Thousands of cars will be damaged by Florence’s floods

By Tom Krisher


As flooding continues in the Carolinas after Hurricane Florence’s massive rainfall, experts say high water will damage thousands of vehicles.

But auto industry analysts say the number of soggy vehicles will be far less than the roughly 700,000 damaged by Hurricanes Harvey and Irma in Texas and Florida last year, largely because there are fewer people and cars along the Carolina coast.

Also, Florence followed the expected path, making evacuations more successful and keeping more vehicles out of harm’s way. Still, Florence is being blamed for at least 37 deaths in three states.

Kelley Blue Book Chief Economist Jonathan Smoke estimates that 20,000 to 40,000 vehicles will be total losses due to Florence, while Anil Goyal, executive vice-president of operations at Black Book, which tracks used sales and values, predicts 20,000 damaged or destroyed, maybe less. Both are waiting to make final estimates as swollen rivers crest Wednesday and Thursday.

State Farm, one of the largest U.S. auto insurers, said it had 1,630 auto-related claims from the Carolinas as of Wednesday. That certainly will rise as flood waters recede and people return to their homes.

Smoke and Goyal say the storm damage will drive up used vehicle prices at least on the East Coast as people replace damaged cars.

“We already have strong demand for used vehicles, particularly for used sedans,” Goyal said.

Here are answers to questions about what will happen to damaged vehicles and how to handle your car in the aftermath of the storm.


A: No, in almost all cases. If the car was only in a few inches of water that didn’t rise past the bottom of the body, then maybe. Water higher than that can get into wires, transmission parts, the exhaust or other places. Deeper water could enter the cylinders that surround the pistons. Trying to start the car could bend parts that connect the pistons to the rest of the drive train, experts say. Oil, gasoline, antifreeze, brake fluid and other liquids could have water in them that could cause damage if not replaced. Experts recommend towing a car to a mechanic for inspection.


A: Probably not. Water could have damaged sensors, electrical connectors, computer chips and wiring that are under the carpet, behind the dashboard or in the engine compartment. That could disable lights, air bags, ignition, sensors or other essential systems. Corrosion can form beneath wiring insulation. Damage may not surface for years.


A: Depends on your coverage. If you’re financing or leasing, your lender likely requires comprehensive insurance, which typically covers flood damage. But if you own a car outright, or it’s old and would be more expensive to repair than it’s worth, you may choose not to get comprehensive coverage. As of 2013, 78 per cent of U.S. insured drivers had comprehensive coverage, according to theInsurance Information Institute.


A: Once an owner files a claim, the insurer will evaluate the damage. Many states have guidelines for a vehicle to be considered a total loss, including the extent and type of damage and the cost of repair. If the insurer determines the vehicle is a total loss, it will pay the owner _ minus a deductible that’s typically $500 to $1,000 _ and take the vehicle and the title.


A: Insurers will turn the cars over to auctions or salvage yards. Undamaged parts will be salvaged and many vehicles will be scrapped. Some will go to salvage auctions, says Black Book’s Goyal. Everything that’s ruled a total loss by an insurance company should get a salvage title. But consumers should be careful. A vehicle considered a total loss in one state might not require a salvage title in another state, experts say.


A: Flooded cars could be shipped to other parts of the country or even other nations. To find out where the car came from and if it has a salvage title, experts suggest keying the vehicle identification number into services that search car histories for a charge, such as Autocheck or Carfaxe. The National Insurance Crime Bureau and Carfax offer free flooded car checks. Buyers can ask to take the car to a mechanic for inspection. They also can also look for signs of flooding, including musty or mouldyodours or overpowering use of air freshener, discolored carpet or new carpet in an old car, water lines in the engine compartment or trunk, fogging inside headlights or taillights, rust or flaking metal under the car, and dirt buildup in unusual areas such as around seat tracks. If you see any signs, don’t buy the car, experts say.

Plaintiff Ordered to Pay Double Costs After Jury Dismisses Injury Claim

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Plaintiff to pay double costs to a Defendant after a jury dismissed her injury claim.

