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1 Atlantic Insurance Counsel LEGAL DEVELOPMENTS OF INTEREST TO BUSINESS IN ATLANTIC CANADA Summer 2011 Editor: The NL Automobile Insurance Act and Advance Payments to Third Parties In 2004, a series of amendments were made to the NL Automobile Insurance Act which included provisions that were generally thought to provide the express authority to the NL Supreme Court to make an order for interim advance payments in certain cases. Section 26.2 of the Automobile Insurance Act provides as follows: Christopher Lewis In this issue The NL Automobile Insurance Act and Advance Payments to Third Parties Delay in Personal Injury Litigation: The View of NL Courts NL Court of Appeal Addresses the Discoverability Rule for Limitation Periods PEI Court of Appeal Upholds Motions Judge s Application of Law on Motion to Strike Jury Notice The Effect of a Deceased s Own Negligence on Claims By Family Members Section D Pitfalls Evaluating and Responding to Plaintiffs Medical Evidence Court of Appeal Overturns Jury in Pedestrian MVA I Was Working, I Swear : - Unreported Income and Claims for Lost Income in Atlantic Canada Section 26.3 of the Automobile Insurance Act further states that: Eligibility in New Brunswick : Document Production and Disclosure 1 in the Facebook Era Competitive Intelligence NBQB 16G SEF 44 Endorsement and Deductibility of Past Brunswick

2 In the years since the passage of those amendments, a body of case law developed which largely assumed, without authority to the Supreme Court to make an order for interim advance payments to injured third parties arising out of a motor vehicle accident [see: (2005), 249 (2008), (2008), the Supreme Court accepted that Section 26.2 of the Automobile Insurance Act granted the Court the authority to make an interim advance payment order in favour of third party claimants in appropriate circumstances. However, in a recent decision from the Newfoundland and Labrador Supreme Court, Trial Division, (2010), the Court held that Section 26.2 does not confer jurisdiction on the Court to order an insurer to make an interim advance payment to a third party claimant for either general damages or special damages. The court indicated that section 26.2 is only applicable to claimants who are emphasized the language used in the section which states to whom compensation is payable under a contract evidenced by a motor vehicle liability policy. The court held that the intent of Section 26.2 was to grant jurisdiction insured (i.e. pursuant to a Section B policy or Section D policy), but that it did not provide any assistance to a third party claimant in obtaining an interim advance payment. The court also reviewed Section 26.3 of the Automobile That provision sets out various requirements for an automobile insurer defending a claim being made by a third party claimant for bodily injury. Generally, the section provides that the automobile insurer must: attempt to settle the claim as expeditiously as possible. Where liability is not being contested, the insurer must make payments to the person making the claim pending the determination of the amount owing. The amount of any such payments are to be based on the insurer s estimate of the amount owing having regard to the information provided to the insurer by the claimant. The Court also stated that the provisions of Section 26.3 do payment before trial and that in light of the provision which states that any interim payments are to be based upon the insurer s estimate of the damages, the provisions do not amount of the payment required to be made by the insurer. Nevertheless, the Court did state that Section 26.3 does impose several obligations upon automobile insurers who are defending a claim made by a third party claimant, including: 1. The insurer must make a good faith assessment of their liability position. The insurer will not be able to avoid the requirements of this section simply by unreasonably 2. If liability is not in issue, the insurer is obligated to make a good faith estimate of the damages payable in light of the information provided by the third party claimant and and, 3. Failure by the insurer to carry out those obligations may result in an adverse costs award against the insurer. It is interesting to note that the Court has introduced the concept of good faith dealings between automobile insurers and the third party claimants, who are traditionally adverse parties. 2

3 The Court went on to state that while it does not have party claimants pursuant to the Automobile Insurance Act, it does have the authority to order the insurer to carry out its obligations under Section An insurer must, in good payments as expeditiously as possible. Indeed, the Court did make such an Order in this case. What This Means for Insurers While the Court in the Wade case held that the provisions of the Automobile Insurance Act do not confer jurisdiction on the Court to make an order for an interim advance payment in favour of third party claimants, that does not mean insurers can simply sit back and do nothing. The Court duty upon insurers to make an informed assessment of both liability and damages, and where liability is not a matter in issue, the insurers have a duty to make a good faith estimate of damages and pay that amount to the claimant as expeditiously as possible. Failure to comply with those obligations may result in an award of costs (possibly on a scale greater than party and party) against the insurer. Additionally, as was the result in the Wade case, the Court may in some circumstances order the insurer to carry out its obligations imposed by section It should also be noted that there is another mechanism available in NL with which to obtain interim payments: Rule 44A of the. That rule, however, is limited to interim payment of special damages only (loss of income, medical expenses, etc.). Robert Dillon Delay in Personal Injury Litigation: The View of NL Courts The recent Supreme Court of NL decision (2011) is representative of a series of recent cases from this jurisdiction where the Court has considered the reinstatement of actions which had been previously dismissed for delay. On December 13, 2010, the Plaintiff applied for reinstatement of her action against the First Defendant, ten months after the First Defendant obtained an Order dismissing the claim (February 1, 2010). The First Defendant had previously (on December 1, 2009) obtained an order from the Court applications were served on Plaintiff s counsel, neither the Plaintiff herself nor her counsel responded to the applications or attended Court to be heard. The Plaintiff applied for reinstatement pursuant to Rule of the NL,, which provides: 3

