Class Action against Yasmin?
Lawyers in the United States are reviewing whether or not there might be the possibility of a potential class action against the popular birth control drug Yasmin. Yasmin is the successor the previous version of Yaz that has also faced a number of lawsuits.
Doesn’t seem to be much in the mainstream media other than the attorney’s website. Also, Healthy Ontario a government operated website has not cited anything such concerns with the drug.
Apple tries to silence owner of exploding iPod with gagging order
Looks like Apple isn't as nice as everyone thinks:
Apple attempted to silence a father and daughter with a gagging order after the child’s iPod music player exploded and the family sought a refund from the company.
The Times has learned that the company would offer the family a full refund only if they were willing to sign a settlement form. The proposed agreement left them open to legal action if they ever disclosed the terms of the settlement.
Beef Recall
The Canadian Food Inspection Agency has issued a Health Hazard alert for beef products sold at President's Choice supermarkets. The company is called JBS Swift Beef Company. Additional information can be found at the following link:
http://www.inspection.gc.ca/english/corpaffr/recarapp/2009/20090630e.shtml
Student v Carleton
Macleans reported, "Student sues Carleton for broken nose". A former Carleton student who was assaulted while in his dorm by two other students has now commenced a personal injury action against the university.
The assault took place in 2003 and the Plaintiff is now 24 years old and missed the two year limitation to commence his action. His lawyer argues it was due to the fact that the true nature and consequences of the assault could not be appreciated by the Plaintiff. It is foreseeable that the Defendant, university will be looking to bring a summary judgment motion to dismiss the claim due to the limitation issue.
Critics of the lawsuit have and will argue, what more could Carlton have done? Well, without the commencement of the lawsuit nobody really knows what it is that Carlton has already done.
The fact that the Plaintiff is working as a security guard and likely alleges to have sustained psychological trauma should be interesting.
SARS
Jamal Estate v. Scarborough Hospital - Grace Division [2009] O.J. No. 1822 was decided May 2009 by the Ontario Court of Appeal. Here the Plaintiff, the Estate of Jamal commenced a legal action against a number of organizations as a result of Jamal's death due to SARS. Specifically, the province of Ontario was a named Defendant. It was alleged that Ontario failed to satisfy its duty of care to Jamal.
The Ontario Court of Appeal dismissed the claim against Ontario and held that, Ontario did not owe Jamal a private care of duty. In coming to its decision the court relied on other similar cases such as, Eliopoulos v. Ontario (Minister of Health & Long-Term Care) [2006] O.J. No. 4400. See also, Williams v. Ontario.
Surveillance
2009-05-27 15:44:06
In personal injury actions surveillance is often used by an insurance company to discredit a Plaintiff and to catch them engaging in certain activities they allege they are unable to perform.
During the litigation process the issue of surveillance often becomes contentious. While a Defendant might retain surveillance they don't end up disclosing it. The Ontario Rules of Civil Procedure require that if you intend to rely on such surveillance you have to disclose it 90 days before trial.
All parties should be aware of the disclosure obligations regarding surveillance. A recent Ontario case, Marchese v Knowles 2009 CanLII 12116 (ON S.C.) lays out some of these obligations.
The principals from Marchese are essentially identical to Walker v. Woodstock District Chamber of Commerce (2001) by the Divisional Court.
According to these cases if a party has surveillance it should disclose:
- Dates, times and precise locations;
- particulars of the activities and observations made, and
- the names and address of the persons who conducted the surveillance.
Although, the surveillance itself does not need to be provided the particulars as referenced above does. In fact, Marchese, even states that particulars of the log notes should be produced as well.
Finally, the rules are slightly different when dealing with surveillance in the context of hearings before the Financial Services Commission of Ontario (FSCO). FSCO requires that if you intend to rely on surveillance you must deliver all the raw material generated by the investigators and their contact particulars. Failure to do so, could have grave consequences for the party who intends to rely on the surveillance.
Not Considered A Substantial Wrong
A civil action can be commenced against a long term disability carrier. Many of these carriers offer disability policies through employers. Examples include, Manulife, SunLife, Citadel to name a few. A civil action against a long term disability carrier is defined as a breach of contract. This is based on the fact that employees whose employers offer group disability insurance enter into a contract with the disability carrier by virtue of their employment. The contract has standard wording that offers disability benefits for those who qualify. The definition of a disability is often what becomes a bone of contention between parties.
In the reported case of Barlow v. The Citadel General Assurance Company, the trial judge stated that the insurance company bore the responsibility of proving the insured (the person applying for benefits) was disabled since they accepted the claim and made payment. Citadel General Assurance Company's appeal to the Ontario Court of Appeal was dismissed by a very brief decision.
The Ontario Court of Appeal acknowledged the trial judge made an error in law. However, the court did not classify the error as a, "substantial wrong or miscarriage of justice." The Ontario Court of Appeal ordered a new trial.
In long term disability cases, the insured will typically have to satisfy the test for disability as defined by the long term disability carriers policy. While few civil cases for personal injury make it to trial. Even fewer breach of contract, long term disability cases make it to trial.
