The Courts of Appeal decisions therefore stand. In Brine,
the Nova Scotia Court of Appeal reduced damages for mental distress
from $180,000 to $90,000, and punitive damages were reduced from
$500,000 to $60,000. In Branco, the Saskatchewan Court of
Appeal reduced damages for mental distress from $450,000 to $45,000
and punitive damages were reduced from an unprecedented $4.5
million to $675,000.
The standard of good faith applies to discretionary services
like rehabilitation once offered. In general, insurers must
carefully consider how they are handling their files, be able to
back up their conclusions with reasonable and rational evidence,
and remain forthright in communications with the insured –
especially in contracts meant to protect the insured's
"peace of mind." Insurers will have to be cautious when
deciding to commence rehabilitation benefits, as they will not be
permitted to stop them even in the face of it appearing the insured
will not return to work (without risking a finding of bad faith,
and a corresponding award of damages). Insurers may need to
consider more explicit provisions in the contract to mitigate what
could be a significant change in the way rehabilitation benefits
have been engaged in the past.
Courts in Nova Scotia are not hesitating to award large damages
awards against insurers, whether they are contractual damages for
the insured's mental distress, or punitive damages for
particularly egregious conduct by the insurer. Further, if an
insurer has a history of such awards imposed against them in other
cases, this will likely increase the frequency and amount of
punitive awards against the same insurer.
1 Interestingly, before the Supreme Court of Canada
dismissed the appeal in Brine, the Court considered
whether the Plaintiff Insured was allowed to file an affidavit from
a professor which made a number of statements about misconduct by
insurers being exacerbated by low punitive damages. The Court held
the affidavit did not assist the Court in determining if the appeal
dealt with matters of public importance, and commented the
affidavit amounted to an "improper attack on the correctness
of the Court of Appeal decision below". The decision is not
publicly available, but can be found on Westlaw at 2016 CarswellNS
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).