Owner of deliberately burned Manitoba store ordered to repay

WINNIPEG _ A judge has ruled a fire that destroyed a hardware store in the western Manitoba town of Neepawa more than four years ago was deliberately set.

The decision follows a lawsuit filed by the owner of the Home Hardware outlet against his insurance company for not providing coverage.

The owner, Patrick Guilbert of Guilbert Enterprises, has been ordered to repay Economical Insurance tens of thousands of dollars.

The judge’s ruling states that the insurer based in Waterloo, Ont., denied a claim for $3 million.

Manitoba’s Office of the Fire Commissioner said the February 2015 blaze started in the attic, but it could not determine the exact cause.

The ruling has no effect on a separate police investigation, now closed, in which the RCMP did not lay charges.

The fire destroyed four apartments above the store but no one was injured.

Court of Queen’s Bench Justice David Kroft wrote in his March 21 ruling that “Taking all the evidence into account … Economical has proved, on a balance of probabilities, Guilbert started the fire _ a clear breach of the plaintiff’s contractual and statutory obligations to Economical.”

Kroft accepted evidence given by engineer Norbert Karl Becker, who was called by Economical to testify about the cause and origin of the fire. The judge noted that Becker found that the timing, area of origin and rapid spread of the fire were consistent with an incendiary blaze.

Kroft said Guilbert conceded financial motive at trial because the business was failing.

He also ruled there was opportunity for Guilbert to start the fire, based on witness testimony from former employees.

“On the day of the fire, Guilbert removed personal items from the building. Guilbert was alone in the building from 6:05 p.m. to 6:09 p.m.,” he wrote.

Kroft allowed a counterclaim filed by Economical and ordered Guilbert to pay the insurance company nearly $650,000. The money covers the amount Economical paid under the policy to two credit unions for mortgages taken out by Guilbert Enterprises and the cleanup costs associated with the fire.

His decision notes a trial judge is not precluded from reaching a different conclusion than investigators about the cause of a fire.

Guilbert has not responded to a CTV News request for comment, while his lawyer said it would be inappropriate to comment on the ruling. (CTV Winnipeg)

$175,000 Non-Pecuniary Assessment for Chronic Psychological Injuries

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic psychological injuries sustained in a collision.

In the recent case (Anssari v. Alborzpour) the Plaintiff was injured in a 2014 collision.  She sustained various psychological injuries including severe depression, anxiety, and post-traumatic stress symptoms.  These continued to the time of trial and were likely to continue in the future.  In assessing non-pecuniary damages at $175,000 Madam Justice Fleming provided the following reasons:

[95]         In any event, the fact and opinion evidence overwhelmingly establishes that Mrs. Anssari developed severe depression, severe anxiety and symptoms of PTSD due to the accident. It is clear her psychological injuries have resulted in the ongoing and severe symptoms she, her children and most of the expert witnesses described in their evidence. I find therefore the accident caused the following:

–       very low mood and intense feelings of anxiety worsened or triggered by a number of circumstances such as driving, noise, and sirens;

–       nightmares for about one year after the accident;

–       very low energy and very poor motivation;

–       agitation, irritation and anger, as well as intense sadness and emotional numbness;

–       a profound sense of hopelessness and if not a wish to die, a questioning of her ongoing existence;

–       irrational anger toward Mr. Alborzpour for causing the accident that she wants to let go of but cannot;

–       overwhelming feelings of guilt over the impact of her condition on her family;

–       chronic insomnia that prevents her from falling asleep until near dawn and staying asleep for more than a series a short periods ending in the late morning;

–       significant physical pain in her neck shoulders and back, severe headaches and numbness along with other altered sensations in her right arm for approximately two years after the accident; and

–       some ongoing pain in her neck, shoulders and back, headaches and intermittent numbness in her right arm.

[96]         Mrs. Anssari’s severe psychological symptoms have persisted despite treatment including anti-depressant medications, psychological treatment in 2014 and 2017, medication and treatment for her physical symptoms, ongoing support from her family doctor, and some involvement with a treating psychiatrist since early 2018….

[108]     The evidence makes it clear that Mrs. Anssari’s psychological injuries have had a devastating impact on every aspect of her life. Before the accident she was a vibrant, happy, healthy person with a loving marriage and extremely close, positive relationships with both children. A full-time homemaker and a highly involved parent, Mrs. Anssari also enjoyed socializing with friends, going out and travelling with her husband and children, and being physically active. She dreamed of being a grandmother and caring for her grandchildren. Her future was bright.

