The frightful weather means one thing: Snowbirds will be or have already left for southern destinations.
A report by the Canadian Trade Commissioner estimates close to 500,000 Canadian snowbirds spend their winter in Florida.
But with the Ontario government cancelling OHIP’s Out-of-Country Travellers Program in January 2020, insurance experts are advising snowbirds to check their health coverage.
“As it stands today, the province offers $400 a day, out-of-country medical coverage,” said Anne Marie Thomas, of insurancehotline.com
“I mean it sounds like it would be a lot but that all depends on what happened to you. So, it’s not a significant amount but it’s a good reminder, Ontarians, we’re losing this,” added Thomas. “Make sure you purchase travel insurance more than ever because (as of January 2020), you have zero coverage.”
The reason for this, says Thomas, is simple.
“The premier’s office (says) it will save Ontarians $83 million a year if we don’t offer this. So $83 million tells you people were using this, right?” said Thomas, who added it’s important for people to know the details of their coverage.
“Some people have (travel insurance) through work and so they feel that they’re covered, but you may not be covered for everything. You probably would not be covered under your work policy if you were in Cuba and you were hang gliding and something happened to you,” she added. “Very often …, if you’re injured during an extreme sport, you could potentially be declined a claim because an extreme sport, in a lot of cases, is excluded.”
A recent survey by insurancehotline.com found that 40 % of Canadians believe the cost of a four-hour emergency medical evacuation would be $2,000. In reality, it can cost tens of thousands of dollars.
Alberta drivers could possibly see hikes of 12 per cent or higher to their auto insurance rates in the new year, after a cap that kept them artificially dampened was terminated by the province this year.
The insurance industry, and Premier Jason Kenney, said Friday there has been trouble in the industry over the recent years as payouts exceeded money brought in through premiums.
The possible increases come after the province decided not to renew the five per cent cap on rates the previous NDP government put in place in 2017. The Automobile Insurance Rate Board (AIRB), an independent regulatory body, will now be responsible for approving insurance rate hikes.
Kenney said Friday insurance companies were losing money in Alberta due to the cap.
“Part of this is because we were facing the prospect of bankruptcies in the industry, leading to less competition which would ultimately be really bad for consumers,” Kenney said
“I understand one of the reasons why the industry has been losing money, paying out more in benefits than receiving in premiums.”
That sentiment is echoed by the Insurance Bureau of Canada’s Western vice-president Celyeste Power.
“Unfortunately, premiums have been increasing for the past four years. The rate cap, while I think it tended to try to push rates down the road and not increase rates, (it) did not lead to actually any decreased rates, some people still saw rate increases under the rate cap of 30, 40 per cent.”
A silver lining to the situation, Power said, is Alberta’s competitive market.
“Not all insurers are in the exact same position. Not all insurers are going in for the same amount of rate change. So it’s a competitive market,” said Power.
“That’s key for consumers to shop around to find the right product that meets their budget needs.”
But it’s unclear right now just how much the rates will increase until the AIRB releases those numbers.
“A lot of companies are in different positions and so they’re not only just looking at the markets differently, and all in their own unique competitive way, but they also look at each consumer differently,” said Power.
“There’s a variety of factors that go into coming up with a premium for each individual.
“Ultimately, when claims increase and no fixes are made, premiums then will follow.”
12 per cent is the ‘average’
However, George Hodgson, CEO of the Insurance Brokers Association of Alberta said on average, companies were losing about 12 cents on every dollar they were bringing in.
“You can expect that the average rate increase would be somewhere north of that 12 per cent in order to bring the industry back to profitability,” said Hodgson.
“That’s an average. In some cases, it might be less, it might be zero. In other cases, it might actually be a fair bit more than 12 per cent.”
Kenney added personal injury claims have been “growing massively,” contributing to higher premium costs.
“Lawyers have found loopholes through the restrictions on personal injury awards that were established by the Klein government,” Kenney said.
“Those restrictions brought control to the cost of insurance in Alberta but now, as I understand it, personal injury awards have been growing massively, year after year after year and that’s ultimately what’s forcing up premium costs.”
Kenney said his government will be looking into closing those loopholes.
“How can we frankly close legal loopholes that have created this huge and unacceptable cost inflation for insurance.”
Rate increases ‘unfair’: NDP
NDP MLA Sarah Hoffman said in response to Kenney’s comments that the rate increases wouldn’t be fair to consumers.
“I think it’s really disrespectful to people paying insurance to say well, we just need to do this otherwise companies are going to leave,” Hoffman said.
She added the same concerns from the insurance industry were brought up when the NDP were in government.
“I get it, their job is to fight for their profit margins, our job as elected officials is to fight for ordinary folks and make sure we have a fair system and a five per cent cap seemed fair, and they stayed.”