4 when the order granted on the application comes to The Plaintiff argued that although her solicitor became aware of the order dismissing her claim on February 8 or 9, 2010, the Plaintiff herself only received notice of the order on December 5, 2010 (nearly 10 months later). As such, the Plaintiff asserted that the application to reinstate the ten-day time limit. Justice Leblanc disagreed with the Plaintiff s interpretation of the notice provisions, and found that knowledge on the part of Plaintiff s counsel must be imputed to the Plaintiff. Consequently, Justice Leblanc held that the application for reinstatement had not been made within the time limit set out in Rule 29.11(2). Justice Leblanc went on to consider whether it would be appropriate to extend the ten-day timeframe. Rule 3.03(1) and (2) of the state as follows with respect to time extensions: or abridge the period within which a person is required or Justice Leblanc found that taking into account the full circumstances of the case and the delay itself, it was in application for reinstatement. He held that a lengthy delay exercising its discretion to extend the deadline. Ultimately, the Plaintiff was permitted to have her application dealt with on the merits, notwithstanding the ten-month delay. This decision includes Justice Leblanc s consideration of another aspect of rule 29.11(2), which permits a Court to set aside or vary an order made where a party fails to appear on an application through accident, mistake, determined that the reason the Plaintiff failed to appear on the application was for other just cause, which he found to be the result of technical problems with the Plaintiff s solicitor s fax machine, which was further complicated by the fact he was a sole practitioner who employed no administrative assistant (and as such was administratively overwhelmed). It was also noted that the Plaintiff s solicitor had been injured in two motor vehicle accidents, resulting in a reduced work schedule. the Plaintiff s failure to respond to the two applications, and attributed the Plaintiff s non-responsiveness not to negligence or lack of interest, but to factors beyond the control of the Plaintiff or her counsel. Justice Leblanc also noted that the potential opportunity for success as against the First Defendant and the lack of prejudice in the event of a reinstatement of the claim were important considerations. It delay in bringing the application and that the delay of ten months was neither explained nor necessary, it was in the interests of justice to grant the Plaintiff s application for a reinstatement of the claim. Although this decision allowed the Plaintiff to reinstate be interpreted as providing an authority for claimants to of the Supreme Court of NL could be reasonably interpreted to contradict, as they clearly encourage the timely progression of matters before the Court. 1 1 The Court may, on such terms as it thinks just, extend or abridge the period within which a person is required or authorized by these rules, or by any order, to do or abstain from doing any act in a proceeding. 4

5 Jennifer Lundrigan period has been postponed or suspended under NL Court of Appeal Addresses the Discoverability Rule for Limitation Periods In Morgan v Rogers (2011), the Respondent was involved in a motor vehicle accident on February 26, 2005, wherein Claim on February 27, 2007, one day outside the two year limitation period. The issue on appeal was whether she could rely on sections 14 or 15 of the (the Act ) to allow the otherwise time-barred claim. Section 14 of the Act provides: With respect to s. 14, the Court found that there was no evidence of any later event that led Mrs. Rogers to discover any material fact related to her cause of action after February 26, Under s. 14, the discoverability rule functions such that the limitation period begins when the plaintiff knows, or ought to reasonably know, that he or she has a cause of action. The Court of Appeal overturned the Application Judge s ruling that the Plaintiff could avail of this rule. Section 15 of the allows the limitation period to be extended where a plaintiff is suffering from a disability that renders him or her incapable of managing their affairs due to a mental or physical condition. It provides: where, at the time the right to bring an action arises, a respect to a limitation period under this Act is postponed so long as that person is under a under subsection (1) and that person ceases to be 5