[109]     Since the accident, her emotional suffering, intense anxiety, and severely disrupted sleep, along with an almost complete loss of motivation, next to no energy and a deep sense of hopelessness have essentially taken all of that away. For the first year she was also plagued by nightmares of the accident. She still experiences flashbacks. I have accepted her psychological injuries exacerbated her physical pain which, although much better, has not resolved.

[110]     For the most part Mrs. Anssari spends her days and nights on the living room couch, interacting very little with the world around her, including her family. Her inability to take part in or find any joy in Sahar’s wedding preparations and the wedding itself would have been unimaginable before the accident. The same is true of her response to Rosha. Rather than fulfilling her dream of being an involved grandmother and caring for her grandchildren, she engages very little with Rosha during their almost daily weekday visits which in turn causes her more suffering. Similarly, Mrs. Anssari remains unable to let go of the anger she has felt toward Mr. Alborzpour since the accident. In response, as Mrs. Anssari put it, he has lost patience with her. The evidence of Saeed and Sahar suggests the marriage is beyond repair, a terrible loss for Mrs. Anssari given its strength before the accident and how firmly rooted her identity has been in her role as a wife and mother.

[111]     The effect of Mrs. Anssari’s injuries on her day-to-day functioning is as profound as the impairment of her relationships. I have accepted that her psychological injuries prevent her from engaging in any meaningful housework or cooking. They also significantly interfere with her ability to drive safely, a blow to her independence. She even struggles to engage in basic self-care.

[112]     Unhappy with what has become of her, Mrs. Anssari is, as I have said, guilt ridden about the effect of her condition on her family. Fortunately she wants to get better and is willing to undergo further treatment, despite the ineffectiveness of medication and psychological interventions thus far. Although a complete recovery is not a realistic possibility, a new medication regime and, failing that, ECT may very well result in substantial improvement over time.

[113]      Similar cases are of some assistance in assessing an award for non-pecuniary damages. No other case however will ever involve the exact same circumstances and each plaintiff is unique: Hans v. Volvo Truck North America Inc., 2016 BCSC 1155, at para. 525. I have considered the cases relied upon by the parties. The most similar is Hans where $265,000 was awarded in non-pecuniary damages seven years after the accident. The plaintiff’s psychological injuries, significant PTSD and major depressive disorder, were however even more serious than Mrs. Anssari’s and there was little prospect his symptoms would improve. He suffered from suicidal ideation, had attempted suicide three times, and been hospitalized for extended periods. The trial judge accepted the plaintiff would remain at risk of death by suicide. Given his PTSD, the plaintiff was also found to be at increased risk of developing another psychiatric disorder.

[114]     In all of the circumstances and having considered the factors enumerated in Stapley, I conclude $175,000 is an appropriate award for Mrs. Anssari’s pain and suffering. The award includes compensation for the non-pecuniary loss associated with her intended role as a caregiver to her grandchildren and her future loss of housekeeping capacity, both of which are discussed below but also takes into account the chance that with the medication regime or failing that ECT, her psychological condition will improve substantially, balanced against the risk of further deterioration.

Legally growing pot in Canada could void your home insurance

Digital Journal | Excerpted article was written By KAREN GRAHAM

Vancouver – A recent court ruling in British Columbia, Canada that focused on the “material change” clause in homeowners insurance policies could have the potential to shed a spotlight on the incompatibility of such a position with new federal cannabis laws.

According to the Globe and Mail, The decision of Vancouver Supreme Court Justice Margot Fleming in February 2019 could very well have far-reaching effects for all homeowners in Canada who grow even a single marijuana plant inside their home.

Justice Fleming ruled in favor of Wawanesa Mutual Insurance Company after hearing evidence from the insurance company’s underwriting expert, Liz Strocel, retained by Wawanesa, on the risks of growing cannabis. Based on her testimony, a cannabis grow operation on a homeowner’s property constitutes a “material change” sufficient enough to void the insurance policy.

Strocel testified the company “did not and does not insure any property with a marijuana grow operation, whether or not it is legal, because of the inherent risk. She identified the risk as including drywall being susceptible to mold from the humidity, fire (for a number of reasons), the risk of robbery or a break in, and additional liability issues. She also testified that Wawanesa would void a homeowner policy if it learned the insured had a grow operation and refund the premiums.”

Surprisingly, the underwriting expert also testified that she was “not aware of any general insurer in Canada that would take on the risk of any cannabis grow operation, or even the presence of a single marijuana plant.” This one line of testimony was emphasized in the judge’s ruling.

The Schellenberg case

The Schellenbergs had a fire in an outbuilding on their property in Chilliwack, British Columbia in 2014. The outbuilding was constructed in 2012, with Mr. Schellenberg notifying the insurance company he wanted the building added to his homeowner’s policy. He apparently failed to mention he also had a legal cannabis grow license and the building in question housed the operation.

