Category: Insurance


Economical Mutual v Caughy: The Meaning of “Accident” in the Insurance Context

Economical Mutual Insurance Company v Caughy, 2016 ONCA 226 [Caughy] is the latest decision in the ongoing conflict between the prerogative of automobile accident insurers to deny coverage when faced with ambiguity over statutory definitions, on the one hand, and the need to uphold coverage where ambiguous cases are coupled with serious debilitating injuries. In Caughy, the Ontario Court of Appeal (“ONCA”) was tasked with reviewing the application judge’s decision to uphold coverage for a claimant with serious spinal cord injuries. The insurer in this case, Economical Mutual Insurance Company (“Economical”) challenged this on the grounds that the vehicle in...


Gyorffy v Drury: Big Win or Big Chill for Plaintiffs?

Writing for the Ontario Court of Appeal (“ONCA”) in Gyorffy v Drury, 2015 ONCA 31, Justice Laskin upheld an award of non-pecuniary damages for injuries arising from a motor vehicle accident (“MVA”). The case hinged upon whether the Plaintiff was permitted to corroborate his own physician’s evidence on his changed functioning after the accident. At trial, it was determined that the Insurance Act, RSO 1990, c I.8 (“the Act”), required the Plaintiff to meet an onerous standard of proof such that the Plaintiff could not corroborate his own physician’s evidence. Accordingly,  the trial judge found that the Plaintiff had not met the evidentiary threshold set out in...


Matheson v Lewis: Farm ATVs Require Insurance

The recent Ontario Court of Appeal (“ONCA”) decision in Matheson v Lewis, 2014 ONCA 542 [Matheson], held that an unmodified all-terrain vehicle (“ATV”) owned by a farmer and used in farm operations does not fall within the Highway Traffic Act, RSO 1990, c H.8 (“HTA”) exception for “self-propelled implement of husbandry”, and must be insured while on a public roadway. In doing so, the ONCA creates narrow and somewhat unrealistic restrictions on the definition of farm vehicles.


Kozel v The Personal Insurance Company: Failure to Renew a Driver’s License, a Car Crash, and Relief from Forfeiture

In Kozel v The Personal Insurance Company, 2014 ONCA 130 [Kozel], a decision released on February 19, 2014, the Ontario Court of Appeal considered the scope of relief from forfeiture pursuant to section 98 of the Courts of Justice Act, RSO 1990, c C.43 [CJA], in the context of an automobile insurance claim.


Westmount (City) v Rossy: Faulting Quebec’s No-Fault Insurance Law

As the proverb goes, when a tree falls in the forest, and no one is there to hear it, did it happen at all? When a tree hits a man while he is driving, and Quebec has a no-fault insurance law, then does that mean that, for civil liability purposes, it did not happen at all? This was the main issue in the case of Westmount (City) v Rossy, [2012] 2 SCR 136 [Westmount (City) v Rossy], which was decided by the Supreme Court of Canada (“SCC”) at the end of June. In a unanimous decision, the Court held that the...


The Ontario Court of Appeal Grants Amputee up to $1M of Benefit: Kusnierz v Economical Mutual Insurance Company

On Christmas Eve in 2001, a car crash left Robert Kusnierz with numerous injuries, the most serious of which required the amputation of his left leg below the knee. Kusnierz sues his insurer, Economical Mutual Insurance Company, for a declaration that he sustained a “catastrophic impairment” under clause 2(1.1)(f) of the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O.Reg. 403/96 (“SABS”). The legal threshold of “catastrophic impairment” under cl. 2(1.1)(f) of the SABS is to have at least 55% impairment of the whole body. If Kusnierz establishes “catastrophic impairment”, Economical Mutual must pay for medical and...


Gibbens v Co-operators Life Insurance Company: “Accident” Insurance and Injuries Resulting from Unprotected Sex

Today, the Supreme Court of Canada (“SCC”) will release judgment in Gibbens v Co-operators Life Insurance Company, 2008 BCCA 153, an interesting case hinging on the proper interpretation of an insurance policy. I concede that issues surrounding insurance law may not seem terribly interesting at first rub, but the respondent’s extraordinary circumstances give rise to a number of unique, pressing, and readily accessible legal questions.


SCC Allows Proceedings in Multiple Jurisdictions, Leaves Problem of Multiple Judgments

Last Friday, the Supreme Court of Canada (“SCC”) delivered their decision in Teck Cominco Metals v Lloyd’s Underwriter’s, 2009 SCC 11. The private international law decision dealt with Teck Cominco’s attempt to have proceedings in British Columbia stayed because of an assertion of jurisdiction over the same matter in a U.S. Court. In a unanimous decision penned by McLachlin C.J., the SCC made it clear that comity should not act as the sole determinant of jurisdiction. Instead, a holistic test taking into account all the factors in s. 11 of the Court Jurisdiction and Proceedings Transfer Act, SBC 2003, c 28...


CN Rail v Royal and Sun Alliance: Faulty Insurance Not Faulty Design

On Friday November 21, 2008 the Supreme Court of Canada (“SCC”) released its 4-3 judgment awarding the appellants $30 million in Canadian National Railway Co v Royal and Sun Alliance Insurance Co of Canada, [2008] 3 SCR 453. This case involved a 14-year dispute between Canadian National Railway Co. (“CNR”) and its group of property insurers including Royal and Sun Alliance Insurance Company of Canada and Axa Assurances Inc. (“Insurers”). The central question in the case was which party was liable for costs related to a damaged tunnel boring machine under an all-risk insurance policy. The Ontario Court of Appeal...