British Columbia Insurance Blog : Canada Insurance Lawyer & Attorney : Michael Thomas of Harper Grey Law Firm : British Columbia, Vancouver

The Court of Appeal substantially allowed the appeal from a motion decision striking out numerous claims in a proposed class action relating to the sale and administration of four types of life insurance policies. The plaintiffs' claims for breach of duty of good faith and fair dealing and for deceit and fraud were not mere reiterations of the plaintiffs' claim for negligent and fraudulent misrepresentation and should be allowed to stand. Their claim for breach of contract was based on ambiguious terms in the contract and was likewise allowed to stand. A claim relating to settlement entered into by the defendant insurer was struck out on the basis that no relief was being claimed.

Kang v. Sun Life Assurance Co. of Canada, [2013] O.J. No. 768, February 25, 2013, Ontario Court of Appeal, J.I. Laskin, M. Rosenberg and S.T. Goudge JJ.A.

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The defendant insurer sought dismissal of a claim for coverage under the uninsured automobile provisions of a policy. The claim had been denied on the basis the insured was in breach of the statutory conditions of the policy. The insurer brought a motion for summary dismissal and the motion was dismissed. The insurer appealed and the Court of Appeal upheld the motion decision, holding that the statutory conditions did not apply to uninsured automobile coverage. The Court of Appeal also held that the Limitation Act applied to a cross-claim brought by the Minister of Finance under the Motor Vehicle Accident Claims Act, but stayed the application to have the cross-claim dismissed.

Bruinsma v. Cresswell, [2013] O.J. No. 770, February 22, 2013, Ontario Court of Appeal, J.I. Laskin, H.S. LaForme and A. Hoy JJ.A.

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An action for coverage under a homeowner's insurance policy to recover the full value of legally cultivated marijuana plants was dismissed. Coverage was limited to $1000 per plant as per the extended coverage provisions of the policy. The fact that the plants were not grown for "landscaping" purposes did not bring them under the general contents coverage under the policy.

Stewart v. TD General Insurance Co., [2013] O.J. No. 955, March 7, 2013, Ontario Superior Court of Justice, J.A. Ramsay J.

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The action for coverage under a commercial motor vehicle insurance policy was allowed where the court held that the coverage available for a higher rated vehicle could be substituted for the coverage for a lower rated vehicle provided that the coverage on the owner's other vehicles was correctly rated for their general use, even if they were operating in excess of their insured range on the day in question.

Streeper Contracting Ltd. v. Insurance Corp. of British Columbia, [2013] B.C.J. No. 389, British Columbia Supreme Court, L. Fenlon J.

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Application for a declaration that pursuant to the Insurance Act, R.S.O. 1990, c. 1.8 and Ontario’s Standard Automobile Policy (“SAP”) the insurer had no obligation to defend its insured against a claim after paying its policy limits to the plaintiff. The application was dismissed and the insurer was ordered to continue to bear the cost of defending the insured.

Jevco Insurance Co. v. Malaviya, [2013] O.J. No. 394, January 29, 2013, Ontario Superior Court of Justice, E.M. Morgan J.

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Application by the insurer for a declaration that it was not required to pay a portion of the judgment obtained by the plaintiff for lost wages. The insurer argued the lost wages were included in the definition of "insured claim" under section 106 of the Insurance (Vehicle) Regulation. The insurer’s application was dismissed.

Jordan v. Lowe, [2013] B.C.J. No. 170, January 18, 2013, British Columbia Supreme Court, P.M. Willcock J. (In Chambers)

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Dismissal of a motion by the insurer (statutory third party) to set aside summary judgment on liability against its insureds (the defendant driver and the defendant owner) because the insurer was attempting a collateral attack on a prior order refusing to set aside default judgment against one of the insureds (the defendant owner).

Roy v. Lapointe, [2013] O.J. No. 557, February 4, 2013, Ontario Superior Court of Justice, M.P. Eberhard J.

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The use or operation of a vehicle does not directly cause impairment where the injury is caused by an intervening act that cannot reasonably be said to be part of the “ordinary course of things” associated with the use or operation of a vehicle. An injury does not arise directly or indirectly from the use or operation of a vehicle where the involvement of a vehicle is merely ancillary or fortuitous to the injuries inflicted.

Martin v. 2064324 Ontario Inc. (c.o.b. Freeze Night Club), [2013] O.J. No. 172, January 17, 2013, Ontario Court of Appeal, E.A. Cronk, G.J. Epstein and S.E. Pepall JJ.A.

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Litigation privilege does not automatically attach on the basis that litigation counsel has been retained in relation to an incident. Litigation privilege that arises between parties will dissolve if one party takes action against the other.

Jetport Inc. v. Global Aerospace Underwriting Managers (Canada) Ltd., [2013] O.J. No. 156, January 10, 2013, Ontario Superior Court of Justice, R.F. Goldstein J.

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Where coverage under an original policy lapses in accordance with its own terms, the principles of contract formation, rather than contractual interpretation, may apply in determining whether a new policy has come into existence.

Khosah v. Canada Life Assurance Co., [2013] B.C.J. No. 99, January 11, 2013, British Columbia Court of Appeal, R.T.A. Low, D.M. Smith and A.W. MacKenzie JJ.A.

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