The Superior Court has confirmed that a vehicle owner is vicariously liable for the negligence of another driver under the Highway Traffic Act, even if the owner consents only to the possession of the vehicle, and not its operation on the highway. In Fernandes v. Araujo et al., the owner’s insurer brought a motion for summary judgment stating that the owner was not vicariously liable for the driver’s negligence as the owner had not given permission to the driver to operate the vehicle, an ATV located on the owner’s farm, on the highway, as the driver only had a G1 license and was not licensed to use the ATV on a highway. The insurer attempted to rely on the similar decision of Newman v. Terdik, where the owner was not found to have given consent as he had expressly forbidden the driver from taking the vehicle off his farm and … Read More
Why the new s. 258.3(8.1) of the Insurance Act will retroactively scale back prejudgment interest rates in MVA actions
This week, the new provision in the Ontario Insurance Act, s. 258.3(8.1) received Royal Assent. When the provision is proclaimed by Order-in-Council,* it will abolish the 5% rate of prejudgment interest (PJI) on non-pecuniary damages for automobile claims. The new subsection says: “Subsection 128 (2) of the Courts of Justice Act does not apply in respect of the calculation of prejudgment interest for damages for non-pecuniary loss in an action referred to in subsection (8) [actions in tort arising from motor vehicle accidents].” Given the eagerness of the Ontario government to send a signal to the insurance industry, we should expect this provision to be proclaimed before long, perhaps as early as the beginning of 2015. In my view, the transfer of non-pecuniary damages, the label for general damages for pain and suffering, and related loss of amenities, to the general calculation formula for PJI, will have a significant effect on damage awards, … Read More
Insurance Fraud: See No Evil & Pay The Piper
With Thompson’s World Insurance News reporting (May 5, 2014) that Aviva detected over C$202.84m in insurance fraud in 2013–a 19% increase over 2012–over 45 claims a day (C$553,370) it is clear that one of the world’s oldest professions must be taken increasingly seriously by insurance claims executives. Fraudsters have historically viewed insurance fraud as a relatively low risk way of building a career in criminality. Fearful of investigation and defense costs, and of punitive damages verdicts where a defense does not succeed, many insurers have often paid claims they believe to be fraudulent. It is hard to scope out the true cost of fraud unless adequate resources are devoted to the task: you don’t find what you do not actively and aggressively pursue. With Insurance Bureau of Canada estimates of insurance fraud in Canada north of $500 million a year, the cost of inaction is clear. Cost/Benefit analyses solely focused on a case by … Read More
Mixed Results in Summary Judgment Motion in Parking Lot Slip and Fall Case
In Wiseman v. Carleton Place Oil Inc., 2014 ONSC 1987, the Ontario Superior Court of Justice addressed the summary judgment motion brought by the two remaining Defendants in a case involving a slip and fall in a Tim Hortons parking lot. The Plaintiff alleged that she broke her wrist when she slipped and fell on accumulated snow along the curb of the drive-through lane. The owner of the parking lot took the position that they had satisfied their duty of care by contracting out for snow removal on the premises. The snow removal contractor argued that they had performed all their contractual obligations on the day of the incident. After summarizing the law on summary judgment as set out by Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, Justice Pedlar held that there were genuine issues requiring a trial in respect to whether the owner was negligent in designing a parking lot that required customers to step over the drive-through curbing to … Read More
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