Automobile liability insurers in Alberta have long been permitted to offer advanced payments to injured claimants in part settlement of claims without admitting that the insurer or its insured has any liability. This bulletin looks at two issues surrounding advanced payments: the disclosure of advanced payments to the trial judge and therecent amendment allowing non-voluntary court-ordered advanced payments.

The current advanced payment provision is section 581 of the Alberta Insurance Act, "which provides:

581(1) When an insurer makes a payment on behalf of an insured under a contract evidenced by a motor vehicle liability policy to a person who is or alleges to be entitled to recover from the insured covered by the policy, the payment constitutes, to the extent of the payment, a release by the person or the person's personal representative of any claim that the person or the person's personal representative or any person claiming through or under the person or by virtue of the Fatal Accidents Act may have against the insured and the insurer.

Advanced payments under section 581 act as a release of the claim to the extent of the payment. Insurers typically consider making such a payment when its insured is plainly liable for the claimant's injury and the insurer is confident that damages will exceed the amount of the advanced payment.

Disclosing an Advanced Payment to the Court

Ordinarily the fact and amount of an advanced payment is kept confidential. The Insurance Act prohibits disclosing advanced payments to the court during trial. Section 581(4) provides:

(4) The intention of this section is to permit payments to a claimant without prejudice to the defendant or the defendant's insurer, either as an admission of liability or otherwise, and the fact of any payment must not be disclosed to the judge or jury until after judgment but may be disclosed before formal entry of the judgment.

There have been occasions, however, where the insurer wished to argue at trial that the plaintiff failed to mitigate by using the advanced payment to pay for treatment.

In Guthmiller v Krahn, 2001 ABCA 266, the insurer made advanced payments totaling $85,000. The insurer also took the position that the plaintiff should attend at the Canmore Pain Management Clinic. Before a trial on quantum counsel agreed that the fact and amount of the advanced payment must not be disclosed in the trial. Defence counsel, in cross-examining the plaintiff at trial, asked pointed questions suggesting that, by not attending the Canmore Clinic, the plaintiff had failed to mitigate when he had the financial means to do so. This reference to financial means was a thinly veiled reference to the insurer's advanced payments. The trial judge reprimanded the lawyer for essentially disclosing at trial the fact of the advanced payment, contrary to the statute and the agreement of counsel. The Court of Appeal upheld the trial judge's decision that defence counsel's line of questioning was improper in light of the provision in subsection (4) that the fact of any advanced payment must not be disclosed to the judge until after judgment.

The Court of Appeal in Guthmiller proposed two possible solutions to the insurer's predicament: First, the amount of the advanced payment could have been disclosed "in the financial statement without identifying the source of the payment." This would permit the defendant to pursue its line of questioning concerning mitigation and financial means without disclosing the advanced payment. Second, the statute allows disclosure of the advanced payment to the trial court after judgment is granted but before it is formally entered. In this time window the defendant could apply to the trial judge to adduce new evidence, disclosing the advanced payment and making its argument about mitigation.

This second approach was taken in Pfob v Bakalik, 2004 ABCA 278. The trial and appellate courts both approved of the procedure that was adopted, of disclosing the advanced payment and making arguments on mitigation after the trial judge had rendered her judgment but before judgment was formally entered.

Court-Ordered Advanced Payments

Until recently, all advanced payments were voluntary on the part of the insurer. In 2004 the Insurance Act was amended to pave the way for the government to make regulations "authorizing the Court to make an order requiring an insurer to make a payment under this section to a claimant in advance of any judgment" and prescribing the circumstances under which an advanced payment order may be made.

Section 5.6 of the Fair Practices Regulation governing court-ordered advanced payments came into effect in July, 2012 along with the Insurance Act amendments arising from the Insurance Amendment Act, 2008. The test for a court-ordered advanced payment requires the court to be satisfied that:

(a) as a result of the injuries of the claimant, the claimant is unable to pay for the necessities of life, or
(b) the payment is otherwise appropriate.

This provision grants a great deal of judicial discretion, particularly in light of the "otherwise appropriate" wording.

