Victim of negligent Toronto lawyer wins partial compensation after years of court battles

A man who lost hundreds of thousands of dollars because of a negligent Toronto lawyer has finally received partial compensation, years after winning a court judgment that has proven unenforceable.

The $150,000 payout to Nalliah Balachandran late last month came after The Canadian Press reported in December on a glaring gap in the insurance system designed to protect victims of unscrupulous or incompetent Ontario lawyers.

“This money will help,” Mr. Balachandran said. “At least I can pay off some debts.”

Mr. Balachandran, 64, now of Calgary, had been unable to collect on $188,646 in damages an Ontario Superior Court justice awarded him in 2012 against lawyer Michael (Mike) J. Webster, who was disbarred after an avalanche of complaints.

Other cases The Canadian Press reviewed turned up several people who had lost out on compensation for car-crash injuries or ended up in jail because lawyers failed to do their jobs. None was able to collect on court-ordered damages, even though all members of Ontario’s legal profession must carry liability coverage through the insurance company known as LawPro.

Despite judicial criticism of the situation, LawPro denies coverage when lawyers fail to report a client’s claim against them or refuse to help defend the action. The result is usually disbarment – and clients left without access to compensation.

Several lawyers trying to help hapless clients expressed dismay that LawPro, owned by the 50,000-member Law Society of Ontario and with assets of close to $735-million, would take that position.

“It’s very unfair and unfortunate – and to my mind shocking,” one lawyer, Ava Hillier, said last year. “People need to know that they’ve got nothing if their lawyer just decides not to pick up the phone.”

What lawyers involved in such cases said they had never heard of is a policy the law society adopted in 1997. It provides victims of lawyers access to an internal compensation fund when LawPro declines coverage. The fund can reimburse victims up to $500,000.

Days after an interview with its treasurer last November, the law society updated its website to explicitly refer to the obscure policy. Five claims, including Mr. Balachandran’s, have since been made against the fund, one quarter of all claims in 1997. Two have been settled.

A spokeswoman said that over the past 20 years, the fund has paid out a total of $552,565 for 14 claims involving 13 lawyers – a fraction of the $100-million LawPro lays out for claims annually.

“Our focus as the regulator is on protecting the public, and, as per our policy, the Law Society’s compensation fund will consider claims where LawPro coverage is denied in special circumstances – where a lawyer fails to report a claim to the professional liability insurer or fails to co-operate with the insurer,” Susan Tonkin said.

Mr. Balachandran, who works for Alberta Health Services, received his cheque for the maximum amount in effect at the time of his initial claim. A timely payout, he said, would have spared him and his wife years of stress and tens of thousands of dollars in interest on mounting debts he still can’t pay off.

He also faulted the society for its previous failure to make the compensation fund widely known, potentially saving him from a fruitless battle to collect the almost $200,000 Mr. Webster now owes him and which the law society will try to recover.

As important, he said, is the law society’s move to transparency about the 1997 policy.

“It’s going to help not just me but the whole community,” Mr. Balachandran said.

LawPro, which has been subject to several lawsuits over its refusal to cover such cases, has called such situations rare. It has defended the mandatory insurance program as being in the best interests of the public and Ontario lawyers.

Manitoba Public Insurance survey finds drivers shout, make rude gestures or commit ‘extreme actions’

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Hub International Acquires Ontario-based PDF Financial Group Inc.

Chicago, October 8, 2019Hub International Limited (Hub), a leading global insurance brokerage, announced today that it has acquired PDF Financial Group Inc. (PDF). Terms of the transaction were not disclosed.

Based in Toronto, Ontario, Canada, PDF is an independent brokerage offering consulting and outsourcing services for employee benefit programs, human resources, and related financial advice. Peter Demangos, Founder and President of PDF, will join Hub International Ontario Limited (Hub Ontario).