6 The Court of Appeal determined that the Plaintiff could not extend the limitation period under that section of the Act as there was no evidence that her injuries resulted in a her day to day affairs. While she suffered from pain, nausea, and dizziness immediately following the accident, she was still able to give a statement to the police. Therefore, she was not considered to be disabled within the meaning of s. 15. Meaghan Beresford Summer Student PEI Court of Appeal Upholds Motions Judge s Application of Law on Motion to Strike Jury Notice The PEI Court of Appeal in McInnis (2011) upheld the decision of Justice Mitchell to allow a motion to strike the jury notice in a case where the Plaintiff wanted to have the matter decided by a judge and jury. The matter before the Court in this case arose out of two separate actions that were consolidated in Procedurally, it involved three claims: i) an action action commenced by Metro Credit Union Ltd. against the Metro Credit Union Ltd. The matter was scheduled for trial before a Supreme Court Judge and Jury on January 17, Justice Mitchell s decision to strike the jury notice was based on the high probability that the jury would make a mistake given the complex legal issues at play. two lawyers sought leave to bring a motion to strike the jury notice. Leave was required as the matter had been set down on the Trial List and the parties were therefore any further interlocutory proceedings. A party seeking leave must demonstrate a substantial or unexpected change in circumstances such that it would be manifestly unjust to prevent the resumption of interlocutory proceedings. However, this test is less rigorous when a substantive right, such as a right to a jury trial, is affected. Justice Mitchell considered the relative prejudice to each party and concluded that even if the underlying motion to strike was successful no further delay would be required since all parties were deemed ready to proceed to trial on January 17, Accordingly, he granted the leave to bring the motion to strike the jury notice. The appeal of Justice Mitchell s decision on this point was dismissed. In a unanimous decision, the Court of Appeal found that the proper legal principles had been applied and that discretion had been exercised judiciously. As a result, the Court of Appeal found that it had no jurisdiction to interfere with the decision. Justice Mitchell noted in his reasons that the right to a jury trial in a civil case is a substantive right that should not be circumvented without just cause or cogent reasons. Therefore, a party moving to strike the jury notice must establish that the legal and factual issues are so complex that justice to all parties would be better served if the proceeding was heard without a jury. The Appellant argued that the complexity of a case could not be properly determined until the parties began to introduce evidence at trial. Accordingly, the Appellant submitted that a wait and see approach should be employed to allow the matter to continue as a jury trial. In the Appellant s submission, if and when the evidence demonstrated that the matter had reached a level of complexity such that it could not 6

7 appropriately be considered by a jury, the trial judge would then have the discretion to take the case away from the jury after the commencement of the trial. Justice Mitchell concluded that the wait and see approach would be unfair to the parties and the individuals chosen as jurors because the procedural complexities would had been submitted in support of, and opposition to, the motion. Additionally, a list of proposed questions the parties intended on asking the trial judge to place before the jury was in evidence on the motion before Justice Mitchell. The questions were extensive and complex. The complicated pleadings between the multiple parties together with the nature of the questions in evidence on the motion allowed Justice Mitchell to conclude that even with an adequate instruction from the trial judge, there was a strong probability that justice to all parties would not be served by having this consolidated proceeding tried by a judge sitting with a jury. In a unanimous decision, the PEI Court of Appeal upheld Justice Mitchell s exercise of discretion and application of appropriate legal principles. The Court of Appeal did note that there is some merit to the approach advocated by the Appellant, but stated that the wait and see approach was not a rule of law. Because there had been no error of law, the Court of Appeal found that it did not have jurisdiction to intervene in the decision of Justice Mitchell. Scott Barry The Effect of a Deceased s Own Negligence on Claims By Family Members Stewart McKelvey lawyers Tracey L. Clements, Q.C. recently represented the Defendant in Estate (2010). The decision squarely decides that a family member is not entitled to recover relational economic loss or damages for loss of care, guidance and companionship where the death of another family member is caused by the negligence of the deceased. The decision is currently under appeal. The Plaintiff was a passenger in a vehicle driven by her husband when he negligently failed to obey a stop sign. The Plaintiff s vehicle collided with another, resulting in the death of the Plaintiff s husband and personal injuries to herself. She commenced an action against her husband s estate claiming, among other things, general damages for loss of care, guidance and companionship, and pecuniary and economic losses including the loss of her husband s 21.01(b) of the PEI Rules of Civil Procedure to strike out those portions of the Amended Statement of Claim relating to the Plaintiff s claim for economic losses and damages for loss of care, guidance and companionship of her husband. The Defendant argued it was plain and obvious that the Plaintiff could not recover the damages sought on the basis that her husband s death resulted from his own negligence. The Defendant relied primarily on the wording of the PEI Fatal Accidents Act (the Act ). 7

8 Common Law Principles of Negligence The Plaintiff did not plead the Act, but instead relied on the common law principles of negligence, including her alleged common law right to sue for loss of care, guidance and companionship as a result of the negligent death of her husband. It was the Plaintiff s position that the normal rules of negligence regarding liability and damages ought to apply and should not be applied differently because she happened to be married to the negligent driver at the time of the accident. The Plaintiff relied on the decision of the Supreme Court of Canada in (1998) as reforming the common law to allow claims for loss of care, guidance and companionship by dependants of persons who are killed or injured by negligence. However, the Court distinguished Ordon on several grounds and found there was no common law duty for a person to take care for his or her own safety. In so doing, the Court considered the policy concerns that arise from allowing compensation for injuries which a the impact on self-determination and liberty of the individual on normal familial relationships. Relying on the rules of statutory interpretation, the Court found the Legislature clearly intended that the deceased and the wrongdoer would be separate persons - the same meaning could not be assigned to different words. In so means a failure to exercise reasonable skill or care toward the deceased. The use of the word toward contemplates a failure by a person, other than the deceased, which causes the deceased s death. The Court also drew the logical conclusion that where the deceased was solely responsible for his or her own death, any damages that would otherwise be awarded under the Act would be reduced to zero by virtue of the contributory negligence provision found in section 8(3). On the application of the Act to situations where the deceased has caused his or her own death, the Court stated unequivocally: The Court ultimately found there was no common law duty for one to refrain from negligently causing his or her own death, and there was likewise no common law right to recover for loss of care, guidance and companionship caused by the negligence of the deceased. Statutory Interpretation of the PEI Fatal Accidents Act Having decided the application of the common law of negligence, the Court considered the statutory interpretation of the Act, and, in particular section 2(1) which provides: It was contemplated that the deceased and the Findings of General Application application to fatal accident claims in PEI. First, there is no common law or statutory duty for one to refrain from negligently causing his or her own death. Second, the Act does not extend to situations where the 8

