Contracting out of the Insurance Act

Section 263 of the Insurance Act provides that in cases of property damages involving two insured automobiles, the insured is entitled to recover from his or her own insurer.

A recent appeal decision held that although s. 263 precludes tort claims, it permits claims based in contract.

In Hafeez v. Sunaric, 2015 ONSC 4065 (S.C.J.), after a collision in a parking lot, the defendant agreed to pay the plaintiff $15,000 "minus insurance payment".  The vehicle was appraised at $13,500.  The plaintiff was paid $6,500 by his insurer and sought to recover the rest from the defendant pursuant to their contract.  The Small Claims Court judge held the agreement was unenforceable due to s. 263.  The plaintiff appealed.

Justice Perrell allowed the appeal.  The property loss compensation scheme introduced by s. 263 precludes tort claims but does not preclude claims based in contract.

Insurer Must Pay for Repairs Associated With Building Code Upgrades

The importance of the wording of exclusion clauses can be seen in Choukair v. Allstate, 2015 ONSC 4989 (S.C.J.).

The Applicant, Choukair, had a Homeowner’s Policy with the respondent, Allstate. On January 20, 2014 there was a total loss fire at Choukair’s residence. As a result, the house had to be rebuilt. Choukair stated that his replacement cost was $450,700.00, plus taxes. Allstate paid Choukair $369,000.00 but refused to pay the balance.

The difference between what Choukair claimed and what Allstate paid related to the increased cost of the rebuild associated with upgrades required as a result of the Building Code, which Allstate stated were excluded by the Insurance Policy.

There was an exclusion clause in the Policy which stated the following:

We do not insure: (5) losses or increased costs of repair or cost of improving or upgrading dwellings or structures due to the operation of any by-law regulating the zoning, demolition, repair or construction of buildings and their related services;

Justice Quigley held that the loss did not result from the operation of a by-law. The increased costs were related to the application of the Building Code, which is categorized as a law and not a by-law.

Allstate therefore had to pay the balance related to increased costs associated with the Building Code upgrades.

Insurers may want to consider the wording of their exclusion clauses as a result.

The New Deductibles Under the Insurance Act

The Insurance Act and its regulations have been amended to increase the amount of the deductibles.  As of August 1, 2015, the deductible for non-pecuniary damages is $36,540 (up from $30,000) and for Family Law Act damages it is $18,270 (up from $15,000).  In addition the $100,000 threshold above which the deductible applies has been raised to $121,799 and the $50,000 threshold for Family Law Act damages to $60,899.  The deductibles will be indexed for inflation on January 1st of each year beginning in 2016.

In addition, s. 267.5(9) has been amended to provide that costs are to be determined "with regard" to the effect of the deductible, i.e. costs are now net of the deductible.

Statutory Third Party Must Answer Questions About Denial of Coverage

A recent decision requires a statutory third party to answer questions about why it denied coverage to its insured.  In Lica v. Dhaliwal, 2015 ONSC 3888 (S.C.J.), State Farm denied coverage and added itself as a statutory third party.  The plaintiff asked questions by written interrogatory requesting details as to why the insurer denied coverage.  State Farm refused to answer and the plaintiff brought a motion, arguing he needed the information in order for him to claim underinsurance coverage from his own insurer under the OPCF 44R and to permit his insurer to assess its potential liability.  State Farm argued that the main action was not the proper forum to decide coverage issues so the questions were improper.

Justice Price ordered State Farm to provide details of the denial of coverage.  A court requires the information to determine whether State Farm's allegation the insured breached the conditions of his policy are borne out by the evidence.  If the denial was justified, the plaintiff would have access to the coverage provided by his OPCF 44R endorsement.  Justice Price held that where coverage has been denied, the court should determine whether an insurer must disclose the information and documents relating to its decision on a case by case basis, having regard to whether the documents are relevant, whether their disclosure would cause prejudice, whether they are protected by litigation privilege and whether that privilege, if it exists, has been waived.

Statutory Third Parties will have to carefully consider what must be disclosed as a result of the Lica decision.

No Duty to Defend Parents of Alleged Bully

The Court of Appeal has held that an insurer does not have a duty to defend its insureds with respect to claims that they failed to prevent bullying.