The Regulation also gives the court broad scope to impose "any conditions it considers appropriate" as part of its order. Conceivably, the court could order the plaintiff to use the payment for a particular treatment or other purpose as a condition of payment.

No other province has a legislative provision quite like Alberta's section 5.6.

Newfoundland's courts have discretion under their Rules of Court to order an advanced payment. In certain other provinces a court may order an advanced payment of special damages (New Brunswick) or as a condition of granting a defendant a trial adjournment (B.C.). Cases from other provinces can shed some light on how Alberta's courts will apply section 5.6. The cases from these provinces suggest that advanced payments will likely only be ordered in exceptional cases, where the applicant is able to prove (i) that there is no reasonable possibility that the final award will be less than the advanced payment; (ii) that the applicant faces serious financial difficulty without the payment; (iii) that there is no serious issue concerning liability or the causal connection between the injury and the accident. Insurers should expect these criteria to be the focus of the court's attention on an application under the new Alberta provision.

At present there are no reported Alberta cases on advanced payments under section 5.6. However, Field Law's insurance defence lawyers report that they are seeing applications for advanced payments come across their desks on several files. We may not have to wait long before the Alberta court issues its first written decision on the criteria for awarding a plaintiff an advanced payment.

This article has been published with the permission of Field Law, and may be republished only with the consent of Field Law. "Field Law" is a registered trademark of Field LLP.


Full-Text Decisions

Ambiguity of "Common Carrier" in Policy Rider Resulted in Declaration That Plaintiff Was Entitled to $1 Million Benefit

British Columbia Court of Appeal, June 4, 2013

The plaintiff's husband was killed when the airplane in which he was a passenger crashed. The plaintiff sought to recover a $1 million benefit pursuant to a Common Carrier Accidental Death Benefit Rider under a policy issued by the respondent insurer to Sears customers who purchased it. The insurer had denied coverage on the basis that the rider did not provide coverage for accidental death during charter flights. At trial, it was decided that "common carrier" did not include the at-issue charter flight, as it was not available to the public (see [2012] I.L.R. ¶I-5246). The plaintiff appealed, arguing that the trial judge erred in his interpretation that the rider: (1) required the aircraft to have been operating on a regularly scheduled passenger service between defined points; and (2) required the aircraft to be available to members of the public at the time of the accident.

The appeal was allowed, and the plaintiff was declared entitled to the $1 million benefit. With regard to the definition of "common carrier" in the rider, the question was whether the aircraft had to be flying on a regularly scheduled flight between established locations when it crashed. The Court reviewed the rider and found that it was unclear whether, at the time of the loss, the aircraft actually had to be flying on a regular passenger route with a definite regular schedule of departures and arrivals between established points to meet the definition, or whether it was sufficient that it was licensed to transport passengers and it provided and operated such routes. The Court held that the words used to describe a common carrier fell short of creating a clear temporal requirement for each of the three elements of the definition. The Court agreed with the plaintiff that the insurer could have used clear language if it intended to exclude coverage for charter flights. The Court also found that the trial judge erred in finding that the aircraft had to be available to the public at the time of the accident. The Court noted the unorthodox use of "common carrier" in the rider: it described the conveyance that provided the transport. Again, the Court found a temporal ambiguity. The aircraft was licensed to provide and operate transport to the general public. Because the rider was unclear that it had to be so engaged at the time of the accident, the Court invoked the doctrine of contra proferentem and found that the ambiguity had to be resolved in favour of the plaintiff.

Court Agreed With Obiter Comments of Supreme Court of Canada Case That a Designation of Beneficiary Was a Transfer of Property

Supreme Court of Nova Scotia, May 23, 2013

This was an application to determine who was entitled to the proceeds of a life insurance policy. The dispute was between the named beneficiary and applicant, Rita Christian ("Christian"), and BDO Canada Limited, the trustee of the estate in bankruptcy. After the deceased died, it was discovered that he had been running a fraudulent investment scheme in addition to his legitimate business. The deceased held several life insurance policies. The one in issue was obtained in 2000 for $300,000, originally naming his mother as the beneficiary. In 2009, the beneficiary was changed to Christian. The deceased's mother died in February 2010, and the deceased committed suicide in May 2010. When Christian attempted to assert her entitlement, the insurer advised her that it was bound to pay the money to the trustee. The trustee's position was that the change of beneficiary in favour of Christian was a transfer of property contrary to the Statute of Elizabeth and the Assignments and Preferences Act.