G1 Defendant Provided Coverage
There are many reasons why an insurance company will deny coverage to its customer the insured. Often this happens in drinking and driving cases or other violations that contravene the terms of the insurance policy. When an insurance company denies coverage it will only cover any claim for damages up to $200,000. Therefore, if you are being sued for a million dollars which is usually the case, you as the insured will be responsible for anything above that.
Shah v. Becamon 94 O.R. (3d) 297 is a recent case decided by the Ontario Court of Appeal where the insurer Wawanesa denied coverage to its insured i.e, the Defendant. The Defendant, Becamon held a valid G1 license which required a driver of at least four years to accompany her. However, Becamon decided to take the car on her own. She ended up hitting a pedestrian, Shah in the parking lot at Bathurst and Wilson.
She pled guilty to the Highway Traffic Act charge and paid a small fine. However, in the Plaintiff's civil case Wawanesa the insurer denied coverage. At trial, the Judge used the principals of fairness to ensure that Becamon be afforded full coverage by her insurance company. The trial Judge reasoned that, the strip mall parking lot did not constitute a highway as defined by the Act. Therefore, the Defendant was not in contravention of the insurance policy specifically the wording authorized by law:
4(1) 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.
The Ontario Court of Appeal accepted this position.
Furthermore, Wawanesa also argued that based on the fact the Defendant, Becamon pled guilty to the two offences this meant she was not authorized by law to drive the vehicle. The trial Judge did not accept this position and neither did the Court of Appeal. The trial Judge provided reasons for his decision but it seems ultimately the crux of the issue rested on the fact that:
On the other hand, the stakes in the present civil action, which will probably be long, complex and costly, are much greater -- compensation potentially in the hundreds of thousands of dollars for an innocent pedestrian. In my view, this dichotomy of process and consequences suggests that, in the words of Arbour J. in C.U.P.E. , "fairness dictates that the original result should not be binding in the new context".
In conclusion, it seems that both courts used the principals of fairness to ensure that the Defendant was provided full coverage. At the end of the day, if the Defendant was not provided full coverage she would face grave financial consequences. In addition, the Plaintiff would probably have a difficult time in collecting anything above $200,000 from his civil suit.
It is important to always ensure you understand your policy and anything that can lead to a breach of the policy. Clarify issues with your broker and keep records of your discussion.
$100,000 For Medical And Rehab?
The Toronto Sun reported today, Ontario told to slash insurance benefits Insurance claims for car injuries face 75% cut. Essentially, the Financial Services Commission of Ontario made the recommendation as part of it's five year review of the insurance industry. This issue stems back to my previous entries and deals with accident benefits that you collect from your own insurance company.
Under the SABS legislation if you are not a catastrophically injured person the maximum you are entitled to is $100,000 for medical and rehabilitation benefits. However, the new proposal recommends $25,000. Critics state that this would place an incredibly heavy burden on the Ontario health care system as more individuals would turn to the provinces for relief. The Insurance Industry says that Ontario has the highest payouts and that people are being over treated.
The complete Toronto Sun article can be found here.
Interest On Unpaid Accident Benefits
As discussed previously accident benefits are part of the no fault scheme in Ontario. Regardless, of whether you are at fault or not you can apply to your insurance company for benefits. If an insurance company does not pay you the benefit and later on at a hearing referred to as an Arbitration held at the Financial Services Commission of Ontario (FSCO) it is determined that you should have been paid the benefit there are certain interest consequences.
Specifically, section 46(1) of the accident benefits legislation (SABS) says that if a payment of a benefit is overdue, the insurer shall pay interest on the overdue amount for each day of the amount it is overdue from the date the amount became overdue at the rate of 2% per month.
However, FSCO and the courts have been looking at when interest should be payable i.e, after the Arbitrator's Decision or when the benefit was actually due. There are many decisions on this topic and also whether or not it matters that the insurance company was in receipt of a report that suggested the benefit was not payable.
Recently, the Ontario Court of Appeal upheld a lower court decision regarding interest on unpaid accident benefits. In Sorokin v. The Wawanesa Mutual the Plaintiff was successful in moving for Summary Judgment on unpaid interest that had accrued on the interest component of the Arbitrators award. The motion judge characterized interest as a "benefit" under section 46(2) of the SABS.
The motion judge also advocated for a, "broad and liberal interpretation" of the SABS. Finally, he stated that to hold otherwise, would allow insurance companies to withhold payments without consequences. The Decision was upheld at Ontario's Court of Appeal where the court held that the policy intent of section 46 was compensatory.
Additional cases that deal with interest as per the SABs are:
- Attavar v. Allstate Insurance Co. of Canada., [2003 O.J. No. 213,
- McMahon Urquhart v Zurich Insurance Company of Canada [1988] O.I.D.D. No. 34
- Abulibdeh v. RBC General Insurance Co. [2007] O.F.S.C.D. No. 138
- Mercier v. Royal & SunAlliance Insurance Co. of Canada [2004] O.J. No. 3264
- Neumeyer v. Wawanesa Mutual Insurance Co. [2005] O.J. No. 4004
- Monks v. ING Insurance Co. of Canada [2005] O.J. No. 3753
- Hejnowicz v. Coachman Insurance Co.[2006] O.F.S.C.D. No. 130