In the recent case (Brar v. Ismail) the Plaintiff alleged injury following a collision and sued for damages.   Prior to trial the Defendants offered to settle for $50,000.  A further offer of $65,000 was tabled.  Neither side compromised and the Plaintiff proceeded to trial where damages of over $500,000 were sought.  The Defendants attacked the Plaintiff’s credibility and introduced surveillance evidence which the court called “compelling”.

The Jury ultimately dismissed the claim.  In ordering that the Defendants were entitled to pre offer costs and post offer double costs Mr. Justice Myers provided the following reasons:

[23]     The issue of whether an offer to settle ought reasonably to have been accepted is determined by the factors existing at the time of the offer and not with the hindsight of a judgment or jury verdict.

[24]     The main point this question hinges on is whether the credibility issues were obvious and significant enough to the plaintiff so that she ought to have accepted one of the offers.

[25]     From at least the time the video surveillance was delivered, it was obvious that the plaintiff’s credibility would be front and center.  There were inconsistencies between what it showed and what she relayed to her experts.  It was also obvious these inconsistencies would have a significant impact on her case.  I do not agree with the plaintiff that what was seen in the video was not far off what she had had told her experts or said in evidence.  Often video surveillance is not compelling; here it was.

[26]     Moreover, as argued by the defendants, the plaintiff also had further credibility difficulties that ought to have been apparent to her counsel:

·        The plaintiff’s evidence was that she hit her head in the accident and had immediate dizziness and nausea including vomiting at the accident scene; however, these complaints were not documented in her GP’s records during her initial visit, which was only hours after the accident.  Her GP testified that he would have made a note of these complaints if they were made to him.

·        The plaintiff’s evidence that she was disoriented and vomited at the accident scene was contradicted by Mr. Ismail’s evidence and that of his brother;

·        In her discovery, the plaintiff said she had not done any form of work, whether paid or voluntary.  She had also stated during her examination for discovery that she never helped her husband in his business (even though she was president and 100% shareholder).  However, at the trial she acknowledged she had in fact done work for her husband’s business since the accident.  Further the surveillance video showed the plaintiff working at an elections voting station.

·        At examination for discovery the plaintiff stated she did not have any other sources of income other than what she received from her employer, Swissport.  She also said she did not own any other properties other than her primary residence.  However, her income tax records showed significant amounts of rental income, and she later admitted at trial that she and her husband received rental income from a property she was on title for.  Her reported rental income was more than she had ever earned from Swissport before the accident.

[37]     I said I would return to the timing of the second offer  There was nothing to prevent the defendants from providing the surveillance far sooner, given its importance; as noted above, it was completed in January 2018.  The fact that it was disclosed in compliance with the rules does not mean that its timing cannot be a consideration with respect to the discretion to award double costs.  As well the $65,000 offer, which was not delivered until five days before trial, could have been delivered sooner.  This would have given the plaintiff more time to consider her position, without prejudicing the defendants.  Therefore, in my view, the defendants should receive ordinary costs up to and including the first five days of trial and double costs after that.

Canada: Ontario Court Of Appeal Certifies Class Action Against Sun Life

Article by Jeffrey S. Leon, Preet K. Bell and Jason M. Berall

On September 5, 2018, the Ontario Court of Appeal released its decision in Fehr v. Sun Life Assurance Company of Canada,1  overturning certain parts of the motion judge’s decision and certifying a class action against Sun Life brought by life insurance policyholders.  The Court of Appeal applied a “consumer-focused approach” that places emphasis on the viewpoint of insurance policy consumers.


The action involved “universal life” insurance policies that, in addition to providing life insurance, also serve as an investment vehicle.  The Court noted that many of these policies were sold when interest rates were high; therefore, premiums were relatively low and returns were favourable.  When interest rates fell in the mid-1990s and thereafter, premiums increased and returns decreased.

The plaintiffs brought a proposed class action against the insurer.  Justice Perell, the motion judge, declined to certify the action and granted the defendant’s summary judgment motion dismissing the action on the basis that the claims were limitations-barred.2 When the case reached the Court of Appeal, there were a number of appeals and cross-appeals.  However, the following three claims were central to the appeal:

  1. The plaintiffs alleged that sales agents made numerous misrepresentations regarding the policies, including that they would provide guaranteed interest and become self-sustaining.
  2. The plaintiffs alleged that the insurer breached the insurance policies by increasing the cost of insurance based on criteria not identified in the insurance policies.
  3. The plaintiffs sought a declaration interpreting the “maximum premium” provision in the policies.