9 deceased s negligence causes his or her own death, as any such extension of the Act must be made by the Legislature rather than the courts. Finally, the above principles will apply even if the claimant has suffered physical injuries due to the negligence of the deceased. The Plaintiff s appeal is scheduled to be heard on June 1, Nicole M. McKenna Section D Pitfalls The decision of the NS Supreme Court in (2010) illustrates some of the problems that can arise when subrogating for damages paid out on a Section D claim. The Facts Faulds involved a relatively minor motor vehicle accident. The parties (Faulds and the third party O Connor) exchanged insurance information and went on their separate ways. Faulds reported the accident to her insurer, shoulder injury sustained in the accident. However, things were not quite as simple as they had initially appeared. O Connor was driving a vehicle owned by a third party in Florida. He thought the vehicle was insured, but it was discovered through The Dominion s investigation that the insurance on the vehicle had been cancelled prior to the accident. When contacted by The Dominion, O Connor accepted liability for the accident and proposed paying for damages out of pocket. There was no discussion as to whether O Connor was insured under any other insurance policy. The Dominion opened a Section D claim and paid Faulds property damage. A subrogated action was brought against the defendant O Connor for recovery of funds paid for property damage and car rental. Pursuant to the Insurance Act, the subrogated action was brought in the name of the insured (Faulds). A default judgment was entered and O Connor personally paid the judgment. One would think that would end the issue, but this was not the case. Faulds settled the personal injury portion of her Section D claim with The Dominion. The settlement included general damages within the cap. Many months later, Faulds retained counsel. The Dominion agreed to treat the settlement already paid to her as an interim payment for an injury falling outside the cap, if supported by the medical evidence. Faulds then brought an action against O Connor and The Dominion for personal injuries sustained in the accident. At this point, it was discovered that, at the time of the accident, O Connor was insured under an automobile insurance policy issued to his common-law wife by Wawanesa. Wawanesa was added to the action. Faulds brought a motion to determine, in essence, which of the insurers was to respond to her claim. The short answer was neither. The Decision The Court determined that Faulds did not have a Section D claim, as O Connor was insured by the Wawanesa policy on the date of the accident. The Court also determined that Faulds action against O Connor was barred as being res judicata because of the subrogated claim brought by The Dominion to recover the property damage payout. While acknowledging that Faulds would suffer a detriment by not being able to advance her claim, the Court nevertheless found that the detriment suffered by O Connor would be greater. 9

10 The res judicata principle essentially holds that a Plaintiff must bring all of its claims arising from a cause of action in one court proceeding. A Plaintiff cannot bring their claims piecemeal over two or more separate actions. In other words, a Plaintiff cannot have two (or more) kicks at the can, action brought by Faulds insurer. The second kick was Faulds action. The court was not swayed by the fact that Faulds had no say in, or control over, the subrogated claim. Importantly, the Court s decision in this case focussed on can a second kick be taken, rather than on who was doing the kicking. What Does This Mean for Section D Insurers? There are two important lessons that can be drawn from this decision: First, claims handlers and adjusters dealing with potential Section D claims should always check to see if the third party uninsured driver has other auto insurance coverage. Ask the third party driver whether anyone else in their home owns a vehicle. If so, ask whether the vehicle is insured. Second, the damage caused by the negligence of a tortfeasor gives rise to one cause of action. Courts draw no distinction between subrogated claims and claims commenced and controlled by insured Plaintiffs in their own right. Therefore, subrogated actions must contain a claim for all damages arising from a cause of action (i.e. property damage and personal injury) even if the injury portion of the claim is not yet settled or determined. Karen Bennett-Clayton Evaluating and Responding to Plaintiffs Medical Evidence The Awalt v Blanchard (2011) decision not only represents the NS Supreme Court s most recent endorsement of Associate Chief Justice Smith s interpretation of the Old Cap, as set out in (2009), it also illustrates several important considerations adjusters and defence counsel should keep in mind when assessing and responding to medical evidence tendered on behalf of the plaintiff. Awalt involved a situation where a personal care worker sought damages arising in connection with a motor vehicle accident. The Defendant had backed his pickup truck into the front of the Plaintiff s sedan, which had been moving forward at the time. The hospital emergency room records described the Plaintiff s chief complaint as an injured left shoulder/neck and a diagnosis was provided for whiplash mild. The Plaintiff returned to work following a one week absence. It was the Plaintiff s evidence that shoulder pain arising from the accident limited her ability to care for herself, as well as her family, and limited her social and athletic activities. She should be noted that the Plaintiff had sustained a number of work-related injuries in the past) and the pain would increase with the number of days at work. She continued to manage her duties, however, with the aid of medication, hot packs, assistance from co-workers and workplace accommodation. The Plaintiff s symptoms worsened and further investigation of her left shoulder (more than 20 months post-accident), revealed rotator cuff tendonitis and distal clavicular arthritis. 10

