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Whiten v. Pilot
award for punitive damages - Facts: insured's house burned down. insurer paid for living expenses, then cut off without notice, alleging arson
- Decision: 1m awarded (Trial: no evidence. jury award 1m; ON CoA: reduced to 100k; Supreme court: restored 1m)
- Rationale: high but rational (for punitive) as act was highly reprehensible to force unfair settlement (action wrong evident)
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Punitive damages - Proportionality
- Blameworthiness of defendent
- Vulnerability of plaintiff
- Harm done to plaintiff
- Need for deterrence
- Other punishements already imposed
- Advantages wronfully gained by defendant
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Blameworthiness / degree of misconduct - Considerations
- Whether planned and deliberate
- Intent and motive
- Length of misconduct
- Whether covered up
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Need for deterrence - When is defendant's financial situation relevant
- Defendant financial hardship
- Relevant to misconduct
- When lesser award would not achieve deterrence
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Somersall v. Friedman / Scottish and York
limits agreement - Facts:
- insured injured and planned to sue underinsured liable driver.
- insured entered into a limits agreement with driver; would not sue in xs of limit, without notifying own insurer
- insured sought to recover remainder from insurer, who refused to cover
- Decision: insurer has to pay (Trial: insurer doesn't have to pay; ON CoA / Supreme: insurer has to pay)
- Rationale:
- limits agreement does not affect insured's entitlement to recover damages at time of accident
- did not interfere with insurer’s right of subrogation after insured is fully indemnified
- However, SEF44 wording did prevent subrogation and IBC recommended amendments remove ambiguity
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Duty to defend cases
- Sansalone v Wawanesa: No defence for sexual assault as not covered by policy.
- Nichols v American Home: No defence for fraud as not covered by policy
- Broadhurst & Ball v American Home:
- Both have duty to defend and costs should be split equally
- if potential judgment potentially exceeds primary limit, all insurers have duty to defend
- Alie v Bertrand: excess insurer have duty to defend
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Sansalone v. Wawanesa
duty to defend - Facts:
- girl sexually assaulted by bus drivers and sued drivers
- insurers denied duty to defend due to policy exclusion of sexual or criminal acts
- Decision: no duty to defend (CoA).
- Rationale:
- intention to act is intention to injure which is excluded in policy
- When risk of injury is inherent in deliberate act so that injury is natural consequence
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Nichols v. American Home
duty to defend - Facts: Insured sues insurer for unreimbursed settlement costs in a case where he is unsuccessfully sued for fraud
- Decision: no duty to defend (CoA: there is duty as it is separate from duty to indemnify; Supreme: reverses)
- Rationale: no duty to defend as fraud is beyond scope of coverage;
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Problems with broad duty to defend
- Unfair to others in insurance pool
- Conflicts of interest
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Amos v. ICBC
coverage/wording issue - Facts: insured shot when gang surrounds his auto
- Issues: whether injuries arise out of ownership and use of car
- was accident from normal use of the car? yes
- link btw use of car and injuries? yes
- Decision: insured won (Supreme: reverses lower court)
- Rationale: normal use and there is a link -> injuries arise out of ownership and use of car
- ON policies: not applicable as wording says 'caused by' than 'arising out of'
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KP Pacific v. Guardian
classification of contract - Facts:
- insurer says Part 5 of BC Insurance Act (for fire policies) applies to multi peril policies and thus claim filed more than 1 year after occ of loss is denied.
- Insured says Part 2 applies, allowing claims filed within 1 year of proof of loss
- Decision: insurer has to pay (Trial: pro-insurer; Supreme: reverses)
- Rationale: multi peril policies are not fire policies and do not fall under Part 5
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Alie v. Bertrand & Frere Construction
coverage trigger - Facts: defective concrete requires replacement of basements of houses
- Decision (Court): both primary and excess insurers of construction company have duties to defend and indemnify
- Rationale: injury-in-fact
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Theories involving trigger of coverage
- Exposure theory
- Manifestation theory
- Injury-in-fact theory
- Continuous or triple trigger theory
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British Columbia v. Imperial Tobacco Canada Ltd.
