Three Peel officers have been busted in recent years for colluding with the same tow truck driver and accused fraudster.

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Co-operators Insurance rejects church’s bid to forego trial

By Jennifer Choi, CBC News

The lawyer representing Co-operators General Insurance is asking a judge to reject the Archdiocese of Moncton’s request to forego a trial.

Danys Delaquis is acting on behalf of Co-operators Insurance. (CBC)

Danys Delaquis told Justice Stephen McNally Monday that the case merits a trial.

“We reject a summary judgement,” Delaquis said in the Court of Queen’s Bench in Moncton.

The Archdiocese of Moncton is suing Co-operators General Insurance for $4.2 million. It wants to recover some of the $10.6 million it has paid out to victims of abuse through a confidential compensation process.

The archdiocese had a policy with the insurer between 1977 to 2000, and it believes that’s the amount of money the insurer should pay.

One reason the archdiocese is requesting a summary judgement is because it is “less expensive.”

If McNally agrees to a summary judgement the two sides would forego a trial and he would review evidence and make a decision.

Lawyer Chris Blom is representing the Diocese of Moncton, said claims need to be settled by 2016. (CBC)

“There are no other documents that the parties have that should have been brought before the court in a trial, no further evidence that will assist us,” said Chris Blom, one of the lawyers representing the diocese.

Blom’s co-counsel Mark Fredrick also told McNally the archiocese is under “pressure.”

Frederick told the court that the archdiocese has commitments to settle some claims of abuse by June 2016. The archdiocese is requesting McNally render a decision by that date, so in the event the archdiocese is awarded some or all of the $4.2 million it wants from Co-operators, it can use that money to pay claimants.

McNally stressed that is a tight timeline and “a bit unfair to other people that have been waiting in the queue for trial dates, that will be a consideration.”

McNally said he would look into dates and see what he can do, but he made no guarantees.

Files lost

One of the main issues in this case is the lack of insurance policy records.

Both the Archdiocese of Moncton and the Co-operators have been unable to locate the policy records.

The lawyers for the archdiocese argue that according to a former policy writer with Co-operators, the maximum coverage limit is $500,000 per occurrence between April 1977 to February 1992. After that the policy limit changed to $2-million per occurrence of abuse.

Delaquis told the judge without the records there is no way of knowing with certainty the exact annual limits to the policies.

“Co-operators can’t confirm what the wording is for the entire policy period,” Delaquis told the judge.

McNally will now deliberate and make his decision on how to proceed.

Canadian Life and Health Insurance Association says rates would climb if system changes

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Action for underinsurance coverage dismissed where insured settled Florida action for less than available limits

Action for underinsurance coverage dismissed where insured settled Florida action for less than available limits

Miller Thomson LLP

In a recently reported case, Kovacevic et al. v ING Insurance Company of Canada et al., 2015 ONSC 3415, the court has ruled that an insured may not settle an action for less than the tortfeasor’s available policy limits and then bring an action against their own automobile insurer for underinsurance coverage.

The plaintiffs were injured in a motor vehicle accident which occurred in Florida on February 4, 2004. The plaintiff’s vehicle was struck by a tractor/trailer vehicle. They sued the owner of the tractor and the owner of the trailer. The owner of the tractor failed to defend and was noted in default. The owner of the trailer defended the Florida action. At the time of the accident, the owner of the trailer was insured by Lincoln General Insurance (Lincoln) with a policy limit of $1,000,000.00.  In 2010, the plaintiffs settled the Florida action for $300,000.00 at a private mediation and signed a Full and Final Release in favour of the defendants and Lincoln in the Florida action. The plaintiffs then brought an action for underinsurance coverage against their own automobile insurer, ING, who was not a party in the Florida action and was not notified of the mediation proceedings. The plaintiffs contended that ING was not entitled to a deduction of the Florida tortfeasor’s Lincoln insurance policy limits in the circumstances of this case. The plaintiffs further submitted that the limits of the policy were unavailable in the Florida action as they believed that Lincoln was about to be insolvent at the time of the settlement. ING brought a motion for summary judgment dismissing the action on the basis that the plaintiff was not entitled to settle the Florida claim for less than the available policy limits and then pursue a claim against their own insurer for underinsurance coverage.

The Court considered the following issues:

  1. If the plaintiffs settled their claim against the Florida tortfeasor for less than that tortfeasor’s available insurance policy limits, can they pursue a claim against their own insurer, ING, for underinsured coverage?
  2. In the alternative, if the answer to the first issue is yes, is ING entitled to a deduction of the Florida tortfeasor’s full policy limits of $1,000,000.00 from any award of damages?
  3. Whether summary judgment should be granted in favour of ING on the grounds that there is no genuine issue requiring a trial with respect to the plaintiffs’ claim against ING for underinsured coverage.

