Road Access Dispute?

If you find a road that you commonly use to access your cottage blocked or you are considering blocking other motorists from using an access road which crosses your property, you should understand the effect of the Road Access Act.

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Prejudgment Interest Cut on General Damages in Motor Vehicle Accident Claims

When a plaintiff is successful in a lawsuit, they are generally entitled to prejudgment interest (PJI) on their damage award. Prejudgment interest is awarded on any damages incurred between the date the cause of action arose (or written notice of the action was given, if related to an MVA) to the date of the order for payment of money. The Ontario Court of Appeal has written that “[a]wards of pre-judgment interest are designed to recognize the impact of inflation and to provide relief to a successful litigant against the declining value of money between the date of entitlement to damages and the time when damages are awarded.” 1

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Joint Accounts: Are They Helpful in Estate Planning?

Since starting to build my estate related practice, one of the common questions I get asked is how to organize assets to avoid probate fees or estate tax. The question has often come from the adult children of a parent that are wondering if mom or dad are being smart in their estate planning, as it is often these same children and their siblings that are the beneficiaries of their parent’s estate.

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When is an Insured Vehicle Not Really an Insured Vehicle?

The cases of Skunk v. Ketash, released on March 22, 2016, and Fosker v. Thorpe, released in 2004, are an interesting example of two judges finding their way to opposite conclusions on similar facts. In both cases, the plaintiff was injured in an accident which occurred during an alleged theft of the plaintiff’s own insured vehicle.[1] In both cases, liability coverage was unavailable to the alleged thief. In both cases, the insurer of the vehicle argued that uninsured motorist protection was not available to the plaintiff because the stolen vehicle was insured, not uninsured. Interestingly, as indicated, the outcome of the two cases was different.

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Highway 407 Loses Power to Collect Unpaid Tolls After Bankruptcy

In November, 2015 the Supreme Court of Canada ruled that a section of the Highway 407 Act was unconstitutional.

The 407 Act allowed the 407 ETR Concession Company to suspend the vehicle permits of people with unpaid toll debts, even after they had declared bankruptcy.

The 407 Company appealed to the Supreme Court after the Ontario Court of Appeal struck down the vehicle permit suspension powers in the 407 Act in December, 2013.

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Fonseca v. Hansen – Closing a Potential Loophole on Communication with Expert Witnesses

In Fonseca v. Hansen et al, released April 26, 2016, the Court of Appeal has provided further clarification on what type of communication is appropriate between counsel and an expert witness. One of the questions on appeal was whether the trial judge erred by failing to instruct the jury that pre-trial communication between the appellant’s counsel and an expert witness was not a proper basis on which to reject the expert’s testimony.

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Plaintiffs’ Entitlement to Surveillance Particulars Bolstered, Supplementary Affidavit of Documents Requirements Muddled

In Iannarella v. Corbett 2015 ONCA 110, released February 17, 2015, the Court of Appeal has bolstered the right of plaintiffs to obtain surveillance particulars, but in doing so it seems to have unnecessarily created a serious problem: it held that a party is obliged by a combination of rules 30.06 and 30.07(b) to provide an updated affidavit of documents listing any surveillance reports (and therefore presumably any privileged documents) created after the party’s affidavit of documents has been sworn. Lawyers may be kept busy preparing updated affidavits of documents.

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Defending an Action Without an Insured? When a Claim is Served Upon the Insurer by Substituted Service, Where the Rules and Practice Should, Could or Might Lead.

The issue of plaintiff’s counsel serving their statement of claim directly upon a defendant’s insurer, by way of an order for substituted service, has been around for some time.

The leading case on the issue is Laframboise v. Woodward (2002), 59 O.R. (3d) 338, 2002 CarswellOnt 1448 (Ont. S.C.J.)

It has no history. It does not have negative treatment. It has not been distinguished or overruled.

In the decision Justice Quinn decides to summarize the state of the law on the issue and make very pointed comments on the proper procedure to be followed in obtaining such an order.

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Of Frozen Pipes, Windfalls and Draconian Consequences

Written by David Thompson and Roger Chown for OIAA WP Magazine

It is very common for homeowner’s policies to exclude water claims arising when pipes freeze during the heating season if the insured was away from the premises for more than four consecutive days, unless the insured had arranged for a competent person to enter the dwelling on a daily basis to ensure that heating was being maintained. However, there are surprisingly few cases that squarely deal with this simple fact pattern. After one of the coldest Canadian winters in decades, it seems appropriate to consider this topic.

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Relief From Forfeiture Under the Courts of Justice Act in Auto Insurance Cases: A Review of Kozel v. The Personal Insurance Company

The Ontario Court of Appeal’s decision in Kozel v. The Personal Insurance Company, 2014 ONCA 130 has expanded the availability of relief from forfeiture under section 98 of the Courts of Justice Act. The court’s decision confirms that relief from forfeiture under this section is available for violations of statutory condition 4(1) of Ontario’s standard automobile insurance policy (OAP1), even where section 129 of the Insurance Act does not apply.

Kozel has altered the landscape for statutory condition 4(1) denials. The Court of Appeal held that driving with an expired licence is not non-compliance with a condition precedent in an insurance contract, but imperfect compliance. Kozel expands access to relief from forfeiture, concluding that only in rare cases will a finding of non-compliance be made. In most cases, the breach will be deemed imperfect compliance, and relief from forfeiture may be available.

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Novice and Young Drivers: Beware of Voiding Your Insurance Coverage

Most novice and young drivers know the graduated licensing rules. Most of their parents do not. And very few people, young or old, appreciate the insurance implications that arise from violations of the graduated licensing rules, or the devastating personal consequences that can flow when coverage is not available because these rules are not followed. These results come from judicial interpretation of the graduated licensing regulations in several little-known court decisions.

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Conditions for Novice, Young & Other Drivers in Ontario

Violation of any of the conditions of your driver’s licence may void your liability and collision insurance coverage, because under statutory condition 4 (1) of the standard Ontario auto policy (OAP1), “the insured shall not drive or operate or permit any other person to drive or operate the automobile unless the insured or other person is authorized by law to drive or operate it.” For the same reason, if the owner of a vehicle permits the driver to use the vehicle while any of the driver’s conditions are being violated, the owner risks voiding his or her insurance coverage. To avoid coverage issues, make sure you understand and follow all of the conditions applicable to your driver’s licence, as well as those of anyone you allow to drive your vehicle.

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Wagg The Dog: An Unnecessary Bureaucracy Has Spawned

An unnecessary bureaucracy has spawned from the 2004 decision of the Court of Appeal in D.P. v. Wagg (2004), 71 OR (3d) 229, 239 DLR (4th) 501.

D.P. v. Wagg was a civil sexual assault case. There had been a criminal sexual assault charge arising from the same incident which gave rise to the lawsuit, and the plaintiff in the civil suit wanted production of the Crown brief. The defendant in fact had possession of the Crown brief, having received it in the criminal proceedings, and the plaintiff did not.

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Carriage Disputes in Subrogated Claims: Until Fully Indemnified the Insured Controls the Action – Zurich v. Ison T.H. Auto Sales, 2011 ONCA 663.

In Zurich v. Ison T.H. Auto Sales, following a large loss event, the insurer paid out $1.1 million to its insured. The insured claimed that it had an additional uninsured loss of $700,000 and commenced an action against the alleged wrongdoer, including in its action both its claim for its uninsured loss and the insurer’s subrogated claim. A dispute arose between the insured and the insurer over who should have carriage and control of the action. The insurer brought an application for carriage of the action. The application was dismissed by the application judge.

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