The move continues to reinforce Hub’s ongoing Canadian employee benefits growth and services strategy to expand its best-in-class employee benefits and retirement solution, addressing the challenges clients are facing, including in benefits communication, health and wellness, and retirement.

About Hub’s M&A Activities
Hub International Limited is committed to growing organically and through acquisitions to expand its geographic footprint and strengthen industry and product expertise. For more information on the Hub M&A experience, visit WeAreHub.com.

About Hub International
Headquartered in Chicago, Illinois, Hub International Limited is a leading full-service global insurance broker providing property and casualty, life and health, employee benefits, investment and risk management products and services. With more than 11,000 employees in offices located throughout North America, Hub’s vast network of specialists provides peace of mind on what matters most by protecting clients through unrelenting advocacy and tailored insurance solutions. For more information, please visit www.hubinternational.com.

Hurricane Dorian Caused Over $100 Million in Insured Damage

October 4, 2019 (HALIFAX) – Hurricane Dorian hit Atlantic Canada on September 7 causing over $105 million in insured damage, according to Catastrophe Indices and Quantification Inc. (CatIQ). Seventy per cent of this amount is for damage to personal property, 25% is for damage to commercial property and the remaining amount is for damage to automobiles.

Province Insured damage*
New Brunswick $22.5 million
Newfoundland & Labrador $2.5 million
Nova Scotia $62.2 million
Prince Edward Island $17.5 million
Quebec $300,000
Grand Total: $105 million

*Initial estimates 

Hurricane Dorian wreaked havoc from the Bahamas to Atlantic Canada in early September. The weather system travelled through Atlantic Canada from September 7 to 8, 2019,and the cleanup lasted much longer. Halifax, Moncton and much of Prince Edward Island suffered a large portion of the damage, though damage reports were widespread across Atlantic Canada.

On September 7, Dorian became a post-tropical storm but maintained hurricane strength when it made landfall to the southwest of Halifax, with estimated sustained winds of 155 km/h. On the morning of September 8, the system hit the northeastern Gulf of St. Lawrence with strong southeasterly winds in Newfoundland. In the evening, the system tracked to the northeast across Newfoundland’s Great Northern Peninsula, with wind gusts ranging from 90 to 157 km/h.

Due to rainwater-saturated ground and trees being in full leaf, many large trees were uprooted across Atlantic Canada, and the region experienced numerous power outages. Heavy rainfall also caused road washouts and flooding of homes and businesses. The Magdalen Islands were severely affected as homes, cottages, and boats were damaged, and trees were uprooted; in several cases, and some cottages were blown off their foundations.

“Hurricane Dorian is another example of how devastating Mother Nature can be” said Amanda Dean, Vice-President, Atlantic, Insurance Bureau of Canada (IBC). “Severe, unpredictable weather like this is becoming more frequent, resulting in higher costs to homeowners, insurers and governments. Last year, insured damage from severe weather across Canada exceeded $2 billion, the fourth-highest amount of annual losses on record. That alarming trend has continued in 2019, with over $1 billion in insured losses recorded already this year.”

As the financial cost of the changing climate has been increasing, IBC has been working closely with all levels of government to increase investments to mitigate the future impacts of extreme weather and build resilience to its damaging effects. IBC is advocating for improved building codes, better land-use planning, incentives to shift the development of homes and businesses away from areas at highest risk of flooding, and investment in new infrastructure to protect communities from floods and fires.

The financial costs of severe weather are widespread adversely impacting insurers, policyholders and taxpayers, This is why all stakeholders need to come together to reduce the financial strain caused by floods and other severe weather events. For every dollar paid out in insurance claims for damaged homes, vehicles and businesses, Canadian governments and their taxpayers pay much more to recover the public infrastructure damaged by severe weather.

The amount of insured damage is an estimate provided by CatIQ (www.catiq.com) under licence to IBC.