In Unifund v. D.E., 2015 ONCA 423 (C.A.), the insurer refused to defend parents of an alleged bully.  In the underlying action, the plaintiff alleged that the parents' daughter had bullied her at school.  The allegations against the parents were that they knew or ought to have known about the bullying, and failed to investigate it, take steps to prevent it or take disciplinary action. The Unifund policy contained an exclusion which provided as follows:

We do not insure claims arising from:

6. bodily injury or property damage caused by an intentional or criminal act or failure to act by:

(a) any person insured by this policy; or

(b) any other person at the direction of any person insured by this policy;

7.(a) sexual, physical, psychological or emotional abuse, molestation or harassment, including corporal punishment by, at the direction of, or with the knowledge of any person insured by this policy; or

(b) failure of any person insured by this policy to take steps to prevent sexual, physical, psychological or emotional abuse, molestation or harassment or corporal punishment.

The application judge held that the exclusion was limited to an intentional failure to prevent physical abuse rather than negligence.  The Court of Appeal allowed the appeal.  Justice MacPherson held that by using the word "failure" in the exclusion clause, it extended to negligence.  Unifund had no duty to defend or indemnify its insureds in the underlying action.

Courts Have Inherent Jurisdiction to Order Assessments by Non-Health Practitioners

We previously posted on the Divisional Court's decision in Ziebenhaus v.Bahlieda (click here for our original post).  In that case, the Divisional Court held that courts have inherent jurisdiction to order a party to undergo an assessment by someone who is not a "health practitioner".  In Ziebenhaus, the particular assessor was a vocational assessor.

The Court of Appeal has now confirmed the Divisional Court's decision at 2015 ONCA 471 (C.A.).
It held:

[13]      The language of s. 105 and Rule 33 does not constitute such clear and precise language. The language of these provisions is permissive, and they do not state that a court cannot order an examination by someone who is not a “health practitioner”. Moreover, the conclusion that a superior court judge has the inherent jurisdiction to order such an examination does not conflict with the relief available under s. 105, nor should it be seen as extending the reach of that section. Inherent jurisdiction should be exercised only sparingly and in clear cases, when the moving party demonstrates that it is necessary to ensure justice and fairness.

Ziebenhaus may make it easier to obtain orders compelling plaintiffs to attend independent medical examinations with non-medical practitioners; however, it will still be important to have good supporting materials to show the assessments are necessary to ensure justice and fairness.

Admissibility of Expert Evidence

The Supreme Court of Canada recently commented on the standards for admissibility of expert evidence.  Although the case originated out of Nova Scotia, it is equally applicable to Ontario and should be taken into account when retaining experts. 

In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 S.C.C. 23,  shareholders started an action against the company's former auditors after a different accounting firm (Grant Thornton) identified problems with the former auditors' work.  In response to the defendant's summary judgment motion, the plaintiffs hired a forensic accountant from Grant Thornton to prepare an opinion.  The motions judge struck out the forensic accountant's affidavit on the basis that she was not an impartial witness; the Court of Appeal allowed the appeal.

The Supreme Court of Canada dismissed the appeal.

The inquiry for determining the admissibility of expert evidence is divided into two steps.  First, the proponent of the evidence must establish the threshold requirements for admissibility (found in R. v. Mohan): relevance, necessity, absence of an exclusionary rule and a properly qualified expert.  Second, the judge must exercise a gatekeeper function and balance the potential risks and benefits of admitting the evidence to determine whether the potential benefits outweigh the risks. Concerns about an expert's independence or impartiality should be considered as part of the overall weighing of the costs and benefits of admitting the evidence.

Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. Underlying the duty are three concepts: impartiality, independence and absence of bias.  The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand.  It must be independent in that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation.  It must be unbiased in that it does not unfairly favour one party's position over another.

A proposed expert's independence and impartiality goes to admissibility and not simply to weight, and there is a threshold admissibility requirement in relation to this duty.  Once the threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis the judge conducts to carry out the gatekeeping role.

In the circumstances, the evidence should not have been excluded as there was no basis to conclude the expert was not able and willing to provide the court with fair, objective and non-partisan evidence.