11 Surgery was performed and although it was generally successful, the Plaintiff was off work in post-operative recovery for 8 months. At trial several physicians and specialists were called to give evidence. history. That said, the family physician s evidence and records were replete with left shoulder concerns post accident and to the present time. The orthopaedist who performed the Plaintiff s shoulder surgery authored reports which left the court with the clear the Plaintiff s injuries were consistent with the facts of the accident. He conceded on cross-examination however, that he had not been aware of the fact that the Plaintiff sustained a number of previous workplace injuries when he had initially authored his main report. I do not see any compelling evidence that suggests the accident caused, or exacerbated an injury to her left rotator cuff. Ultimately, the expert opined that the Plaintiff s shoulder injury had resulted from repetitive trauma. Although the expert s opinion was based on a paper review with no corresponding examination, Justice Coady found this did not represent an uncommon practice and did not adversely affect the strength of the expert s opinion. Justice Coady found as a fact that despite the evidence of the Plaintiff s physicians/experts, her shoulder condition was caused by degenerative changes that developed before and after the accident, and the Plaintiff had failed to prove, on the balance of probabilities, that she suffered anything other than a whiplash injury. The Plaintiff s whiplash was found to fall within the purview of the Cap, which Justice Coady interpreted in the same way Associate Chief Justice Smith interpreted and applied. A total award of $10,478 was granted for general damages, special damages and past loss of income. A second orthopaedist gave evidence that left the court was the only known factor that could affect [the Plaintiff s long term degeneration caused by the demands of [the Despite the reports and testimony of the foregoing experts, Justice Coady preferred the evidence of an independent medical expert retained by defence counsel to perform a paper review of the Plaintiff s entire medical and in the accident but in terms of her left shoulder tendinitis, What Does This Decision Tell Adjusters and Defence Counsel About Medical Evidence 1. This case highlights an instance where a judge declined to accept a family physician s opinion with respect to causation. While this is not necessarily remarkable, it reminds us that defence counsel should always maintain a healthy scepticism regarding the objectivity of records or testimony offered by a plaintiff s family physician. Although it may be widely known, it bears repeating that the Code of Ethics adopted by the College of Family Physicians of Canada requires family physicians to become an advocate for their patients: 11

12 2 2. This case acknowledges that a holistic paper review, which takes a plaintiff s entire medical and occupational history into account (where relevant), should not be given less weight simply because the reviewing physician or specialist may not have performed a corresponding physical/medical examination. 3. A physician s expert opinion will have added and perhaps determinative weight if other physicians have simply relied on a plaintiff to provide his or her own medical/occupational history on consultation, or have otherwise not been provided with, or failed to consider a plaintiff s entire medical/occupational history. It is imperative to provide independent experts with all relevant materials. It should be remembered that although initial medical disclosure may tend to favour a plaintiff s position, the attending physicians may not be seeing the bigger picture. That is why paper reviews and/or IME s are best conducted once all relevant disclosure is complete and up to date. Chad Horton Court of Appeal Overturns Jury in Pedestrian MVA In the recent case of School Board (2011), the NS Court of Appeal overturned a jury s dismissal of an infant pedestrian s claim against a bus driver. The matter arose out of an accident that took place on the afternoon of April 12, It was a warm and sunny day in Annapolis County. Around 3:30 p.m., the four-year-old Plaintiff was playing with his two older brothers outside their home located along Highway 201, near the village of Paradise. At the same time, the Defendant was driving his empty school bus along Highway 201, heading to the nearby high school. The posted speed limit was 80 km/h and the evidence was that the bus driver was not exceeding that limit. As the Defendant approached the Plaintiff s home, the Plaintiff ran onto the highway and into the path of the bus. Immediately upon seeing the Plaintiff, the Defendant braked but could not stop in time. The Plaintiff was struck and suffered serious injuries. After 36 days of what purportedly became the longest civil jury trial in NS history, the Jury found no negligence on the part of the bus driver. The Plaintiff appealed arguing that the Trial Judge had made a reversible error in his charge to the Jury. The Court of Appeal agreed and ordered a new trial. At Trial, the parties agreed, and the Trial Judge ruled, that the four-year-old child was too young to be contributorily negligent. The Court of Appeal held that when dealing with the Defendant driver s potential negligence, the Judge invited the Jury to consider the infant Plaintiff s responsibility to be that of an adult and this constituted a reversible error. 2 Refer to the College of Family Physicians of Canada website at For an instance where this issue arose in a reported decision, see 3793, at para

