Landmark Cases Flashcards

Question

Alie v Bertrand Frere Construction - Ruling at initial trial (Indemnity Issue)

Answer 1

INDEMNITY TRIGGER: Main trigger theory was Injury-in-Fact: - is based on the circumstances when loss occurred (eg: CGL - damage is suffered within the policy period) But since the exact timing within many various policy periods was impossible to determine, losses were proportioned on a continuous/progressive basis - therefore, it was combination of Injury-in-Fact and Triple Trigger Theory

Answer 2

DEFENCE TRIGGER: - excess/umbrella policies have duty to defend provided... - ... they follow the form of the underlying policy AND do not specifically exclude the duty to defend

Answer 3

- the insured had a fire on their premises causing the release and contamination of pollutants on neighbouring properties

Answer 4

Does the insurer have a duty to defend - pollution/contamination is EXCLUDED by the policy - but the insured argued that the cause of the loss was fire & therefore should be covered

Answer 5

The chambers judge held for the insured (that the insurer must defend): - policy terms are ambiguous - should not exclude contamination caused by fire

Answer 6

Insurer's appeal is allowed (no duty to defend): | - third party claims were for CONTAMINATION not for fire (thus excluded from coverage)

Answer 7

Other Cases where there is no duty to defend and no duty to indemnify: - Sansalone v Wawanesa (sexual abuse) - Nichols v American Home Insurance (fraud) Precision Plating is different however: - pollution/contamination was clearly excluded - the insured argued that the cause of loss was fire not pollution (unsuccessful on appeal)

Answer 8

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

Answer 9

PURPOSE TEST: did the accident result from ordinary activity that the vehicle is meant for? YES CAUSALITY TEST: is there a causal relationship between the use of the vehicle and the injury? YES, because the shooting wasn't random

Answer 10

1) the BC Supreme court dismissed the driver's claim 2) the court of appeals upheld the judgement of the BC Supreme Court 3) i) the Supreme Court of Canada held that appeal should be allowed ii) the answer is YES to both the purpose and causality tests iii) the plaintiff received no-fault benefits because damage was 'ARISING OUT OF' use of the vehicle

Answer 11

- not strictly applicable in Ontario | - in Ontario, the policy wording is 'caused by' rather than 'arising out of'

Answer 12

- there was a hotel fire - the proof of loss was submitted (to the insured) within 1 year of the fire - the claim was submitted (to the insurer) under the 'all-risk' category i) within 1 year of the proof of loss ii) but MORE than 1 year after the fire - the insurer rejects the claim under Part 5 of the BC Insurance Act

Answer 13

- does Part 5 apply (fire provisions) or Part 2 (general provisions)? - important because Part 2 allowed the claims submitted within 1 year of the proof of loss (even if it is 1 year after the fire)

Answer 14

1) the ruling was held for the insurer at the original trial 2) ruling was upheld on appeal 3) the ruling was overturned (unanimously) at the Supreme Court - modern multi-peril policies don't fit into the fire act (plaintiff wins)

Answer 15

Multi-peril policies are governed by general provisions of insurance legislation, NOT specific provisions that apply to fire insurance.

Answer 16

- Hanke was badly burned in a Zamboni accident: so he sued the manufacturer - Hanke claimed: the gas and water tanks looked similar & were easily confused

Answer 17

ISSUE: What was the cause of the injury? STANDARD CAUSATION TEST: the 'but for' rule ALTERNATE CAUSATION TEST: 'material contribution' (use only when the 'but for' rule can't establish causation

Answer 18

'but for' causation test: Would the result have occurred BUT FOR the act or omission of the defendant if YES: defendant is not liable if NO: defendant is liable

Answer 19

- requires that a negligent action had MATERIALLY CONTRIBUTED to the risk of harm - less rigorous than the 'but for' test

Answer 20

TRIAL: defendant wins REASONING: apply the 'but for' test - would the explosion still have occurred BUT FOR making the gas and water tanks similar? - YES, so the defendant is NOT liable

Answer 21

APPEAL: plaintiff (Hanke) wins REASONING: apply 'material contribution' test - appeals judge stated that the trial judge failed in a Foreseeability & Causation analysis - appeals judge then applied the 'material contribution' test

Answer 22

Supreme Court: defendant wins | REASONING: apply the 'but for' test, NOT the 'material contribution' test since accident WAS NOT reasonably foreseeable

Answer 23

1) the 'but for' test CAN'T establish causation | 2) the accident MUST be reasonably foreseeable

Answer 24

- Alberta introduced legislation to address (availability and affordability) - trial challenged the constitutionality of a $4K cap on non-pecuniary damages for minor injuries