- Facts:
- BC passed an Act to sue tobacco manufacturers for breach of duty to recover gov's HC costs in treating people suffering from related diseases
- manufacturers challenged constitutional validity
- Decision: constitutionally valid
- BC Supreme: not valid
- violated territorial limits of prov
- challenged judicial independence and rule of law
- BC CoA: overturned all
- Supreme: issues:
- ultra vires by reason of extra-territoriality? (no)
- inconsistent with judicial independence? (no)
- violate rule of law? (no)
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BC v. Imperial Tobacco Canada Ltd. - Gov enjoys reversed burden of proof that manufacturers must prove to avoid liability
- If gov proves:
- defendant breached duty
- exposure to cigarettes can cause or contribute to disease
- during breach, cigarettes were offered for sale in BC
- Court will presume that:
- claim population would not have been exposed but for the breach
- exposure caused or contributed to disease in that population
- Manufacturers must prove:
- breach didn't give rise to exposure
- exposure didn't give rise to diseases
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BC v. Imperial Tobacco Canada Ltd. - Arguments challenging constitutional validity of Act and ruiling
- Extra-Territoriality: act encompasses multiple provinces, not just BC, so not within province's power
- Violate judicial independence: burden of proof shifted which interfered with court's independent decision making
- Implicate rule of law: it was already decided what would happen in case
- not invalid by extra-territoriality: to make persons responsible for tobacco diseases suffered by BC residents (within power of province on property and civil rights). No other province has a greater relationship to cause of action
- does not violate judicial independence: even though duty of proof shifted to tobacco companies, judges still expected to evaluate evidence independently
- does not offend rule of law: defendants will be given a fair trial.
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Resurface Corp v. Hanke
issue of causation: - Facts: burned victim sues manufacturer for negligence in making gas and water tanks similar and placing them close
- Decision: victim dismissed
- Trial: dismissed:
- did not demonstrate foreseeability (he would mistake tanks) and causation (defendants caused accident not him)
- concluded it was his error not design
- CoA: trial erred wrt. foreseeability and causation analyses and failed to:
- consider evidence on design error: other workers made same mistake
- assess comparative blameworthiness; applied but for rather than material contribution
- Supreme: restored trial
- doesn't need to accept all evidence but enough to support findings
- no need to assess comparative blameworthiness since it was his error not design
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Resurface Corp. v. Ralph Robert Hanke - Principles for determining negligence
- But for as basic test to determine causation for multi-cause injuries: must show injury would not have occurred but for negligence of defendants
- Requirements for material contribution test to determine causation:
- Impossible to prove negligence using but for due to factors outside plaintiff's control
- Defendant breached duty of care and exposed plaintiff to unreasonable risk and plantiff suffered a loss
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Purpose of MIR
AB legislative reform: 4k cap on nonpecuniary damages for minor injuries to address - rising costs due to nonpecuniary damages incl minor soft tissue injuries
- increases in uninsured drivers
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Morrow v. Zhang
- Facts:
- reform: intro 4k cap to reduce cost in AB
- injured challenged cap: discriminate against MI victims / violates charter
- treat them as malingerers
- force them to certain types of treatments
- discriminate against injury type
- Trial: discrimination -> remove cap
- CoA: overturned. not discriminatory
- trial failed to consider big picture (to reduce premium for everyone, rather than to impose restrictions on MI)
- doesn't force MI to certain types of treatment (only with a reduction in awards)
- no perception of malingerer
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PIPEDA report of findings - Concerns of use of credit score
meaningful consent - Facts: insured property rates increase due to use of credit info by insurer, and said used without consent (insurance app did warn but not meaningful)
- Concerns:
- Credit info collected for one purpose but used for another
- Consent not meaningful thus inadequate
- Notice sent to p.h.'s inadequate. Said 'may' use credit score but used it every time.
- Insurer's info on website insufficient.
- Finding: Consent must be meaningful
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Catastrophic impairment definition
- mental or behavioural impairment
- Class 4 impaired catastrophic
- Class 5 extreme catastrophic
- 4 criteria to qualify class 4
- Daily function
- Concentration
- Social function
- Ability to work
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Aviva Canada v. Pastore
- Facts:
- insured injured and claimed under Class 4 CAT impairment
- Aviva refused to cover, claimant took DAC assessment:
- CAT impared (mental disorder satisfied defn in SABS)
- 1 area sufficient to meet defn
- Trial (delegate decision): Aviva pays:
- agree with DAC
- cumulative basis reasonable if impossible to factor out physical pain
- Appeal:
- ON Divisional Court - should meet all 4
- ON CoA: reversed Trial. Aviva pays
- is it under standard of review? yes. decision logical and transparent
- one area sufficient? yes
- not necessary to remove from all physical pain if difficult to separate mental and physical
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Aviva Canada v. Pastore (2 main issues)
- whether an assessment of Class 4 impairment in just one of the areas of functional limitation was sufficient to meet the definition of CAT impairment - yes
- whether necessary to remove from consideration all physical pain in conducting the assessment - not possible to factor out physical pain then it's assessment impairment on a cumulative basis.
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Kusnierz and Economical
- Facts: insured suffered physical and mental injuries
- Issues: whether to combine physical and mental to determine CAT (definition)
- >= 55% impairment of whole person impaired
- results in class 4 or 5 impairment due to mental disorder
- Trial: against combining (SABs did not specify should be combined)
- CoA: overturned on appeal, can be combined and qualified CAT impairment
- Aftermath: might lead to more people being categorized as CAT, but
- due to rarity of cases, won't have sig impact on insurance rates
- more fair and in line with modern values.
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