004.
Effective October 19, 2006, agreements can once again be made to extend or suspend the running of the limitation period. The 15 year limitation period can only be varied if the claim has been discovered. The change is certain to impact the design and construction industries, given that litigation is most often commenced against consulting professionals upon project completion, which often takes years.
Read the Limitations Act
Shona Bertrand
sbertrand@forbeschochla.com
January 12, 2007 in Civil Procedure, Construction | Permalink | Comments (0)
The Ontario Court of Appeal has considered the law relating to psychiatric injury and overturned a decision awarding damages of almost $350,000 to a man who saw a dead fly in an unopened bottle of water.
In Mustapha v. Culligan Canada, Mr. Mustapha suffered from nightmares, water phobia, mood disorders and a host of other ailments after observing the dead fly when replacing the bottle on his water cooler. Both he and his wife vomited and suffered abdominal pain as a result of the incident, but the trial judge held that those injuries were not compensable.
The issue considered by the Court of Appeal was whether a defendant might be liable for damages for psychiatric harm where the harm, by an objective standard, is an exaggerated reaction to a relatively minor incident by an obsessive person with particular sensibilities. The Court reviewed the law relating to psychiatric harm in some detail, and ultimately held that for liability to attach in such cases, it must be reasonably foreseeable that a person of normal fortitude is likely to suffer injury as a result of careless conduct. Mr. Mustapha evidently was not of "normal fortitude."
Download C43429.pdf
Shona Bertrand
sbertrand@forbeschochla.com
December 20, 2006 in Personal Injury, Recent Cases | Permalink | Comments (0)
The Supreme Court of Canada is considering two Ontario appeals involving coverage for injuries under automobile insurance policies but involving incidents other than typical car accidents.
The first case, Citadel General Assurance Co. v. Vitlingham, involves a young man who was seriously injured when two men dropped a boulder from an overpass onto a freeway in North Carolina. At issue on appeal is whether Mr. Vitlingham is entitled to additional insurance benefits under what is commonly known as the "underinsured motorist coverage." This provision allows an injured person to recover damages from its own insurance company if the party responsible for the injuries is underinsured and the injuries arose directly or indirectly out of the use or operation of a motor vehicle. The Court of Appeal granted judgment in favour of Mr. Vitlingham.
In a related case, the Court is also considering whether a claim arising out of a hunting accident is a claim for damage arising directly or indirectly from the operation of a vehicle. In 1999, Fred Wolfe mistakenly shot fellow hunter Harold Herbison in the leg. He mistook him for a deer after his headlights illuminated him as he was walking. The Court of Appeal held that the use of the truck was sufficiently connected to the incident and ordered the insurer to pay $832, 272.
The Insurance Bureau of Canada in intervening in the case.
Link: Top court to define 'auto accident'.
Shona Bertrand (sbertrand@forbeschochla.com)
December 11, 2006 in Insurance Coverage, Personal Injury, Recent Cases | Permalink | Comments (0)
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