Answer 25

1) the cap stigmatizes minor injuries because it treats victims as malingerers 2) cap is discriminatory because it treats minor injuries differently regarding non-pecuniary damages

Answer 26

1) cap is discriminatory & is struck down at initial trial 2) appeal reverses the original ruling - cap is designed to lower premiums for EVERYONE, not discriminate against minor injuries (cannot be appealed further)

Answer 27

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

Answer 28

PRIVACY COMMISSIONER: the use of credit score is acceptable

Answer 29

- commissioner notes that the standard insurance form is deficient and misleading - consent must be meaningful (website said credit score MAY be used, but it was ALWAYS used) - the insurer should be explicit regarding its intent

Answer 30

- victims sustained severe complications from a motor vehicle accident - sought for catastrophic impairment designation for their injuries - Aviva rejected the CAT impairment designation

Answer 31

It is the marked impairment significantly impeding useful functioning in at least 1 of (DSCW): - Daily living - Social interaction - Concentration - Work activities

Answer 32

- for Class 4 designation, is it enough to show marked impairment in just 1 of the functional categories? - for Pastore, this was Daily living

Answer 33

``` DAC: marked impairment in daily living constitutes as a Class 4 CAT impairment Arbitration: delegate affirmed the DAC (class 4 impairment is upheld) ```

Answer 34

Divisional Court: - judicial review requested by Aviva reversed prior decision - judge stated that the delegate exceeded their jurisdiction - thus, there was not CAT impairment

Answer 35

- divisional court applied the standard of review of correctness instead of reasonableness - therefore, the class 4 CAT impairment was reinstated

Answer 36

- there is currently a big gap in compensation between non CAT & CAT impairment - there should be a provision for something between minor injury and a CAT impairment

Answer 37

The insured is injured in an accident and claims enhanced benefits under SABS (Statutory Accident Benefits Schedule) for 'catastrophic impairment'.

Answer 38

Can the physical impairment of 50% be combined with the mental impairment of 55% to reach the 55% threshold for SABS (Statutory Accident Benefits Schedule) CAT impairment?

Answer 39

TRIAL: NO CAT impairment - SABS (Statutory Accident Benefits Schedule) does not explicitly state that physical & mental impairment can be combined

Answer 40

APPEAL: allowed CAT impairment - combining physical and mental % seemed a more reasonable and modern interpretation - few would qualify - thus, NO material impact on AA (Availability & Affordability)

Answer 41

A 20-year old woman is catastrophically injured in a head-on collision with an oncoming school bus due to an icy road in Sudbury.

Answer 42

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

Answer 43

- the city was liable for the plaintiff's injuries | - salting & plowing occurred but were not sufficient given the storm conditions

Answer 44

The ruling was UPHELD: the court of appeal rejected the defendant's 'statutory defence' and upheld the trial judge's decision - the city is expected to ADAPT to conditions, NOT just blindly follow procedures

Answer 45

- the city attempted a 'statutory defence'. it claimed no liability because: i) it could not be reasonably expected to know about the reformed ice ii) took reasonable steps to maintain the roadway

Answer 46

- this case was essentially about 'standard of care' - appeal judge implied that the standard of care was breached - a qualified city worker should reasonably have foreseen the icy road conditions and taken steps to mitigate them

Answer 47

- Mr Saadati (plaintiff) sustained injuries in an auto accident when his vehicle was hit by Mr. Moorhead's (defendant) vehicle - accident occurred on July 5, 2005

Answer 48

- 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 49

Physical injury claim: Rejected by trial judge Mental injury claim: - evidence from plaintiff's expert psychologist was not enough to establish psychological injury - but testimony of Mr. Saadati's family and friends was sufficient proof of psychological injury thus, - Judge awards $100k in non-pecuniary damages

Answer 50

- trial judge's decision overturned by BC Court of Appeal | - Mr. Saadati had not demonstrated a medically recognized psychiatric or psychological injury

Answer 51

- Supreme Court of Canada: unanimously reversed the BC Court of Appeal (June 2017) Reason: recovery from 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 and prolonged, and rises above ordinary anxieties and fears - > all criteria were met (note: plaintiff does not have to prove a specific recognized mental illness)

Answer 52

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

Answer 53

- Deterrence - Denounce - Retribution

Answer 54

``` Resurfice Corp v Hanke Somersall v Scottish & York Whiten v Pilot Amos v ICBC Nichols v American Home Insurance KP Pacific v Guardian Saadati v Moorhead ```

Answer 55

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

Answer 56

Nichols v American Home Insurance

Answer 57

Aviva v Pastore | Kusnierz v Economical

Answer 58

NO, as per: - Sansalone v Wawanesa - Nichols v American Home Insurance - Precision Plating v Axa Pacific

Landmark Cases Flashcards

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