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About Articles The following articles are published by the Insurance Law Section of the Ontario Bar Association. Members are encouraged to submit articles. About Articles

Editors: Sudevi Mukherjee‐Gothi and Tracey Hamilton

Today
Today
Case Comment: <em>158444 Ontario Ltd. v. State Farm Fire and Casualty Company</em>

Case Comment: 158444 Ontario Ltd. v. State Farm Fire and Casualty Company

  • February 08, 2017
  • Shane H. Katz

This case serves as a reminder to all litigants that any allegations that have the potential to be proven must be pled at the outset to ensure that proper discovery is conducted and to avoid the need to explain away delays during motions to amend pleadings. The case can also be used as a leading case in Ontario regarding the evidentiary requirements for actual and presumed prejudice during motions to amend pleadings as a result of Justice Hourigan’s thorough reasons.

Deducting Sick Days in Personal Injury Claims

Deducting Sick Days in Personal Injury Claims

  • January 30, 2017
  • Christopher Martyr

The deductibility of the value of sick days is a question that many lawyers have to confront in various personal injury matters. While some counsel believe sick days are deductible, others believe that it depends on the type of loss. This article discusses the varied arguments and law surrounding the deductibility of sick days.

Insurance Law
Ethics and Civility in the Courtroom and Beyond

Ethics and Civility in the Courtroom and Beyond

  • January 30, 2017
  • Jessa Marie Conmigo and Silvio Vallati

This article discusses the OBA's CPD program on Ethics and Civility featuring speakers Joseph Groia, W.A. Derry Millar, Justice Michael Tulloch, Prof. Constance Backhouse, Prof. David Lepofsky, William S. Chalmer, Alfred Kwinter, and Ian Hu. The speakers tackled contentious issues on civility and professionalism facing litigators.

Insurance Law
The Decision in <em>Anjum v. Doe</em>: What summary judgment motions may look like post <em>Hryniak</em>

The Decision in Anjum v. Doe: What summary judgment motions may look like post Hryniak

  • January 30, 2017
  • Jim Davidson

Since the Supreme Court decision in Hryniak v Maulden, a number of summary judgment motions have come before the courts. However, the recent decision in Anjum v Doe (2016 ONSC 7784) is one of the few decisions that truly follows the Hryniak process as envisioned by Justice Karakatsanis in her ground breaking decision. Jim discusses whether the Anjum decision fulfilled the Hryniak promise to alleviate protracted cost and delay associated with civil trials in Canada.

Insurance Law

Interest in Delayed CAT Benefits

  • December 14, 2016
  • Lisa Pool

The issue before Court of Appeal is when interest starts to accrue under the SABS in situations where there is a disputed CAT designation. Benefits were paid until the 104-week mark and then terminated based on the fact that the claimant was not catastrophically impaired. The Court deferred to a finding of fact that the applications court Judge made - that the claimant had been catastrophically impaired since the accident.

Insurance Law
<em>Aviva Insurance Company v. McKeown</em>: Specific Reasons Required for EUOs

Aviva Insurance Company v. McKeown: Specific Reasons Required for EUOs

  • December 02, 2016
  • Sheryl Patel

This case examines the requirement to compel a person to attend an Examination Under Oath, pursuant to section 33(2) of the SABS. Justice Matheson indicates that a "reason" must be disclosed before it can proceed with an examination and that it must be a "meaningful" reason. There seems, however, to be little guidance as to what these are...

The Election Requirement When NEB and IRB are at Issue

The Election Requirement When NEB and IRB are at Issue

  • November 03, 2016
  • Shane H. Katz

This particular LAT decision suggests that if applicants do not medically qualify for an IRB, they can still apply for NEB, if not given the option to elect, thus requiring insurers to send out election forms for every claim where IRB may be payable to preclude applicants from claiming both NEB and IRB.

Insurance Law
<em>Lexfund v Ferro et al</em>: Litigation lender found in breach of Consumer Protection Act; recovers simple interest at reduced rate instead of compound interest

Lexfund v Ferro et al: Litigation lender found in breach of Consumer Protection Act; recovers simple interest at reduced rate instead of compound interest

  • October 18, 2016
  • Bevin Shores

Counsel who act in matters that may be funded by litigation loans will want to be aware of the June 22, 2016 decision of Justice Sloan in this case, in which a litigation lender was found to have breached the Consumer Protection Act, and accordingly was only permitted to recover 5% per annum simple interest, as opposed to the 19.5% to 24% interest compounded monthly that had been set forth in the lending agreements.

Insurance Law
<em>A.P. v. Aviva Canada</em>: To Infer or Not to Infer MIG?

A.P. v. Aviva Canada: To Infer or Not to Infer MIG?

  • October 03, 2016
  • Sheryl Patel

This decision highlights the importance of lawyers reviewing the medical records and the medical-legal reports generated during the Applicant’s file, and whether these documents are clear as to why the Applicant is either within or outside the Minor Injury Guideline (MIG). The adjudicator decided that the LAT will not infer information that is not clearly expressed in the medical evidence especially when compelling evidence is required to be discharged from the MIG.

Insurance Law