In addition, as the defendant had argued that the claims were limitations-barred, there were issues relating to whether there was concealment of the claims (in other words, when the claims were discoverable).

The Court’s focus at this stage of the proposed class proceeding is whether the claims should be certified to proceed as a class action.  The actual merits of the claims will be determined at a future date, should certification be granted and the action proceed.

The Court of Appeal’s Decision

Misrepresentation Claim

The Court of Appeal upheld the motion judge’s decision that the misrepresentation claim was not suitable for certification on the basis that various misrepresentations were alleged that were personal to each policyholder; the experiences of the representative plaintiffs were idiosyncratic rather than common.  As noted by the motion judge, “[t]he alleged misrepresentations were made over the breadth of the class period, 13 years, by thousands of different sales agents who were not uniformly trained about four different policies some of which had revised standard forms over the course of their offering to the public.”3

Breach of the Insurance Policies

In considering class certification of the breach of contract claim, the Court of Appeal began its analysis by describing the policies as “complex contracts” in which “the language is technical and legalistic”, “important terms are undefined” and “key provisions…are opaque”.

The Court also critiqued various aspects of the motion judge’s decision on this issue. For example, the insurer had delivered evidence of industry practice which was considered by the motion judge.  The Court of Appeal held that the motion judge should not have considered this evidence at the preliminary certification stage because it was not clear that a “policyholder can be said to contract with reference to a custom of an industry in which he or she is simply a consumer.”

The motion judge had found that there was no basis in fact for the allegation that the insurer breached the contracts.  The Court of Appeal found that the motion judge erred by assessing whether the insurer actually breached the contract, rather than by simply determining whether there was some basis in fact for the common issue, which is the relevant consideration for certification.  The Court stated that the underlying issue of whether the contract was breached should be decided at the common issues trial – not the certification motion.

Therefore, the Court of Appeal found that this issue should be certified and proceed as a class action.  The Court also certified related common issues, including a question regarding corporate predecessor liability.

Declaratory Relief

One proposed common issue asked whether the “maximum premium” identified in the policies was the highest premium the policyholder would be required to pay.  The term was not defined in the policies.  The motion judge declined to certify this common issue because no class member had yet been charged a premium greater than the “maximum premium”.  As such, this issue was seen as premature.

The Court of Appeal reversed the motion judge’s decision, finding that this was a “case in which a declaration would be appropriate, to define the rights of the contracting parties so they can govern themselves accordingly and avoid future disputes.”

Limitation Period

The motion judge found that the misrepresentation and breach of contract claims were limitations-barred.  The Court of Appeal reversed that finding.  The key question for the limitations issue is when a plaintiff knew, or ought to have known, that her or she had a claim.  The Court held that in determining when a consumer ought to have discovered a claim, an individualized analysis was required in light of, among other things, the “relationship of vulnerability between insurer and insured”.  Therefore, the claims were allowed to proceed, but the insurer was permitted to raise limitations defences on a complete record when the merits of the claims are adjudicated in the future.

Source: Mondaq

Feds settle lawsuit with moms denied extra EI benefits for sick leave

By Jordan Press


OTTAWA _ It was seven years ago this week that the federal government told new mom Jennifer McCrea she couldn’t access sickness benefits while on maternity leave.

On Tuesday, the government publicly said it made the wrong decision and is agreeing to pay an estimated $11 million to about 2,000 women who, like McCrea, were blocked from accessing 15 extra weeks of employment insurance payments on top of a year’s worth of maternity benefits _ despite the rules saying they could.

McCrea, the woman at the centre of the case, said the settlement had left her in tears most of the day with the burden of the case now lifted from her shoulders.

“There were a lot of people that this happened to and we wanted to make sure it didn’t happen to anybody else in the future and that we needed to help them,” McCrea said in a telephone interview from her home in Calgary.

“Absolutely we’ve been successful in doing that. Whether that took seven years or 17 years, that was originally what it had to be and it wasn’t just about me…. It was about helping others.”

McCrea was diagnosed with breast cancer in July 2011, while she was on maternity leave with her youngest son, Logan, who was eight months old at the time.