About Insurance Bureau of Canada

Insurance Bureau of Canada (IBC) is the national industry association representing Canada’s private home, auto and business insurers. Its member companies make up 90% of the property and casualty (P&C) insurance market in Canada. For more than 50 years, IBC has worked with governments across the country to help make affordable home, auto and business insurance available for all Canadians. IBC supports the vision of consumers and governments trusting, valuing and supporting the private P&C insurance industry. It champions key issues and helps educate consumers on how best to protect their homes, cars, businesses and properties.

P&C insurance touches the lives of nearly every Canadian and plays a critical role in keeping businesses safe and the Canadian economy strong. It employs more than 128,000 Canadians, pays $9.4 billion in taxes and has a total premium base of $59.6 billion.

For media releases and more information, visit IBC’s Media Centre at www.ibc.ca. If you have a question about home, auto or business insurance, contact IBC’s Consumer Information Centre at 1‑844‑2ask-IBC.

“I discovered water damage in my home. Will insurance cover me?”

The short answer, unfortunately, is “that depends.” Here are the variables that come into play when homeowners seek water damage protection.

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Q: My washing machine has been leaking for years and we only just learned of the leak and the resulting damage because of staining on our basement ceiling below. Will my home insurance cover this?
–Alison

A: While water damage is almost always the same—destroyed floors, mouldy drywall, and potentially destroyed electrical and heating systems—the cause can significantly change whether or not the damage is covered by your insurance.

Turns out, how water enters your home dictates whether or not the damage will be paid by you, out of pocket, or covered by your home insurance policy.

This should cause all homeowners concern. Why? Because flooding happens so frequently. Setting aside the incidental floods, such as pipes breaking or washing machines leaking, natural floods, such as those caused by snowmelt runoff or raised river banks, occur fives times as often as wildfires. In fact, natural overland floods are the second most frequent natural disaster in Canada, according to Dan Sandink, director of research at the Institute of Catastrophic Loss Reduction (ICLR).

Sadly, residents in Ontario, Quebec and New Brunswick are now intimately aware of how devastating a flood can be to both property as well as to someone’s financial well-being. In April 2019, CTV Newscalculated that 6,425 homes had been flooded in Quebec alone. Another 3,508 were surrounded by water. Another 21 Ottawa homes were voluntarily evacuated, while 80 roads in New Brunswick had been closed.

According to Canadian Forces, 2,000 troops were deployed to Eastern Canada to help with flood efforts, and more than one million sandbags were used in the nation’s capital, Ottawa.

This doesn’t bode well for homeowners across Canada, who will eventually feel the burden of rising premiums to cover insured losses. This is on top of the $1.9 billion in insured losses that Canadians already sustained in 2018—the fourth-highest amount on record, according to the Insurance Bureau of Canada.

What’s worse is knowing that a standard homeowners’ policy (or tenant insurance) doesn’t provide coverage in the event of flood damage. While government relief may be available for uninsurable damage, that relief is often slow to materialize and insufficient to cover the cost of repair, leaving families to pick up the pieces.

You may be able to purchase flood insurance—known as overland coverage—depending on whether or not you live in a flood-prone zone. And even if it is available in your area, however, you must also purchase sewer back-up coverage, which is typically far more available.

But what about floods that are not caused by natural disasters? What about the floods caused by burst pipes or cracked foundations or, in your case, Alison, a leaky washing machine?

In general, standard (also known as comprehensive) homeowners’ insurance may help cover damage caused by leaking plumbing if the leak is sudden and accidental, such as if a washing machine supply hose suddenly breaks or a pipe bursts. Keep in mind, this sudden, accidental flood cannot occur when the home is vacant for more than 48 hours (for some insurance providers this drops to 24 hours), which is why it’s important to have a trusted friend or family member check on your home every day or so to make sure everything is alright while you are away on vacation.