13 The Court of Appeal focused its decision on the Plaintiff s main ground of appeal, namely, that despite the Judge s responsible for the accident, the Judge invited the Jury to consider the Plaintiff s responsibility to comply with the pedestrian and vehicle right of way provisions of the NS Motor Vehicle Act states: The Court of Appeal was of the view that this was an invitation to the Jury to consider whether the infant Plaintiff did what a reasonable person would do or whether the infant Plaintiff failed to use reasonable care. The Court of Appeal saw this as holding the infant Plaintiff to adult standards, which would leave the Jury with little choice but agreed that the infant Plaintiff s actions were relevant when considering the Defendant s potential negligence, but that ignoring the reality that the actions were those of a child constituted a reversible error. The Defendants have applied for leave to appeal to the Supreme Court of Canada. Joseph Chedrawe I Was Working, I Swear : - Unreported Income and Claims for Lost Income in Atlantic Canada The recent success of James L. Chipman, Q.C., a partner (2011), provides an excellent opportunity to review the approach taken by the Courts in Atlantic Canada with respect to unreported income and claims for lost income. In Kremer, the Plaintiff claimed general and special damages, including $86,768 for past lost income. Although the Defendant was found liable for the motor vehicle collision, Justice Coady held that the Plaintiff failed to establish causation and dismissed his claim. The Judge continued, in the alternative, to provide a provisional assessment of damages, and further held that the Plaintiff failed to establish his claim for lost income: he had not supporting evidence regarding his earnings. In addition, issues. The decision in Kremer fails to report their income through annual income tax entitlement to damages for lost income. This decision is useful in defending insurance-related claims because it provides a timely update to the NS Court of Appeal decision in (1992). Bush is often cited by plaintiff s counsel to support a claim for lost income where the plaintiff worked for cash (waitresses, 13

14 taxi drivers, etc.) and could not produce income tax returns to support their claim for lost income. In Bush, the Court of Appeal found that the Plaintiff was entitled to damages for but the case is distinguishable from Kremer and should be understood in its context. First, the Court of Appeal in Bush found that the Plaintiff was not dishonest although she had clearly failed to report her income accurately in her tax returns. The Plaintiff, who worked as a domestic housekeeper, depended on her husband to complete her annual returns and to manage with the additional unreported income the Plaintiff s income would not have been taxable. Under the circumstances, the Plaintiff was not estopped by her inaccurate tax returns from claiming a loss of income in excess of the amount evidenced in her returns. Second, the Plaintiff led strong evidence to support the earnings that she claimed. In particular, the Plaintiff called each of her employers as witnesses. They gave evidence as to the nature of her work, the amount of money that she received from employment, such as used clothing for her children. Although the Plaintiff s income had not been reported accurately in her income tax returns, the Court the earnings. In Kremer, the Plaintiff, a pizza delivery driver, did not call customers or his employer to give evidence, he could produce no records to support his claim, and the Court found that, in general, he had credibility issues. Kremer clearly puts the onus on a plaintiff who cannot substantiate their income through tax returns to bring evidence of their earnings. A claim for lost income will not be granted based on the plaintiff s unsupported assertions about their loss. The leading case in NL, (1993), follows on the decision in Bush. In this case, the Court found that the Plaintiff s failure to report income from under-the-table plumbing jobs in his tax returns and to the unemployment insurance authorities was not a bar to considering the income for the purpose of calculating damages. The Plaintiff did not bring any third party witness on this point, but the Court accepted the Plaintiff s evidence about the nature of the work, his earnings and the reason he did not report. Finally, it is noted that the leading case in NB, Frenette (1988), takes a hard-line approach to this issue. In this case, the Court found that the Plaintiff s failure to report earnings was a bar to recovering the additional income in damages. The Court of Appeal held that when a Plaintiff intentionally under-reports their income, with a view to avoiding taxes, it was contrary to public policy to allow that Plaintiff to rely on the earnings to quantify damages for lost income. Overall, failure to report income in annual tax returns will operate as a bar to claiming lost income in NB and will serve as evidence against a plaintiff s income loss claim elsewhere in Atlantic Canada. The recent decision in Kremer demonstrates that Courts will be looking for independent evidence of plaintiffs alleged income. It is unlikely that a plaintiff s unsupported assertions (as seen in Maggie Stewart

15 Workers Compensation Eligibility in New Brunswick There still exists some confusion regarding eligibility for no- where there is also an entitlement to workers compensation accident. Prior to March 1990 the relevant provisions of the NB SPF No. 1 were virtually identical to those enacted in Ontario. In 1977 the Supreme Court of Canada, in, interpreted this wording. The Madill case arose out of a motor vehicle accident that occurred in February 1973, when the plaintiff, Chu, was injured in the course of his employment while working as a taxi driver. It was agreed that the plaintiff had been continuously disabled for 28 weeks post-accident. While eligible for Ontario Workers B of the auto policy covering the taxi. The Ontario policy provided: Exclusions The decisions of the courts below had been that the exclusion did not preclude the plaintiff, Chu, from claiming Section B The majority of the Supreme Court of Canada, in a 6-3 split reversed the decision. Mr. Justice Ritchie, in delivering the majority decision, quoted sections 8(1) and (2) of the Ontario, which provided: circumstances as entitle him or his dependants to an Simply put, although the worker had initially declined to litigation, he recovered less than the workers compensation be obligated to pay him the difference regardless of his election. Thus, the majority of the Supreme Court concluded that the plaintiff was eligible for Section B In light of the above, the prevailing opinion in NB prior to March 1990 was that Madill would likely apply and that a worker injured in the course of his employment by automobile accident would not be entitled to Section B New Brunswick, as it then was and remains. Section 7(1) provides for entitlement to provide as follows: 10(1) Subject to section 11, where an accident occurs circumstances as to entitle him or his dependents to 15

