Court Questions Whether “WCB Defence” Applies to Indivisible Injuries

Last year Mr. Justice Burnyeat reasoned, in Pinch v. Hofstee, that a Plaintiff’s damages for indivisible injuries must be reduced to the extent that one of the events causing/contributing to the injury arose from a matter where tort litigation is barred by the Workers Compensation Act.

Last week ICBC asked a Court to uphold this reasoning in a separate lawsuit but Mr. Justice Kent declined noting the Pinch ruling was “highly debatable“.

In last week’s case (Kallstrom v. Yip) the Plaintiff was involved in a total of 6 collisions which gave rise to indivisible injuries of chronic pain and depression.  While dealing with the consequences of her injuries the Plaintiff also made a claim with WorksafeBC and received some compensation.  The Defendants argued that damages must be reduced to the extent of the workplace incident’s contribution to the Plaintiff’s condition.  Mr. Justice Kent disagreed and noted as follows:

[371]     I do not agree that any reduction in damages is required.  There are several reasons for this.

[372]     First, this is not a defence that has been formally pleaded in any of the actions.  The facts relating to, and the legal basis for, such a technical and unique defence are required to be pleaded and this has not been done.

[373]     In any event, Pinch neither applies to nor governs the present claim.  It was the subject matter of an appeal and cross-appeal, but the case was settled and thus no definitive ruling on this interesting (and highly debatable) point of law has yet been made by the Court of Appeal.  It must be noted that other decisions of this Court have treated a subsequent workplace accident aggravating a pre-existing injury as a situation of indivisible injury for which the defendant in the first accident remains 100% liable:  see e.g., Kaleta v. MacDougall, 2011 BCSC 1259.

[374]     Further, I do not agree that the employer’s conduct is properly labelled as tortious in this case.  It is not necessarily a tort for an employer to be difficult and demanding.  Similarly, the distraught actions of a mother witnessing a near-death incident involving her child may also not amount to an actionable tort, particularly where the result is mental distress without accompanying physical injury. Pinch involved negligence on the part of the Workers Compensation Act-immunized worker.  Further, Kaleta involved an on-the-job injury while lifting heavy product, i.e. no third-party negligence.

[375]     In the result, I hold that the “WCB defence” does not apply and no reduction in damages is required on that account.

Adaptation, not mitigation, will save the industry money now

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Full economic cost of rapidly changing fire hard to calculate

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Insurers brace for claims as wildfire rages through Fort McMurray

Insurers brace for claims as wildfire rages through Fort McMurray

Excerpted article written by  JACQUELINE NELSON

The Globe and Mail

As wildfire continues to rage through Fort McMurray, insurance companies are readying for claims to hit, comparing the devastation to one of the country’s costliest natural disasters.

Intact Financial Corp., Canada’s largest property and casualty insurer, has sent staff to the region and increased the capacity of its phone lines. The company said Wednesday morning that losses are already piling up.

“So far, in terms of losses reported since last night, we have about 40 losses reported. Some are evacuations, some are total losses … probably about 25 fires at this point,” Mathieu Lamy, senior vice-president of claims at Intact, told analysts on an earnings conference call, adding that it’s “very early to assess where it’s going to end up.”

The damage in Fort McMurray is drawing comparisons to losses taken by insurers in the spring of 2011 when flames engulfed the town of Slave Lake, Alta. – the most expensive catastrophic loss caused by fire that has ever been recorded in Canada.

Slave Lake caused about $742-million in insured losses and destroyed about one-third of the town, according to the Insurance Bureau of Canada (IBC), an industry group. That puts it in the top five costliest disasters in Canadian history, in a list topped by the 2013 floods in Alberta that caused $1.8-billion in insured damages.

“I would say there are lots of similarities between Fort McMurray and Slave Lake,” said Intact chief executive officer Charles Brindamour on the call, stressing that it was too early to provide comment on the extent of the damages and that customer safety was the paramount concern. Intact had a larger exposure to the Slave Lake disaster because of its market share in the region, and the company’s losses climbed to between $45-million and $55-million after tax as a result of those fires.

Alberta has been grappling with an above-average number of fires of late. In 2015, there were 1,786 wildfires, according to government figures – the third-highest number in the past 25 years. Air tankers dumped enough flame retardant to fill four Olympic-sized swimming pools to manage the fires in 2015.

In 2016, the wildfire season began a month early on March 1, after low levels of snow and rain were recorded.

Mr. Brindamour said Intact had been watching Fort McMurray since the weekend for signals that fire damages could become catastrophic. Yesterday, Intact began sending extra people to Alberta to prepare its response efforts for as soon as access to the sites becomes available.

Other insurers are also mobilized and ready to handle increased call volumes, said Steve Kee, spokesman for the IBC. The IBC has set up its own emergency response line to take calls from residents with questions or concerns. The number is 1-844-227-5422.

Homes and businesses in the area may have different levels of coverage, but policies typically cover fire damage as well as additional living expenses during the time people were forced to leave their homes following the evacuation order.

