Tag Archives: insurance law

Insurers Take Note – No Discount on Discount Rates

By Raman Johal

Pursuant to our Insurable Interest bulletin of May 2, 2013 advising that the discount rate was being reviewed, the Chief Justice has lowered the discount rate to 2% for cost of future care (from 3.5%) and 1.5% for future income loss (from 2.5%). The new discount rate takes effect immediately.

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Supreme Court of Canada Clarifies Requirements for Certification of Class Actions

By Jordan Watson

The Supreme Court of Canada released reasons for judgment in three cases on October 31, 2013: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 (“Pro-Sys“) and Sun-Rype Products Ltd. v. Archer Daniels Midland, 2013 SCC 58 (“Sun-Rype“), both cases on appeal from the British Columbia Court of Appeal, and Infineon Technologies AG v. Option consommateurs, 2013 SCC 59 (“Infineon“), on appeal from the Quebec Court of Appeal.

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SCC Refuses Leave to Appeal D&O Coverage Case

By Cassandra Drake

The Supreme Court of Canada recently refused leave to appeal the decision in Onex Corporation et al. v. American Home Assurance Company et al, 2013 ONCA 117, a case where the Ontario Court of Appeal had provided guidance on a number of important issues in the context of director and officer insurance policies. In particular, the court addressed the adequacy of notice of claims under a prior notice provision, the proper interpretation of an “insured vs. insured” exclusion clause and “reasonable expectations” in the context of a unique fact pattern.

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When It Comes To Defence Costs, First Layer Is Usually The Payer

In a world of increasing business risks, insureds often purchase one or more layers of excess coverage to secure additional protection from the unknown. Such layering of coverage, however, can trigger disputes between primary insurers and excess insurers.

In the recent decision of ACE INA Insurance v. Associated Electric & Gas Insurance Services Ltd., 2012 ONSC 6248, the Ontario Superior Court of Justice considered the issue of when an excess liability insurer would have an obligation to contribute to defence costs which are often borne by the insurer at the primary layer.

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Duty to Defend: Who is "you"?

By Nigel Kent

In Dominion of Canada General Insurance v. Hannam, 2013, NLCA 37, the Newfoundland Court of Appeal has issued another reminder to the insurance industry that the “plain English” use of words like “you” and “your” can lead to ambiguity and a duty to defend where none might have been expected.

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Discounts Rates Going Down, Damage Awards Going Up!

Discount rates are used to calculate the present day value of a loss of future income or cost of future care that is awarded as a lump sum in personal injury cases. The discount rate assumes that the lump sum will be invested and will earn enough income to create a sufficient stream of compensation for the injured party over the appropriate time frame, with the fund being fully exhausted at the end. This is one methodology of calculating and compensating future financial loss endorsed by the so-called 1978 “Trilogy” of catastrophic injury cases decided by the Supreme Court of Canada.

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Beware the Ides of March: Insurers Get Hammered with Bad Faith Punitive Damages!

By Jordan Watson and Nigel Kent

Historically, nasty things happen in the middle of March and this year is no exception. On March 21 and 22, 2013, respectively:

  • The Saskatchewan Court of Queen’s Bench hammered American Home Assurance and Zurich Life Insurance with aggregate punitive damages of $4.5 million for bad faith claims handling and aggravated damages of $450,000; and
  • Penncorp Life Insurance got hit by the Ontario Superior Court of Justice with aggravated damages of $100,000 and punitive bad faith damages of $200,000.
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Tort Immunity Arising from Covenants to Insure: The BC Court of Appeal Confirms Bar to Subrogated Claims

By Jordan Watson &nbsp

The BC Court of Appeal handed down reasons for judgment yesterday (January 9, 2013) in the most recent case related to covenants to insure: Kruger Products Limited v. First Choice Logistics Inc., 2013 BCCA 3 (“Kruger”) on appeal from the trial decision (2010 BCSC 1242).

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ILN Today Post

Does an insurance policy mean what it says?

Bank of Queensland Limited v Chartis Australia Insurance Limited [2012] QSC 319

A recent Queensland decision[1] demonstrates when a court may overlook the seemingly plain meaning of a particular clause to avoid an unbusinesslike interpretation.  In this instance, an exclusion clause was held to apply to defence costs despite the clause making no reference to them.

ASIC takes aim

In 2010 the Australian Securities and Investments Commission (ASIC) instigated proceedings (Barry Doyle and Deanna Doyle as applicants) against the Bank of Queensland (BoQ) in relation to a number of home loan contracts and a mortgage.  An amended statement of claim filed in March 2012 sought declarations (namely that BoQ engaged in conduct that was unconscionable) and damages. More…

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ILN Today Post

Insurance Contracts Amendment Bill dusted off for early Christmas present

On 28 November 2012, the government released a further exposure draft of theInsurance Contracts Amendment Bill 2012 (Cth) (the Bill).  Aside from four proposed refinements, the proposed legislation remains unchanged from theInsurance Contracts Amendment Bill 2010 (the 2010 Bill) (previously discussedhere).  Consequently, in this update we only address the four changes to the 2010 Bill.

Insured’s duty of disclosure

The 2010 Bill included only one factor (as opposed to the three factors appearing in the 2007 exposure draft) that a court should give consideration to when assessing an insured’s duty of disclosure (pursuant to the mixed subjective/objective test in section 21).  This was the nature and extent of cover provided by the contract of insurance.  The Bill has reinstated another consideration, namely the class of persons who would ordinarily be expected to apply for cover of that type. More…

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