16 and less is recovered and collected under the his dependents would be entitled under this Part, the While a detailed discussion is beyond the parameters of this article, various situations arise where a worker is injured in the course of his employment and has a right of action against someone other than his employer. Such situations include any event where the defendant tortfeasor is a stranger to the workers compensation scheme and, since 1981, motor vehicle and related transportation accidents where the tortfeasor is the worker of another employer under the Act. In these situations, by virtue of section 10(1) above, the injured worker may elect to either receive legal recourse directly. Section 10(8) above is virtually identical to section 8(2) of the Ontario Act as referenced in Madill, thus supporting the prevailing view referenced above. Madill was followed by Mr. Justice John Turnbull in (1991), although the case dealt with the death analysis of the relationship between the relevant sections of the NB and the exclusion in Section B is not included in Mr. Justice Turnbull s decision. Many viewed this situation as unfair, as it effectively required and assign their rights of action to the Board. The practical choice faced by the worker appeared to be either to elect by the Act in order to survive during an interim period of disability or, alternatively, to elect to sue the tortfeasor and of entitlement to Section B. This was clearly a disincentive. This inequity was supposedly addressed in March 1990 when the exclusion in SPF No. 1 was amended. Unfortunately, the drafting of the new exclusion is less clear than might have been hoped for. The current exclusion, 3(a) of Section B provides: Exclusions (a) the insurer shall not be liable under this section Compensation law or plan and has not exercised his option to recover damages as provided under said law or plan, (emphasized above) and by the wording of clause (ii). or plan and is clear. The second portion of the clause pertains to the worker having not exercised his option to recover damages as provided under said law or plan and this refers to the section 10(1) right of the worker to elect to bring the action as against a wrongdoer. The intent of Superintendent of Insurance was to overcome Madill course of their employment who chose to control their right of action and pursue legal action personally. 16

17 The current exclusion to Section B was considered by the NB courts in (2000), The facts in Smith are simple. Smith was injured in a motor vehicle accident while driving his employer s vehicle in the course of his employment. He claimed workers of time until the Workers Compensation Commission ongoing disability resulted from a psychological injury and was not compensable under the Act. Smith then applied for In Smith, the courts at both levels appear to have been swayed by the fact that Smith s ongoing disability was the result of alleged psychological injury, not compensable under the workers compensation scheme. Mr. Justice Ryan, in speaking for the Court of Appeal, stated at paragraph 8: Both at trial, and in the Court of Appeal, the Court distinguished (1996). The McQueen case is a Nova Scotia trial decision which interpreted an exclusion that was virtually identical to that considered by the Supreme Court of Canada in Madill (the pre-1990 exclusion in NB). In the McQueen case, it from the NS Workers Compensation Board for over by the NS Board. That decision was under appeal by the plaintiff who, at the same time, also applied for so-called found that the reasonable interpretation of the exclusion was that it precludes the plaintiff from claiming Schedule McQueen was distinguished by the NB Court of Appeal in Smith on the basis that the NS Interpretation Act is worded differently from New Brunswick s and, further, because in the Smith case Smith s the. Mr. Justice Ryan adopted the principle in Madill that it is sound construction of contract law to construe the impugned provision broadly and any exclusions thereof narrowly but also disagreed with Madam Justice Garnett s use of the Interpretation Act at trial stating, at paragraph 12: Conclusion The amended exclusion to SPF No. 1, effective March 1990, is intended to allow workers injured in the course of their employment to either elect to claim workers compensation pursue their legal right of action where same exists and, in 17

18 motor vehicle accident cases, retain eligibility for Section B The NB courts reached the correct decision in Smith as, on the peculiar facts of that case, Smith s alleged ongoing disability was psychological and not compensable. However, this writer submits that if facts similar to those before the NS Court in McQueen were before a court in NB, paraphrase the exclusion to Section B, the worker, entitled sue but, rather, would have elected to claim compensation in which case the insurer would not be liable under the exclusion. Greg Sinclair vehicle accident. The Plaintiff, a university student, claimed ongoing serious impairment as a result of her injuries, neck pain and pain in her right leg. She claimed that these injuries were affecting her ability to study, complete her coursework, and travel in a motor vehicle for more than one hour. The public portion of the Plaintiff s Facebook page included several photographs of her engaged in recreational activities, including zip lining from one elevated tree to another while suspended in the air in a body harness. Based on this information, Defence counsel requested an order compelling the downloading and preservation of all of the contents of the social network sites the Plaintiff was subscribed to (including Facebook) and the sealing of such contents until such time as a production hearing could be held to determine whether the Defendant was entitled to access this data in preparation for discovery and trial. : Document Production and Disclosure in the Facebook Era The evolution of the law on the use of Facebook and other social media sources in personal injury actions continues in a recent decision by Justice Ferguson of the NB Court of Queen s Bench. In (2011), Justice Ferguson issued a lengthy decision on an ex parte motion brought by Defence counsel in a personal injury action arising out of a motor Defence counsel was concerned that the nature of the data on social networking sites allowed for easy, permanent deletion, as it was not contained on the Plaintiff s hard drive, and only existed on the computer mainframe of the social network service provider. They therefore sought a detailed and extensive ex parte order, which included a provision The order then directed Plaintiff s counsel to summon his the downloading and preservation of the social network site data. The unusual form of the order sought presumably was triggered by an unreported decision in the earlier case of (2009), a short oral ruling in which Defence counsel was permitted to review the Facebook contained anything bearing on the issues in dispute. 18