ING’s motion for summary judgment was granted. Justice MacKenzie ruled that the plaintiffs were not entitled to settle their claim against the Florida tortfeasors for less than the available policy limits of the Florida tortfeasor’s insurance and then pursue a claim against their own insurer for underinsurance coverage. The plaintiffs were not permitted to rely on a bald allegation that Lincoln was potentially insolvent at the time of the settlement when they did not conduct due diligence to determine whether the policy limits were unavailable when they entered into the settlement. There was no evidence that Lincoln was not solvent at the time of the settlement and therefore, the plaintiffs had failed to prove on a balance of probabilities that the policy limits of the Florida tortfeasor were not available at the time of the settlement.

The case affirms that a party must be diligent with respect to the availability of the tortfeasor’s policy limits during settlement negotiations. Insurers will be pleased with this decision as they should not be expected to compensate for this lack of diligence

Risks remain even as courts hold back on liability for private parties

Written By Chella Turnbull | Law Times

With the holiday season approaching, it’s a good time for a reminder about the liability issues facing commercial establishments for the actions of their drunk patrons. The issue is a source of amazement to many foreigners. If you tell people from Germany or Australia that a bar can be liable when a patron drives drunk, they’ll assume you’re kidding.

In 1974, the Supreme Court of Canada held in Jordan House Ltd. v. Menow that a commercial establishment serving alcohol has a duty not to serve patrons past the point of intoxication. The plaintiff was a pedestrian struck while walking home. The court held that the accident was foreseeable because the bar had served him too much. In practical terms, bars do make significant profits and, therefore, it’s reasonable to transfer some of it to the costs of those injured as a result of alcohol consumption.

The court hasn’t however, extended the duty not to serve guests to excess to the private homeowner. In 2006, the Supreme Court of Canada held in Childs v. Desormeaux: “A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk.” That’s still the law in Canada.

But Canadian courts, in obiter dicta, have held that if a homeowner serves alcohol to minors, actively encourages consumption or allows drinking in dangerous circumstances, the potential for liability remains a risk. The B.C. case of Chretien v. Jensen held the defendant homeowner 60-per-cent liable for allowing guests to drink on a bridge that had no handrails. In Sidhu v. Hiebert, the B.C. Supreme Court, holding that the issue required a full trial, dismissed a summary judgment application brought by a homeowner whose guest had driven and allegedly killed a third party.

These and other cases leave the door open for a decision establishing social host liability. As a result, social hosts would be wise to take steps such as holding back keys and calling cabs.  Nobody wants to be the defendant in a test case.

For company holiday parties, which are a sort of hybrid between the commercial and social-host situations, foreseeability is a crucial part of the analysis. Liability of an employer likely requires specific knowledge of impairment plus a lack of any policy to help employees get home. The duty to employees would be more significant in rural or suburban settings where people are more likely to be driving as opposed to urban centres. One way to avoid liability is to hold office parties at a commercial establishment.

Based on Hunt (Guardian of) v. Sutton Group Incentive Realty Inc. and Jenkins v. Muir, there’s a positive duty of care between employer and employee; however, the employer must have specifically foreseen that the particular employee would be driving in an impaired state. In Hunt, the Ontario Court of Appeal wouldn’t dismiss the case against the employer even though there was evidence that the plaintiff wasn’t drunk when she left the company party. It held that the issue was one that required a trial. The Court of Appeal did opine, however, that there must be a clear chain of causation between the employer’s knowledge of the employee’s impairment and the accident. Given that comment, it’s likely wise to ensure that employees are aware of available transportation assistance when it comes to parties that take place at an employer’s office without trained servers to oversee consumption.

While the courts have assigned liability to commercial establishments, they’ve so far been reluctant to intrude into the realm of private parties. As the court stated in Childs: “A host is entitled to respect the autonomy of a guest. The consumption of alcohol, and the assumption of the risks of impaired judgment, is in almost all cases a personal choice and an inherently personal activity.”

Chella Turnbull, a lawyer practising personal injury litigation at Zuber & Co. LLP, is available at 416-646-3129

Alberta: Insurance companies bracing for a flurry of calls

By CINDY WHITE | 660 News

The phones could be ringing off the hook at your insurance agent’s office.

Claims will likely jump due to the snowfall in southern Alberta.

Heather Mack with the Insurance Bureau of Canada explained to 660 NEWS, crashes often spike around the first significant snowfalls, and the time change related to daylight saving.

She pointed out, drivers need to remember it’s not summer anymore.

“Never think you’re invincible on the road, because you’re quickly proven wrong, not only just based on the size of the vehicle you’re driving, but the damage you can do to other people on the road as well,” she said.

Mack added, the Insurance Bureau believes drivers should be given the choice of whether they use winter tires, not be forced to do so by government regulation.

However, many companies offer discounts to those who do swap out to stickier rubber when the cold and snow blow in.

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