She had a double mastectomy in August 2011 and was deemed cancer-free shortly afterwards, but was denied sickness benefits, despite a 2002 law that allowed new parents to access the additional weeks of EI payments.

McCrea took the government to court in 2012 alleging thousands of others were also denied benefits between 2002 and 2013, when the Tories clarified the law for all future claims.

The problem was that prior to 2013, the government wouldn’t let new mothers and fathers switch from parental to sickness benefits until they could show they were otherwise available for work.

During the 2015 federal election the Liberals vowed to put an end to the legal dispute if they were elected only to rack up a legal bill of more than $2.5 million fighting the women in court after they formed government.

Federal lawyers gave the first hints earlier this year that the Liberals were ready to settle the case. Months of negotiations and paperwork followed before documents were officially submitted in August.

The settlement is conditional on Federal Court approval that is expected to happen in early December and payments should begin flowing to eligible women by next spring.

“I’m happy about it. It’s just a tremendous relief,” McCrea said.

In a statement, the government said it “recognizes the challenges faced by Canadians who cannot work because of illness, injury and other family challenges” and reached a settlement in the case to “bring closure to these legal proceedings.”

Ottawa has not asked for any upper limit for pay outs, meaning federal coffers will pay out 100 per cent of the wrongfully denied benefits, including to families of women who have died. The total cost could be between $8.5 million and $11 million, but that will depend on the number of eligible women.

McCrea’s lawyer, Stephen Moreau, said the government’s decision to not impose a cap on payments was significant, particularly after a protracted legal fight.

“Although this has taken a long time to get here, six and a half years of litigation, I am happy,” he said.

The women in the case, he said, have “persevered and they’re going to get 100 per cent what they’re owed.”

Time for Ottawa to discuss health insurance for tourists

It’s not fair that the Canadian system has to pay when visitors fall ill and need care.

Excerpted article was written by Dr. Charles S. Shaver Hamilton Spectator

rad Hazzard was referring to $30 million in unpaid medical expenses per year, and is proposing that all tourists to Australia be required to have health insurance. Should Canada do the same?

Increasingly, such insurance is necessary to cover tourists unexpectedly injured in auto accidents, floods, fires, bridge collapses, and in the remote event of shootings and other acts of terrorism.

Proof of health insurance is required by Abu Dhabi and Dubai, Aruba, Belarus, Bulgaria, Cuba, the Falkland Islands, Latvia, Slovakia and Russia, and possibly Thailand in the near future. It is mandated to obtain a visa to the 26 countries in the Schengen zone of Europe.

The number of overseas tourists to Canada may increase by 6.7 per cent this year. Total visitors to Toronto increased by 3.6 per cent; this included a jump in those from Mexico by 72 per cent, India by 31 per cent, Brazil by 23 per cent, and China by 9.1 per cent.

Certainly, the need for travel health insurance already exists in Canada. A bus crash on Highway 401 east of Kingston in June killed three and injured 34 Chinese tourists. A German tourist was shot in the head near Calgary in early August. Toronto now has a higher homicide rate than does New York City, and has witnessed a greater number this year than in all of 2017.

Because of the Canada Health Act and Ontario Bill 94, physicians here cannot charge wealthier patients more to compensate for those who are uninsured. With the recent dispute between Ottawa and Saudi Arabia, Canadian medical schools are losing $100,000 for each medical resident or fellow forced to leave our country. Hence, both hospitals and MDs are hardly in a position to provide free care to visitors; all should be urged to buy health insurance. Possibly, it should even be mandated by Ottawa.

Sadly, such insurance does not cover routine office visits nor complications of a pre-existing illness. The solution is much more complicated.

Many of our larger cities are now multicultural. Many new Canadians may wish to arrange for prolonged visits for parents, grandparents, etc. Yet pre-existing diabetes, cardiac disease, etc. may preclude buying adequate private insurance. Sponsors are legally responsible for medical bills incurred by their relatives. How can we be fair to the sponsors, temporary visitors, but also to physicians and hospitals?