Power said the key for consumers will be to shop around and ask questions.
“Ask about bundling, ask about increasing your deductible. Look at dropping collision coverage if you have an older vehicle,” Power said.
“Ask about usage-based insurance, I call it Fitbit for your car, which essentially gives you a discount for good driving behaviour. All of these questions are good to ask and finding that right product and finding that right price to meet your needs.”
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering a motorist to pay almost $35,000 in damages after striking another motorist in the face.
In today’s case (Henderson v. McGregor) the parties were both operating motor vehicle moving in the same direction of travel. The Plaintiff was concerned that the Defendant was not paying adequate attention. The vehicles stopped close to each other and the Plaintiff exited his vehicle and approached the Defendant. The Defendant “struck him without warning, grabbing and scratching his face causing lacerations and bruising and drew blood.”.
The Court found the Defendant liable for the torts of assault and battery and ordered damages just shy of $35,ooo to be paid including $2,000 in aggravated damages. Mr. Justice Walker provided the following findings regarding liability:
 I accept that Mr. Henderson believes he was calm and non-threatening when he approached Ms. McGregor’s vehicle. I also find that Ms. McGregor was surprised to see Mr. Henderson walking toward her vehicle.
 That said, Ms. McGregor committed an unprovoked assault and battery on Mr. Henderson (I will refer to both collectively as an assault). She struck him without warning, grabbing and scratching his face causing lacerations and bruising and drew blood.
 Mr. Henderson conceded in submissions that with the benefit of hindsight he should not have approached Ms. McGregor’s vehicle. However, that does not provide Ms. McGregor with a defence.
 Her submission that she acted in self-defence is without merit. She has not met the onus to establish self-defence: Mann v. Balaban,  S.C.R. 74 at 87. She has not established that she perceived an imminent attack. Without provocation, Ms. McGregor hit and grabbed Mr. Henderson’s face, scratching his skin with such force to cause lacerations, bleeding, bruising, and swelling.
 Even if Ms. McGregor felt threatened and perceived an imminent attack, which I do not accept she did, in exercising her right of self-defence, she must use only such force as on reasonable grounds she believes is necessary for her defence. The nature of the injuries suffered is not necessarily indicative of whether the force was reasonable. The issue is informed by the facts and circumstances of each case, including the nature and seriousness of the threatened attack. Here, the force Ms. McGregor used was not reasonable in the circumstances: Buchy v. Villars, 2008 BCSC 385 at para. 112, aff’d 2009 BCCA 519; Provencher v. St. Paul’s Hospital, 2015 BCSC 916 at paras. 45-46.
Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, finding that an ICBC hired expert witness’ opinion was “of little to no assistance to the Court“.
In today’s case (Tench v. Van Bugnum) the Plaintiff was injured in two collisions that the Defendants admitted fault for. The Plaintiff presented evidence that the collisions resulted in chronic Thoracic Outlet Syndrome (“TOS”) resulting in significant impairment. The Defendant’s insurer, ICBC, hired a doctor who did not examine the Plaintiff and provided an opinion rejecting the diagnosis. In dismissing this opinion as being of ‘little to no assistance‘ Madam Justice Fleming provided the following reasons:
 In this case, the conflict in the expert evidence regarding the diagnosis of TOS is easily resolved based on the much superior expertise and experience of Drs. Salvian and Caillier in diagnosing and treating TOS. Further, the strength of Dr. Karim’s opinion is significantly undermined by the fact that he did not examine Ms. Tench. There is no suggestion here that her TOS symptoms are susceptible to proper assessment by objective measures alone. Drs. Salvian and Caillier’s evidence made clear that their examinations and clinical testing of Ms. Tench played an important role in their diagnoses of her TOS. In any event, Dr. Karim’s opinion ultimately is of little to no assistance to the court, because it offers no explanation, prediction or recommendations with respect to any of Ms. Tench’s ongoing and significant symptoms.
 Therefore, I accept the entirely consistent expert opinions of Drs. Salvian and Caillier, along with their examination findings. I also largely accept the opinions and findings of Ms. Black regarding Ms. Tench’s functional capacity prior to the second accident.
In assessing non-pecuniary damages at $120,ooo the Court made the below findings and provided these further reasons:
 Without limiting the factual findings that flow from this acceptance, my findings include:
1. The first accident caused injuries to the soft tissues of Ms. Tench’s neck, shoulder girdle and back as described by Dr. Caillier, resulting in acute and significant pain in those areas, as well as neurologic TOS, likely the result of ongoing spasm and tightness in the scalene muscles. Her condition involves significant sensory symptoms including numbness and tingling and some pain in her arms and hands. Her pain and TOS symptoms improved somewhat but were chronic by the time of the second accident.
