In Calliste v. State Farm Mutual Automobile Insurance
Company (2016 ONSC 1854), the insurer brought a summary
judgment to dismiss the Plaintiff's claim for medical benefits
on the basis that the Plaintiff's injuries were within the
Minor Injury Guideline (MIG). The insurer argued that based on the
medical evidence, (1) the Plaintiff only suffered minor injuries
from the accident and (2) the Plaintiff did not have any
pre-existing condition that would prevent him from effectively
recovering within the MIG limits. Additionally, the insurer sought
summary judgment on the claim for income replacement benefits
because the Plaintiff had not provided any evidence that he had
lost any income.
The Court referred to the Supreme Court of Canada's decision
in Hryniak v. Mauldin (2014 SCC 7) and noted
that there were no genuine issues requiring a trial. The Court
also referenced the previous decision in Paramandham
v.Holmes et al. (2015 ONSC 1903) where summary judgment
was granted because no medical evidence was advanced to establish
that the injuries fell outside the MIG.
In granting the motion for summary judgment, the Court held that
the Plaintiff had not met his burden of proving that he fell
outside of the MIG. The Court concluded that there were no
inconsistencies between the evidence relied on by the parties.
Additionally, the evidentiary record provided the Court with the
evidence needed to "fairly and justly adjudicate the
dispute." The evidence established that the Plaintiff
suffered from a minor injury or predominantly a minor injury which
fell within the MIG. Further, the Plaintiff had not adduced the
evidence necessary to support his claim for income replacement
benefits. The claim was dismissed.
The case serves as an important reminder that applicants, not
insurers, have the onus of establishing that a claim falls outside
the MIG. While insurers may be reluctant to bring a motion for
summary judgment on this issue, the recent case law suggests that
with the proper evidentiary record, the court will be prepared to
dismiss MIG claims.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
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