The failure of the Schellenbergs to tell their insurance company the building contained 310 marijuana plants was used by Wawanesa to void the homeowner’s policy. Wawanesa claimed that the marijuana grow constituted a “material change”—a change to the property that would have led to either higher premiums or denial of coverage if it had been reported.

The insurance company’s decision to void the insurance policy led to the Schellenberg’s suing the company, claiming it did not have grounds to void the policy. With the court ruling in favor of the insurance company, it remains to be seen if we may hear of more court cases involving homeowner insurance claims.

It might be a good idea if homeowners growing marijuana on their property, even just one plant, check with their insurance companies – just to be sure of their coverage.

Canada’s Changing Climate Report Confirms Increase in Extreme Rainfall

OTTAWAApril 2, 2019 /CNW/ – Today, the Government of Canada released Canada’s Changing Climate Report. This first report, part of the government’s Canada in a Changing Climate: Advancing our Knowledge for Action, provides a firm scientific foundation for future analyses and is a valuable tool for governments who are looking for ways to adapt and make their communities more resilient.

The report concludes that Canada is seeing the effects of widespread warming and projects that they will intensify in the future. Annual precipitation is projected to increase in all regions of Canada[1] and a warmer climate is expected to intensify some weather extremes. Projected increases in extreme precipitation are expected to increase the potential for future urban flooding.

The report says Canadians can expect extreme hot temperatures to become more frequent and more intense. This will increase the severity of heatwaves and contribute to increased drought and wildfire risks. While inland flooding results from multiple factors, more intense rainfalls will increase urban flood risks. Under the high emission scenario explored in this report, a current 1-in-20-year extreme rainfall event will become a 1-in-10-year event by mid-century (a two-fold increase in frequency).

The report clearly points to the need to adapt now to make our communities more resilient.

“The property and casualty insurance industry continues to see the devastating effects of this new era of an unpredictable, changing climate,” said Don Forgeron, President and CEO, IBC.

“Last year, insured damage from severe weather across Canada reached $2 billion, the fourth-highest amount of losses on record,” continued Forgeron. “However, unlike the 1998 Quebec ice storm, the 2013 Calgary floods or the 2016 Fort McMurray wildfire, no single event caused the high amount paid out for losses in 2018. Instead, Canadians and their insurers experienced significant losses from a host of smaller severe weather events from coast to coast.”

IBC has encouraged all levels of government to increase their investments in mitigating the impact of extreme weather and building resiliency to its damaging effects. In addition to advocating for upgraded infrastructure to protect communities from floods, IBC is also advocating for improved building codes, better land-use planning, and incentives to shift the development of homes and businesses away from areas that are at highest risk of flooding.

The storm that hit Ontario on February 24 and 25, 2019, with damaging wind gusts, freezing rain and blizzard conditions caused over $48 million in insured damage. This is just the first severe weather storm to hit Ontario in 2019. In 2018, insured losses from severe weather reached $1.3 billion in that province.

It is not only insurers that foot the bill for severe weather damage. For every dollar that insurers pay out for home and business insurance claims, IBC estimates that governments pays out $3 to recover the public infrastructure that is damaged by severe weather.

Follow us on Twitter @InsuranceBureau or like us on Facebook. If you have a question about home, auto or business insurance, contact IBC’s Consumer Information Centre at 1-844-2ask-IBC.

Protect Your Insured From Being Added To Litigation

Article by Ian S. Epstein

When an opposing party brings a motion to add an insured to existing litigation, the courts usually allows the party to be added, unless there are clear reasons not to do so, such as an expired limitation period. Consent is usually provided, as the threshold to add a party is low. Yet, recent developments show that a court may look deeper and assess the strength of the claim and evidence in support, to determine whether the addition of a party is improper, from the outset.

In Tacoma Engineers Inc. ats TNS Landco Inc. 2019 ONSC 1296, we successfully opposed a motion for Tacoma, a structural engineer, to be added as a Third Party on the basis that there was no merit to the claim against it, and that the claim was statute-barred.

The matter arose out of a failed septic system on a commercial property, which failed partly due to improper coordination of consultants. Without their knowledge or consent, Tacoma was listed as the consultant responsible for coordination, on a contract between the Claimant owner and the Design-Builder. In fact, as the structural engineer on the project, Tacoma was never responsible for coordinating others.

Instead of simply adding Tacoma, and requiring it to subsequently bring a summary judgment motion to strike the action against it, the court considered the evidence to ascertain Tacoma’s involvement. Justice Fowler Byrne dismissed the motion on the basis of the missed limitation period, and the fact that there was no basis to the claim.