2. The first accident also caused the emotional and psychological symptoms Ms. Tench has experienced since then. In other words, I reject the defendants’ assertion her psychological complaints are not causally linked to the accident and are perhaps attributable to other potential causes, namely a genetic predisposition. I note that in cross-examination Ms. Tench was asked to confirm that two particular family members suffer from anxiety or depression, which she did.
Regarding factual causation, Ms. Tench is required to prove on a balance of probabilities that the defendants’ negligence was not the sole or predominant cause, but a cause of her injuries and loss, applying the “but-for” test: Athey v. Leonati,  3 S.C.R. 458 at paras. 13–17. It is well-established and must be remembered that cause in fact is determined in a “robust common sense fashion”. Scientific proof is not required. Inferences drawn from proven facts may suffice: Clements v. Clements, 2012 SCC 32 at para. 9; and Athey at para. 16.
Applying the but-for test, the opinion evidence of Dr. Caillier and the fact evidence of Mr. Smith, Ms. Buhler and Ms. Tench amply establish that the emotional and psychological symptoms she has experienced after the first and second accidents were caused by them. The causal mechanisms likely included the impact of the accidents themselves, her ongoing pain and sensory symptoms and their consequences for her, including poor sleep.
3. Ms. Tench’s physical symptoms interfered with her ability to work at Rona, prevented her from continuing to work at Starbucks, and significantly affected how she carried out her ESL teaching and TA responsibilities. Her symptoms also undermined her participation in graduate school. Whether or not the grades she obtained were significantly lower than they would have been absent her injuries, it is clear her pain and TOS symptoms prevented her from focusing, concentrating, reading and typing for sustained periods, undermining her ability to keep up with preparation and course work.
4. For the most part, I accept Ms. Black’s opinion about Ms. Tench’s functional vocational and non-vocational capacity shortly before the second accident. Based the fact evidence, I find Ms. Tench could not have worked more than she was at that time or by the time of the trial. It is clear that working as much as she did left her with little energy for anything else including her marriage and her relationships with family and friends. In other words, she was essentially exhausting herself.
5. Accepting Ms. Tench’s TOS symptoms were somewhat, but not significantly better before the second accident, I also accept that she had learned to better manage all of her symptoms and was experiencing less emotional distress and preoccupation with her physical condition by then.
6. Based on the clinical findings of Dr. Salvian and Dr. Caillier, and the evidence of Ms. Tench and Mr. Smith regarding her pain and TOS symptoms since the second accident, I am satisfied it significantly aggravated both conditions and she has not been able to durably perform anything other than light housekeeping, working as much as she has been. Although antidepressant medication has lessened her anxiety and allowed her to feel more calm, she is easily overwhelmed and her outlook is quite pessimistic. Her psychological and emotional symptoms include not just low mood but also reactivity.
7. Given the aggravation of her chronic pain condition and chronic TOS caused by the second accident, and accepting Ms. Tench was struggling to manage the demands of working part-time at three ESL positions while completing three prerequisite courses at the time of the trial, I find that her functional capacity deteriorated after the second accident.
8. Botox injections provide temporary relief from some of her neck and TOS symptoms but limited improvement in function. Although she is better able to carry light objects without the same fear of dropping them, she must still avoid aggravating her condition by engaging in the problematic activities and postures identified by Dr. Salvian, Dr. Caillier and Ms. Black.
9. Ms. Tench’s prognosis is poor. Her chronic myofascial pain syndrome and chronic TOS are likely permanent. Accepting it is probable she will improve to where she was before the second accident, this outcome would still leave her with significant ongoing pain in her neck and shoulders, that will fluctuate in intensity based on her activities, and intermittent but significant symptoms of numbness and tingling in her arms and hands, along with some pain. She also faces an increased risk her conditions will worsen, and is vulnerable in particular to an aggravation of her TOS caused by further injury to her neck or even ongoing scalene spasm as explained by Dr. Salvian. I also accept however that implementing many of the recommendations of Dr. Salvian, Dr. Caillier and Ms. Black, and working less than full-time will allow Ms. Tench to better manage her conditions.
 Once a thriving, dynamic, energetic young woman with very bright future, Ms. Tench has been left struggling to manage chronic, significant pain and TOS symptoms that have cast a shadow over all aspects of her life. Since the accidents she has worked and studied in significant pain, discomfort and distress. Coping with her physical symptoms and the demands of work and school have left her with little energy for anything else.
 Accepting her condition played some role in her decision not to pursue a PhD, she lost the chance to fulfill her dream of a richly intellectual work life.
 Her relationship with Mr. Smith has been deeply affected. Even physical affection causes her difficulty. She fears being unable to care for the children they hope to have in the future. No longer able to contribute much at home, Ms. Tench has lost the sense of fulfillment she derived from cooking, baking, decorating and entertaining, and maintaining her own fastidious standards. She is also unable to participate meaningfully in almost all of her other previous hobbies and activities. Close to her family, extremely social and very active in her church before the accidents, Ms. Tench is now quite isolated.