The application was allowed. The Court found that the deceased was insolvent long before the change in beneficiary designation was made. Noting that there was significant disagreement in the case law as to whether the designation of a beneficiary was a transfer of property, the Court stated a purposeful approach was required. Although life insurance is often used for family security, it is also used as security in commercial transactions, and therefore beneficiaries' rights are important. These rights are something of value and bear many of the characteristics of what is considered property. A beneficiary designation might be a "contingency based on an expectation," but it still has value. The Court found that it was appropriate to accept the reasoning in Royal Bank of Canada v. North American Life Assurance Co. and Balvir Singh Ramgotra, [1996] 1 SCR 325, although in obiter, that a designation of beneficiary was a transfer of property. Ultimately, the Court concluded that the designation of Christian as beneficiary stood, and she was entitled to the insurance money as against the trustee.

Re MacArthur Estate, [2013] I.L.R. ¶I-5444

Alternative Interpretations Did Not Render Physical Evidence Valueless as Corroboration

Ontario Superior Court of Justice, May 30, 2013

The plaintiff Ann Marie Featherstone ("Ann") was driving a blue recycling truck around a bend on a country road when, she alleged, a red pickup truck came at her with excessive speed, crossed partly into her lane, and caused her to "roll" her truck in an attempt to avoid a collision. Ann was partially ejected from the truck and alleged she sustained catastrophic injuries. Two experts differed as to her truck's speed and what the physical evidence at the scene meant. The plaintiffs did not dispute that there was no independent witness evidence. The defendant insurer brought a motion for summary judgment, submitting that the plaintiffs failed to meet the corroboration requirement imposed by OPCF 44R Family Protection Coverage Endorsement in automobile accidents with an unidentified vehicle. The issue before the Court was whether there was "physical evidence indicating the involvement of an unidentified automobile."

The defendant's motion was dismissed. The Court stated that because automobile insurance coverage is remedial, it has to be interpreted broadly and liberally. Noting that the physical evidence relied on by the plaintiffs consisted of tire marks left on the side of the road by Ann's truck, the Court held that the "physical evidence" requirement did not require that the evidence came from another vehicle. What was important was that the evidence indicated the involvement of another vehicle that forced the plaintiff to take evasive action and resulted in her tire marks being left on the side of the road. The Court noted that the legislation used the word "indicate" and not "prove." The tire marks were clearly open to many interpretations, but alternative possibilities did not render the physical evidence valueless as corroboration. The Court concluded that none of the physical evidence suggested that Ann was lying about what happened and there was, therefore, a genuine issue for trial as to whether the physical evidence actually corroborated Ann's version of events, and whether she was entitled to claim under OPCF 44R.

Featherstone v. Doe, [2013] I.L.R. ¶I-5446

Broker Found Negligent in Failing to Properly Obtain Coverage

Supreme Court of Nova Scotia, June 11, 2013

The retired plaintiff set up a woodworking shop in the garage attached to his house. The garage was heated by a wood stove. The plaintiff did carpentry and furniture repair and also performed contract work for Home Depot installing kitchen cabinets and countertops. He contacted his insurance broker, the defendant Founders Insurance Group Inc. ("Founders"), to advise them of his new business activities. The plaintiff submitted he relied on Founders to obtain for him the necessary coverage. However, in requesting a quote from the defendant insurer, Portage LaPrairie Mutual Insurance ("Portage"), the agent only referred to the Home Depot work. A commercial lines policy was issued and renewed with various liability coverage, but all in relation to the Home Depot work. A fire broke out in the area of the wood stove and caused approximately $80,000 in property damage. Portage denied coverage on the basis that there had been a material change in risk under the homeowner's policy. The plaintiffs sued Portage for damages and Founders for negligence.