The court noted that Tacoma’s invoices all dealt with structural issues, and not coordination. She also found that at no time did the Claimant notify Tacoma about a septic issue, nor ask for their assistance to fix things. The court also drew an adverse inference from the fact that the Claimant did not even mention Tacoma when they retained an expert to opine on the cause of the septic issues.

The key take-away is that while the threshold may be low to add a party, there is a threshold. The court can assess the evidence to determine whether a party is improper or a limitation period is expired, and make a determination to not add them at a very early stage. 

The case has important implications for insurers. Before simply consenting to a motion to add an insured to litigation, take a look at the facts. Is there clear evidence that the insured is an improper party? Is there clear evidence that the limitation period has expired? If so, it may be worth opposing the motion. If successful, it will prevent the insured from being added to the litigation, saving significant costs. If it is not successful, it may help to set up the evidentiary record needed to bring a summary judgment motion at a later stage.

Insurers should give careful consideration as to whether to consent or oppose a motion for an insured to be added as a party to existing litigation. Doing so may help reduce legal costs, and assist in potentially getting an insured out of litigation at an early stage. 

Ian Epstein has a general insurance practice covering a wide array of insurance issues including E&O, general liability and product liability claims as well as coverage assessments. He has been recognized by Lexpert® Canadian Legal Directory as a leading practitioner consistently recommended in Professional Liability matters and ranked by Best Lawyers® in Canada for his expertise as a practitioner in insurance law.

Lauren Rakowski’s insurance practice focuses on professional liability, tort, and commercial litigation. She has experience representing lawyers, engineers, individuals, corporations and financial advisors.

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

Lawyers file court challenge over ICBC’s new limits on auto insurance payouts

By Justine Hunter | The Globe and Mail

A group representing B.C.’s trial lawyers is asking the courts to overturn new limits on automobile insurance payouts that they say discriminate against people with disabilities.

Effective Monday, the provincial government imposed new rules to curb skyrocketing payments for minor-injury claims by capping settlements for pain and suffering at $5,500 and limiting when accident victims can sue.

The province is the last in Canada to abandon a system in which victims could sue for any type of injury − known as a full tort system.

But the Trial Lawyers Association of British Columbia filed a constitutional challenge on Monday. They say the challenge is to protect the Charter rights of British Columbians because the right to sue is a basic human right.

Rather than waiting for an individual complainant to challenge the law, the case is filed on behalf of “Jane Doe,” an individual whose identity is not yet known who suffers a “minor injury” as a result of an accident and has to follow the new rules.

Attorney-General David Eby said he is confident the amendments will stand up in court. “We believe the amendments we have made are not just constitutional, but good public policy,” he said in an interview.

Basic auto insurance in the province is only available through the Crown-owned Insurance Corp. of B.C., which is on track to post its second $1-billion deficit in a row. Without the caps, he said, insurance rates would have had to climb significantly this year.

Mr. Eby said the changes are expected to restore ICBC’s fiscal health, even after the province has boosted support for those needing medical services after an accident.

“We need to stop the bleeding at ICBC and this is a $1-billion reform that will actually increase benefits for British Columbians,” he said.

The diagnosis of injuries are made by a doctor and ICBC will then assess whether the injury falls under new definitions for a minor injury.

British Columbians with motor-vehicle-accident claims totalling $50,000 or less will have to resolve them through an online dispute resolution tribunal, without the opportunity to go to court.

Shelley Howard, executive director of the non-profit Campbell River Head Injury Support Society, said she is concerned that some accident victims may be caught under the new cap before they realize the extent of their injuries.

“The medical world doesn’t always recognize brain injuries right off the bat. It’s a complex injury,” she said. “I don’t know how the system will be able to go back and rectify the situation.”

The advocacy group wants assurances that people who suffer head injuries won’t fall through the cracks if their injuries are not promptly diagnosed.

Under ICBC’s rules, individuals have two years to settle their claims. Injuries can be switched from the minor classification to the non-minor category if new symptoms emerge in that time and if the file is still open. However, once an individual settles their claim, there is no opportunity to reopen their case.

“People who have a concussion will likely receive legal advice to not settle until that time period is over and it is clear the extent of the injury,” Mr. Eby said.

The trial lawyers association consulted with former NDP premier and attorney-general Ujjal Dosanjh on the case.

In an interview, Mr. Dosanjh said the government is violating the intent of the ICBC system when it was created in the 1970s.

“What you have now is the NDP government of British Columbia saying, ‘we will continue public auto insurance but we will increase rates and diminish your rights,’” he said.

“Taking away tort isn’t modernization, it’s going to medieval times without the right to go to court.”

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