Possibly, Medavie Blue Cross (or a similar company) — which handles the Interim Federal Health Program for refugees, as well as benefits for the military and the RCMP — could expand coverage to include these long-term visitors, under the supervision of Ottawa, with premiums to be paid by the sponsors. To reduce costs, there would be a deductible, and routine office visits and elective surgery would be excluded. It would, however, cover critical illnesses requiring in-hospital treatment. These might include a heart attack, stroke, severe infection, acute congestive heart failure, fall with a fracture, etc.

Sponsors would pay a significant premium per week. This would encourage them to keep the length of stay of relatives in Canada to a minimum; this would minimize the chance that such complications might occur.

Ottawa permits all temporary visitors to enter Canada. It follows that it now has an obligation to health providers and hospitals to ensure that they will be fairly and promptly remunerated should any visitor need unexpected medical or surgical treatment in this country.


Long days, hot nights make for riskier summer business

Long days, hot nights make for riskier summer business

Don’t get caught with your shorts down is the message that TruShield Insurance is sending to small business owners, as one out of three Canadian entrepreneurs heads into the busy summer season without insurance coverage.

“Long days and hot nights often make for riskier summer business,” says Ilda Dinis, Head of Customer Innovation & Experience at TruShield Insurance. “Whether it’s a slip and fall on the patio or a power outage that spoils thousands of dollars’ worth of inventory, just one incident can lead to liability issues or significant financial loss.”

Yet, many entrepreneurs feel their operation is not big enough to need coverage, and others believe they’re sufficiently protected by their personal insurance.

“Small business owners are starved for time. Insurance is certainly not top of mind as they ramp up to take advantage of the summer rush,” adds Dinis. “However, seasonal businesses need the same risk coverage as year-round operations.”

From an accident to theft, a thriving business can go belly-up in an instant

This year, TruShield Insurance is diving deeper into some of Canada’s beloved summer industries to help entrepreneurs identify common risks and protect what they’ve worked so hard to build.

  • Patio season: Restaurants and cafes can enjoy revenue increases just by expanding their footprint to include an outdoor space. But if it rains, or someone drops food or an item on the ground, a customer could slip and fall. If they’re injured on your property, you could be facing a costly claim – it might even be enough to shut down your business completely.
  • For the love of ice cream: As temperatures rise, lineups for the cold treat get longer. But heat and humidity can cause power outages due to equipment overheating, which could leave those beloved double-scoops melting into a warm, sticky mess – and shop owners to cover the cost of equipment repair, along with the loss of product and sales.
  • Calm before the storm: When summertime arrives, farmer’s markets pop up around the country. From bakers, butchers, cheese and beverage manufacturers to florists and hobby craft enthusiasts, any one of these small businesses can be sidelined if unexpected inclement weather hits. A strong gust of wind or torrential downpour can easily blow over tents, resulting in damage to business property, or even an injury to a member of the community.
  • Beware of Bridezilla: For most wedding planners, the allure of everlasting love is what drives their business year after year. And, while a well-executed summer wedding has all the ingredients to make those dreams come true, one misstep like booking a vendor on the wrong day, or at the wrong time, can turn a blushing bride into a bridezilla. More importantly, it can cost hundreds, even thousands of dollars in lost revenue.
  • The grass isn’t always greener: When the warmer months roll around, many homeowners come down with a serious case of lawn envy. Trusting a landscaper to bring their perfectly manicured garden back to life is a no-brainer and many landscaping companies will enjoy a big spike in business. But with a thriving black market for stolen equipment, landscapers and gardeners are at risk of losing more than just their hedge trimmers. In fact, replacing costly equipment could put them out of business altogether.

“A small loss can have a big impact on your business,” says Dinis.

“We want to make sure this summer’s entrepreneurs consider the risks involved in running a small business, and that they have insurance to protect them when they need it most.”

To learn more about TruShield Insurance and the solutions they can provide, check out the Insurance 101 section at


We are 100% Canadian and wholly owned by Fairfax Financial Holdings Limited.

As the first direct-to-consumer small business insurance provider in Canada, we are dedicated to educating Canadian business owners on the risks of running their business through industry-leading expertise, and serving them through affordable and flexible insurance solutions.

TruShield Insurance and TruShield Insurance logo are trademarks of Northbridge Financial Corporation, licensed by Northbridge General Insurance Corporation (insurer of TruShield Insurance policies).

SOURCE TruShield Insurance

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