The action against Portage was dismissed, and the action against Founders was allowed. In the claim against Portage, the Court accepted the evidence that Portage would never insure premises with a combination of a woodworking shop and a wood stove. As Portage was never aware of the use of the premises, it was entitled to treat the circumstances as a material change in risk that was in breach of Statutory Condition 4 of the homeowner's policy. The Court further found that the plaintiffs were unable to establish that they should be entitled to coverage based on relief from forfeiture under section 171 of the Insurance Act, as the material change in risk's continuation right up to the date of the fire, the connection between the fire damage and the use of the wood stove, and the prejudice to Portage were all important. In the claim against Founders, the Court found that Founders was negligent in two respects: the agent was negligent in failing to inform Portage of the woodworking shop in the garage; and at renewal of the policy, Founders failed to confirm with the plaintiffs whether the information provided to the insurer was current. The Court held that both aspects of Founders' negligence were causative of the plaintiffs' loss of coverage under the policies. Judgment was awarded against Founders in the amount claimed.

Keizer v. Portage LaPrairie Mutual Insurance, [2013] I.L.R. ¶I-5449

Insurer Not Successful in Summary Dismissal Application in Wrongful Death Action

Court of Queen's Bench of Alberta, June 17, 2013

The deceased was drunk on the night in question and became involved in an altercation. The driver of another vehicle knocked the deceased over with his car. The plaintiff Tracy Atkin was the deceased's partner. She and the deceased had lived together for 16 months and planned to marry when she graduated. The plaintiff sued in her own right as the common-law spouse of the deceased and also claimed a derivative right to lost valuable services and financial support through the estate. An expert estimated her loss at $600,000. The third-party insurer denied liability, arguing that liability could not attach for the killing of a boyfriend; only a spouse, parent, child, or adult interdependent partner would attract liability. The insurer sought to strike the action.

The insurer's application was dismissed. The Court noted that the insurer's position had strong support in law, but that this area of law was "in a less than satisfactory state." After reviewing per quod servitium amisit, individual causes of action, negligence, and relational economic loss, the Court concluded that none of these common-law avenues helped the plaintiff. Turning to legislation, the Court found that "spouse" was not defined in the Fatal Accidents Act, but it could be said that the plaintiff and the deceased were in a marriage-like relationship and lived in a "relationship of interdependence." The problem was that they had not lived like that for three years prior to the death, as required by legislation. However, the regulations under the Adult Interdependent Relationships Act provided a form of agreement that obviated the need for three years of cohabitation. There was no express requirement beyond the existence of the form that the agreement be in writing. In this case, the content of the agreement existed (the parties were in a close and committed relationship), but the writing was absent. The Court noted that this meant that defendants could escape liability if plaintiffs failed to formally document their relationships, resulting in tortfeasors improving their positions by killing their victims rather than merely injuring them. The Court doubted the legislature intended such a result. The Court concluded that even though the several triable issues of law might be "long shots," it was not willing to strike the claim.

Dotto Estate v. Thickson, [2013] I.L.R. ¶I-5451

Other Insurance Decisions

  • Possibility of Coverage Within CGL Policy Triggered Insurer's Duty To Defend Canalta Construction v. Dominion of Canada General Insurance, [2013] I.L.R. ¶I-5441, Court of Queen's Bench of Alberta (June 4, 2013)
  • Orders Requiring Insurer To Review Notice of Use of Private Information to All of Its Policyholders Were Set Aside Economical Mutual Insurance v. BC (Information and Privacy Commissioner), [2013] I.L.R. ¶I-5442, Supreme Court of British Columbia (May 22, 2013)
  • Insurer Required To Defend Assault/Negligence Claim Simone v. Economical Mutual Insurance, [2013] I.L.R. ¶I-5445, Ontario Superior Court of Justice (May 31, 2013)
  • Insurer Alleged Numerous Requests To Admit Were Circumvention of Oral Discovery Process Mullen v. Allstate Insurance, [2013] I.L.R. ¶I-5447, Ontario Superior Court of Justice (June 7, 2013)
  • Insurer Was Obligated To Defend Negligent/Intentional Act Action, and It Retained Right To Appoint Counsel 2091533 Ontario Ltd. v. Vertigo Investments Ltd., [2013] I.L.R. ¶I-5448, Ontario Superior Court of Justice (June 10, 2013)
  • Plaintiff Sustained Permanent, Serious Impairment of an Important Physical and Psychological Function Glass v. Glass, [2013] I.L.R. ¶I-5450, Ontario Superior Court of Justice (June 7, 2013)