But what about slow leaks? Turns out this is where coverage gets grey and fuzzy. While most policies won’t cover damage resulting from poor maintenance—for instance, damage due to a leaking toilet you failed to repair— that doesn’t mean that all slow leaks are denied coverage.

What follows will help you understand when you’re covered, versus what’s your responsibility.

READ MORE HERE: 

No Underinsured Coverage For Ontario Truck Driver

Article by Brian Sunohara

In Kahlon v. ACE INA Insurance, 2019 ONCA 774, the Ontario Court of Appeal held that a commercial truck driver was not entitled to underinsured coverage from either his personal automobile insurer or a fleet insurer.

Overview

Kahlon was involved in a serious accident in Florida. He had been operating a truck. He stepped out of the truck to see what was causing a traffic delay and was struck by another vehicle. The at-fault driver only had $20,000 in liability insurance.

Kahlon was insured under a personal automobile policy in Ontario with Allstate. The company for which Kahlon was operating the truck had fleet insurance in Ontario with ACE INA.

On a motion, Justice Whitten determined that Allstate was obliged to respond for underinsured coverage and that ACE INA was not required to respond. The Court of Appeal held that neither Allstate, nor ACE INA, was responsible for underinsured coverage.

Purpose of Underinsured Coverage

The purpose of underinsured coverage is to protect an insured who may be involved in an accident with a driver who has low liability insurance limits. The insured’s own insurer must make up the shortfall in damages, up to the insured’s policy limits.

Although underinsured coverage is optional, most personal automobile policies in Ontario have such coverage.

However, expert evidence showed that commercial fleet insurers in Ontario have not offered underinsured coverage in respect of heavy commercial vehicles for around 15 years. They stopped doing so because of the increased risk posed by truck fleets travelling into the United States. Many drivers in the United States have very low liability insurance limits.

OPCF 44R Endorsement

In Ontario, the OPCF 44R endorsement governs underinsured coverage.

Section 22 of the OPCF 44R endorsement states: “Except as otherwise provided in this change form, all limits, terms, conditions, provisions, definitions and exclusions of the policy shall have full force and effect”.

Therefore, the conditions in the Ontario Automobile Policy (OAP 1) are applicable to underinsured coverage.

Section 2.2.3 of the OAP 1 provides that, if an insured is driving a vehicle not described on the policy, that vehicle must not have a gross vehicle weight rating of more than 4,500 kilograms.

In other words, the OAP 1 excludes coverage for heavy commercial vehicles.

Court of Appeal’s Decision

Since Kahlon was operating a heavy commercial vehicle, the Court of Appeal said that he was not entitled to underinsured coverage from Allstate.

Further, underinsured coverage was not available under ACE INA’s fleet policy because that policy contained an endorsement which restricted such coverage.

Specifically, the endorsement provided that underinsured coverage was only available when the driver was operating a private passenger vehicle or light commercial vehicle, not a heavy commercial vehicle.

The endorsement was held to be applicable even though it was not in an approved form.

Conclusion

No underinsured coverage whatsoever was available to the plaintiff. Since the plaintiff sustained serious injuries, there will likely be a shortfall in his recovery of damages, unless the at-fault driver has sufficient assets to personally satisfy a judgment.

The Court of Appeal found this to be an unfortunate, but necessary, result, noting that “this outcome follows from the decision of the provincial government many years ago not to make underinsurance coverage mandatory”.

The Court of Appeal concluded: “courts have no authority to simply override contractual language in order to force the provision of coverage where none is contemplated by the existing language of the insurance policy and the endorsement, just because they might consider it good public policy to do so. This is the business of the provincial government, not the courts”.

Rogers Partners LLP is an experienced civil litigation firm in Toronto, Ontario. The firm represents insurers and self-insured companies in numerous areas, including motor vehicle negligence, occupiers’ liability, product liability, professional negligence, construction claims, statutory accident benefits, disability benefits, municipal liability, medical negligence, sexual abuse, and insurance coverage disputes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: Mondaq

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