In a case where an injured party in New Brunswick has been overcompensated for past loss of income as a result of receiving section B Loss of Income Benefits, the trial judge is obligated to reduce the amount payable for non-pecuniary damages to account for the over-compensation in applying the release provisions of section 263(2) of the New Brunswick Insurance Act

21. March 2005 0
Gagnon v. Black, [2005] N.B.J. No. 124, New Brunswick Court of Queen’s Bench Trial Division

The ‘insured v. insured’ exclusion clause contained in a Directors and Officers Liability Insurance policy generally excludes coverage to officers when a claim is brought against them by the Corporation named in the policy. Despite the clear wording of the clause, the clause will not exclude coverage to an officer when the officer and the Corporation are adverse in interest.

04. March 2005 0
Kohanski v. St. Paul Guarantee Insurance Co., [2005] O.J. No. 5882,  Ontario Superior Court of Justice

The Court of Appeal dismissed the appeal of the insurer who was ordered to pay the replacement cost of a house damaged by fire. This was despite the insured’s failure to comply with the requirement of the policy to repair or replace damaged buildings within 180 days because the replacement cost was found not to have been settled between the parties within the time allotted.

04. March 2005 0
Hua v. Optimum West Insurance Co., [2005] B.C.J. No. 412, British Columbia Court of Appeal

The Defendant (the “Insured”) in a defamation action applied for a Declaration that it was entitled to a defence under the terms of a Directors’ & Officers’ Liability policy (the “Encon Policy”) and a Commercial General Liability policy (the “Co-Operators Policy”), and for a further Declaration that it was entitled to appoint its own counsel. The court held that Co-Operators had a duty to defend because some allegations in the pleadings fell within the realm of its duty to defend. The court further held that the Insured was entitled to appoint its own counsel at the expense of the Insurer.

04. March 2005 0
Conservation Council of New Brunswick Inc. v. Encon Group Inc., [2005] N.B.J. No. 109, New Brunswick Court of Queen’s Bench Trial Division

The Manitoba Court of Queen’s Bench considered whether, based on the terms of a standard mortgage insurance clause, the Plaintiff Mortgagee was entitled to indemnification from the Insurer. The loss was clearly excluded under the policy. However, the court held that because the insurer failed to notify the Plaintiff Mortgagee of an alteration to the policy, as required by statute and the standard mortgage insurance clause, the Insurer was obligated to indemnify the Plaintiff Mortgagee for the loss sustained.

02. March 2005 0
Assiniboine Credit Union Ltd. v. Aviva Insurance Co. of Canada, [2005] M.J. No. 61, Manitoba Court of Queen’s Bench

The Court of Appeal held that an arbitrator was correct in ruling that an insurer under a liability policy issued to the Board of School Trustees must indemnify the Board for costs it was “legally obligated to pay” for passing unconstitutional resolutions disapproving of books depicting children with same-sex parents. The definition of “wrongful act” under the policy was broad enough to cover the risk of damages for constitutional wrongs.

01. March 2005 0
British Columbia v. Surrey School District No. 36, [2005] B.C.J. No. 364, British Columbia Court of Appeal