Torts — Motor Vehicle

Loss of Earning Capacity Damages Awarded to 76-Year-Old Plaintiff

Supreme Court of British Columbia, May 27, 2013

The 76-year-old plaintiff was involved in a motor vehicle accident with the defendants in December 2008. Liability was admitted. Prior to the accident, the plaintiff had undergone hip replacement surgeries, but had no surgeries in the six years before the accident. About a month after the accident, the plaintiff underwent an extensive surgery to repair damage to a femoral stem that had previously been placed in her right hip area. About a year after the accident, the plaintiff had surgery on her left knee. Afterwards, she continued to experience pain, but was otherwise active again. The plaintiff submitted she could do about 75 to 80 per cent of what she did pre-accident. The defendants questioned the causal link between the accident and the knee surgery, because the plaintiff experienced knee pain four to five months after the accident, and the diagnosis was osteoarthritis.

The action was allowed. The Court held that the plaintiff likely had osteoarthritis prior to the accident, but found that her left knee became symptomatic and required surgery when it did as a result of the accident. The Court accepted the expert testimony that the cause of the knee pain was overreliance on it due to the right-hip surgery or deconditioning of her left knee during recumbency following the hip surgery, or a combination of both. Turning to damages, the Court awarded non-pecuniary damages of $90,000. Regarding loss of earning capacity, the Court noted that a 76-year-old plaintiff would rarely make such a claim, but the plaintiff was an unusual person. She testified that she wanted to work and had to work in order to meet her mortgage commitment. The Court accepted that she was not retired and assessed loss of future earning capacity at $20,000.

Bannerman v. Sturrock, [2013] I.L.R. ¶M-2695

No Future Loss of Earning Damages Awarded Where No Real and Substantial Possibility of Job Loss

Supreme Court of British Columbia, May 29, 2013

The plaintiff was a passenger in a vehicle that was rear-ended. The impact was significant. She was diagnosed with whiplash and soft tissue injuries. Afterwards, she alleged that she began to experience regular headaches and developed myofascial pain syndrome. Prior to the accident, the plaintiff was an active mother to three teenagers. After the accident, she reduced her work hours for a time, but eventually began to work more hours than pre-accident. The plaintiff alleged that the headaches and neck pain persisted, and her doctor advised that she was unlikely to make a full recovery.

The action was allowed. The Court had to determine whether the plaintiff was being stoic and carrying on with her work due to her financial issues and her determination to overcome or whether she was exaggerating the pain and other suffering she alleged was caused by the accident. It did not appear that the plaintiff undertook a comprehensive exercise program, as contemplated by one of her doctors. The Court accepted that the plaintiff's soft tissue injuries caused ongoing pain, but not at the level described by the plaintiff. The Court found that the plaintiff was stoic but that the pain was not as debilitating as she suggested. The Court noted that she did not miss work. However, the Court accepted that the pain caused emotional suffering, impaired social and familial relationships, and required lifestyle adjustments. The Court awarded the plaintiff non-pecuniary damages of $85,000. As for loss of earning capacity, the Court declined to make an award, as there was no evidence that the plaintiff's work performance was affected after the accident. In addition, the possibility that she would have to leave work because of her injuries was not a real and substantial possibility. Instead, the Court found that a possibility remained that the plaintiff's condition could improve.