 Sadly, her pain and TOS conditions are permanent. Although Botox injections offers serial temporary relief of some of her symptoms, they are not a cure. The prospect of some improvement although probable is less than certain. She could improve to the point she reached prior to the second accident, but she also faces the risk of worsening symptoms. Better management of pain is the most realistic scenario.
Despite the efforts of insurers to exclude coverage in habitational insurance policies for losses caused by cannabis cultivation or production, a recent Alberta case serves as a reminder that coverage may, nevertheless, apply where an insured’s tenant’s grow-op causes a loss. This is due to the existence of so-called “innocent insured” provisions in the Insurance Acts of Alberta, British Columbia and Manitoba.
Home insurance policies have traditionally excluded coverage for losses caused by illegal activities. Many have also specifically excluded coverage for losses arising from illegal drug activity. With the Cannabis Act having come into force on October 17, 2018, Canadians may now legally cultivate up to four cannabis plants at a time in their dwelling-house. As such, some insurers have amended their policies to exclude losses caused by growing cannabis, regardless of its legality.
However, insurers in Alberta, British Columbia and Manitoba may still be at risk of cannabis-caused losses even with broad exclusions on the growing or production of cannabis in a dwelling.
The innocent insured provisions
The innocent insured provisions protect insureds who are not responsible for or complicit in intentional acts that cause damage. Specifically, exclusions barring coverage for losses caused by a criminal or intentional act or omission are of no effect vis- à-vis an insured person who does not:
Cause the loss;
Abet or collude in causing the loss; and
Consent to the act or omission while knowing—or having ought to have known—that the act or omission would cause the loss.
The innocent insured provisions of the three provinces are all identical. British Columbia, Alberta and Manitoba brought their provisions into force in 2011, 2012 and 2014, respectively. Their enactment was a response to the Supreme Court of Canada’s (SCC) decision in Scott v. Wawanesa Mutual Insurance Co. [Scott]. In Scott, the majority of the SCC held that, upon the insured plaintiff’s son intentionally setting fire to the plaintiff’s house, coverage was not available to the plaintiff, as the policy excluded coverage for loss caused by a criminal or wilful act of the insured.
While the innocent insured provisions have received relatively little judicial consideration, the recent 2019 Alberta case of Lafferty v. Co-Operators General Insurance Co. [Lafferty] should serve as a reminder that an insurer in Alberta, British Columbia or Manitoba could be on the hook for damage caused by a tenant’s grow-up, notwithstanding a cannabis exclusion.
In Lafferty, the insured plaintiffs owned a house in which their tenants were growing cannabis. The insureds had no knowledge of this. The grow-op caused damage to the house. After the insurer denied coverage based on an illegal drug operations exclusion, the insured sued for coverage. Ultimately, the Court held the innocent insured provision to be unavailable to these insureds, as the loss occurred in 2010, while the provision came into force in Alberta on July 1, 2012.
Nevertheless, the Court in Lafferty commented that the innocent insured provision could have prevented the insurer from relying on the drug operations exclusion had the loss occurred after the provision came into force.
One may contrast the Court’s comments in Lafferty with a recent decision out of Saskatchewan, a province that does not have an innocent insured provision in its provincial Insurance Act. In the 2018 case of Carteri v. Saskatchewan Mutual Insurance Co., the Court dismissed the insured plaintiffs’ claim for coverage after an explosion and fire severely damage their rental property. The explosion and fire evidently resulted from the tenants’ attempt to produce cannabis resin. The insurance policy contained an exclusion denying coverage for loss caused by the manufacturing of illicit drugs. The exclusion functioned to bar coverage, even though the insured property owners were arguably “innocent of any wrongdoing.”
Rental properties are at a much higher risk
The innocent insured provisions afford protection to property owners when a tenant’s act or omission causes a loss, provided the insured is a natural person (as opposed to a corporation), and does not consent to or collude in such activity. This may prove problematic for insurers writing habitational policies in Alberta, British Columbia and Manitoba.
As rental properties already represent a higher risk exposure, insurers will want to underwrite such policies carefully, especially considering the increased likelihood of tenants seeking to grow marijuana plants in their dwellings legally, regardless of whether the property owner forbids it. Given that cannabis exclusions may not protect insurers in this situation, it is even more prudent that insurers require their insureds to conduct regular, periodic inspections of rental dwellings, in an effort to sniff out any cannabis production before it causes a loss.
For more information, please contact Robert Gilroy or another member of Dentons’ Insurance group.
 See Lafferty v Co-Operators General Insurance Co., 2019 ABQB 515, discussed below.