19 Justice Ferguson found the order sought by Defence individual privacy and to the health of the relationship she has with her counsel. In particular, Justice Ferguson was concerned that directly conscripting the Plaintiff s counsel by court order in the detailed process of the downloading and securing of data by her may do serious damage to the solicitor-client relationship. After a thorough analysis, Justice Ferguson did agree to issue a Preservation Order for the contents of the Plaintiff s Facebook page only. There was no indication on the Plaintiff s other social media accounts of any by Justice Ferguson, some of the photographs obtained by the Defendant from the Plaintiff s Facebook site raise a concern that, if unexplained by her, tend to support a conclusion that there may be an effort afoot to mislead the Defendant into believing that Ms. Sparks injuries are more serious than they really are. This decision was controversial upon release, and Plaintiff s counsel indicated to the media his intention to appeal. The action was settled in March of 2011, and therefore the discovery point became moot. It therefore remains to be seen whether this unusual form of order requiring the hiring of third party counsel to supervise the preservation of a Plaintiff s social media data will be challenged in the future. This decision again underscores the importance to Defence counsel of thoroughly examining a Plaintiff s social media use at discovery. It also appears to push the boundaries of Plaintiff counsel s obligation to ensure that all potentially relevant information from their client s social media sites is produced. Sarah Dever-Letson Justice Ferguson also made certain revisions to the initial order sought by Defence counsel. The terms of the order issued included the following: or an agent lawyer of his choice, to be appointed to carry out the remaining terms of the Order. without telling her why, arrange to meet with her at a location convenient to access and download data from the internet. contents of the Order, and supervise the preservation of the Facebook data. Hearing. SEF 44 Endorsement and Deductibility of Past and Future CPP Disability out in Section 4 of the SEF 44 Endorsement are deductible, were encompassed in the enumerated sources of deductions to be applied. In 19

20 damages arose at the time of the accident, the quantum also held that an insurer was entitled to deduct all amounts recovered by a claimant from the date of the accident to the date of determination of her damages by the Court of Queen s Bench. However, the Court rejected the argument section 4 of the SEF 44 Endorsement does not allow an will be likely to receive. In both (1997) and Canada (2000), the Courts held that amounts owed by an insurer under the SEF 44 Endorsement crystallized as of deductible from the insured s indemnity. Five years after the Melanson decision, the Supreme Court of Canada rendered its decision in (2002). Therein, the Court held that the conditions for an insured s entitlement under an SEF Endorsement are crystallized as of the time the tort occurs, rather than at the date of judgment. In Somersall, the claimant sought recovery of damages in excess of policy limits from the defendant insurer pursuant to an SEF 44 Endorsement with wording identical to the Endorsement in Melanson. The Supreme Court of Canada held that the relevant point in time at which to assess whether an insured is legally entitled to recover under an SEF 44 Endorsement is at the time of the accident (as opposed to the time of the tort judgment as expressed in ). The Aftermath of Somersall After Somersall, in (2003), the PEI Court of Appeal was faced with the issue and future, are deductible from the amount payable under the SEF 44 Endorsement and/or whether the Worker s Compensation Board had a right of subrogation against any amount paid pursuant to the SEF 44 Endorsement. The Court applied the principles set out in Somersall and held that an insured s entitlement under an SEF 44 Endorsement arises at the date of the accident, rather than the date of the judgment. Moreover, the Court held that and that both were deductible. In its decision, the Court also explicitly stated that in light of Somersall, the Melanson and Doran decisions could not be followed. The NS Court of Appeal came to a similar conclusion in and (2004), wherein the Court held that the present value of both past payable under an SEF 44 Endorsement. The Court also noted that Somersall overruled the Doran decision. Neither the PEI nor NS Courts of Appeal dealt directly with the New Brunswick Economical Mutual Insurance Ginette Lapalme was injured in a motor vehicle accident. At the time, she held an SEF 44 Endorsement with Economical. She applied for and received CPP disability claim against the driver and owner of the other vehicle for the policy limits of $200,000. She then sought to recover her damages that exceeded this amount from her own insurer under the underinsured motorist coverage. The main question at Trial was whether her past and future 20

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