As Intact waits for more information, the company has tallied its policies in the area. “We know we insure about 1,500 houses, 1,300 tenants in condos,” said Intact’s Mr. Lamy, adding that the company would also be exposed to automotive risk with potential damage to an unknown number of vehicles.

Losses reported on commercial insurance policies can also add up quickly and Intact said it has about 350 clients with insurance for their property, building contents and losses from business interruption. These policies offer a range of coverage from about $20,000 to $12-million, Mr. Lamy said.

Toronto: Guitarist Liona Boyd recovering from broken knee and shoulder after fall

TORONTO _ Classical guitarist Liona Boyd is recovering from a broken knee and shoulder after slipping at her home.

The five-time Juno Award winner says she crashed to the ground on April 26 at her Palm Beach, Fla., home, where she splits her time with Toronto.

Boyd said in a release that she is now recovering at a Toronto hospital where she underwent surgery on her shoulder and knee.

She was airlifted there after being treated at a Florida trauma unit.

Boyd added that doctors expect her to be back walking and playing guitar within two months.

The singer said she’s grateful to a Good Samaritan who happened to be near her Florida home when she fell, and heard her screams.

“I slipped on a loose piece of cardboard in my garage which sent me suddenly crashing to the ground, I was panicked lying there thinking that I might faint at any minute, my body trembling with adrenaline. I knew I had broken my shoulder and my knee, was in excruciating pain and panicked that no one would find me as I live alone, and my next door neighbours were away,” said Boyd, according to a release.

“I was yelling so loud and after 10 minutes, which felt like an eternity, a Good Samaritan heard my screaming from a block away.”

Boyd said an ambulance took her to a hospital in West Palm Beach, Fla., and her travel insurance then sent a private jet and a medical team to airlift her out of the Fort Lauderdale airport at 1 a.m. on Wednesday to Toronto.

“It could have been so much worse,” said Boyd.

“I could have broken my neck, suffered a concussion, or smashed my guitar playing hands or lain there undiscovered for days as I was unable to reach my cellphone. When I return next December I’m going to track down my saviour who called 911 and take him and his wife to a nice dinner!”


Feds quietly paid $75M settlement for Lac Megantic victims and to avoid lawsuits

By Andy Blatchford


OTTAWA _ The federal government quietly spent $75 million to settle with victims and creditors affected by the Lac-Megantic rail disaster  a contribution that also shielded it from lawsuits related to the deadly crash.

Former transport minister Lisa Raitt said the deal, which involved 24 other defendants who settled, was under negotiation before her Conservatives lost the October election to the Liberals.

The Liberals have refused to reveal how much the government gave to the $460-million settlement fund, even though at least two parties accused of wrongdoing in the deadly Quebec derailment disclosed their contributions.

But in a recent interview Raitt said the amount was public.

She said it was included in Transport Canada’s supplementary estimates as well as in its quarterly financial report under “out-of-court settlement.” The amount listed is $75 million.

Last week, Transport Minister Marc Garneau said the figure was “classified” when asked how much taxpayer money the government set aside for the settlement.

Garneau also reiterated Ottawa’s denial under both the Liberals and the Tories that it had any legal responsibility for the 2013 oil- train accident that killed 47 people and levelled part of Lac-Megantic.

“We don’t acknowledge that we had any responsibility; however, we did want to make a contribution because of the impact of this terrible tragedy in Lac-Megantic,” Garneau said last week.

Raitt agreed that the government’s main goal behind the settlement was to speed up the process.

“The motivation was simple: this was an opportunity to get money to the victims for wrongful death in a shorter period of time through the U.S. bankruptcy proceedings as opposed to a long, drawn-out, litigious court case,” Raitt said in a recent interview.

The government’s decision to settle may have also been made to avoid the cost of fighting the allegations in court. It would have faced numerous lawsuits related to the derailment on both sides of the border, said the U.S.-based bankruptcy trustee for the company at the centre of the crash Montreal, Maine & Atlantic Railway.

Robert Keach has also said that, contractually speaking, the arrangement explicitly stated the settling parties were not acknowledging any liability with their contributions.

The Transportation Safety Board’s 2014 report on the crash said Transport Canada failed to recognize that the railway had urgent safety problems and was not following the rules. It also said the department failed to audit safety procedures at MM&A and didn’t conduct enough inspections.

Raitt responded to the TSB report at the time by saying the government’s role was to put the rules in place. The companies, the Conservative minister added, were expected to follow those regulations something she said MM&A did not do.

In the recent interview, Raitt reiterated the position that the rules weren’t respected.

“We don’t believe we are liable and it’s not an admission of liability,” said Raitt, who added she would have publicly disclosed the government’s settlement contribution.

Irving Oil has announced it had contributed $75 million to the fund. The train was transporting crude oil to Irving’s refinery in Saint John, N.B.

World Fuel Services Corp., the U.S. company that owned the oil aboard the train, announced a few months later that it provided US$110 million toward the settlement.


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