Beagle v. Cornelson Estate, [2013] I.L.R. ¶M-2696

Other Motor Vehicle Tort Decisions

  • Plaintiff's Injuries Not as Serious or Significant as Alleged Lees v. Compton, [2013] I.L.R. ¶M-2697, Supreme Court of British Columbia (June 7, 2013)
  • No Conflict of Interest for Insurer's Lawyer, as No Possibility of Misuse of Information Kelly v. TD Home and Auto Insurance, [2013] I.L.R. ¶M-2698, New Brunswick Court of Queen's Bench, Trial Division (June 12, 2013)

Torts — General

Court of Appeal Reversed Finding of Conspiracy and Interference With Business Relations

Court of Appeal of Alberta, July 4, 2013

The defendants were joint owners of oil and gas companies. They appealed the finding that they unduly limited competition as well as the damages assessment made against them (see ¶G-2392). The plaintiff, a fluid hauling company, cross-appealed the damages assessment, submitting that the trial judge should have awarded additional damages and costs. In the action, the plaintiff argued that because of the defendants' anti-competitive conduct, it was forced to shut down its business. Basically, the defendants chose to use one company to provide fluid hauling services, and they did not choose the plaintiff. The trial judge found that the defendants' decision to do so unduly limited competition and was akin to activity prohibited by the Competition Act (the "Act"). As a result, he found the defendants liable for the torts of conspiracy and interference with business relations in the amount of $5 million, plus $500,000 in punitive damages against each defendant.

The appeal was allowed, and the cross-appeal was dismissed. The Court concluded that the trial judge erred in finding that the defendants' decisions unduly limited or lessened competition. The plaintiff was provided with an opportunity to compete for the work and did not distinguish itself from its main competitor. The Court held that the defendants should not be precluded from rationalizing their business operations to increase efficiencies and reduce unnecessary costs. The trial judge's approach gave no meaning to the word "unduly" in section 45(1)(c) of the Act. He also appeared to have mistakenly lost focus of the true characterization of the defendants' actions and what they did to accomplish their business objectives. The trial judge focused too much on the consequences to the plaintiff's business. Although the defendants were capable of behaving in a manner contrary to the Act, it was not proven in the circumstances that the defendants' reorganization of their arrangements for fluid haulage created conditions that prevented or lessened competition.

321665 Alberta Ltd. v. Husky Oil Operations Ltd., [2013] I.L.R. ¶G-2521

Indemnity Claim Was Time-Barred by Limitations Act Even Though Grounded in Contract

Ontario Court of Appeal, June 7, 2013 The plaintiff corporation was an investment dealer, and it employed the defendant as an investment advisor. Pursuant to his employment contract, the defendant agreed to indemnify the plaintiff for losses stemming from his client dealings. In August 2008, two clients claimed against the plaintiff and defendant with respect to losses they sustained in an investment. The plaintiff hired counsel to defend both itself and the defendant, and it funded the defence. In July 2009, the plaintiff settled that action. After unsuccessful attempts to get the defendant to indemnify it pursuant to his employment agreement, the plaintiff commenced this action in June 2011 against the defendant for indemnification. The defendant brought a motion for summary judgment, arguing that by operation of section 18 of the Limitations Act, 2002 (the "Act"), the claim was barred, as it was commenced more than two years after the plaintiff was served with the clients' claim. The motions judge dismissed the motion on the basis that the action was not a claim for contribution and indemnity that attracted section 18, but a claim for breach of the employment contract. The defendant appealed.

The appeal was allowed. The motions judge erred in his characterization of the claim. The claim was for indemnity by one alleged wrongdoer against another. The fact that it was grounded in contract did not affect the question of whether it fell within the scope of section 18. The purpose of the Act is to balance a plaintiff's right to sue with a defendant's need for certainty and finality. Carving out exceptions to the general rule in section 18 for certain types of contribution and indemnity would undermine that purpose. The legal theory grounding the contribution and indemnity claim was not relevant when deciding whether section 18 was triggered. Section 18 applies when there is a claim for contribution and indemnity, regardless of the underlying legal theory of the claim. In this case, the employment contract simply provided when the obligation to indemnify was triggered. The Court found that when the words of section 18 were read in their full context, considering the object of the Act and the legislative purpose, it was clear the provision applied. The Court concluded that the claim was time-barred by operation of section 18 of the Act.

Canaccord Capital Corporation v. Roscoe, [2013] I.L.R. ¶G-2522

Plaintiff's Conspiracy Claim Against Car Dealerships Dismissed for Lack of Evidence

Ontario Superior Court of Justice, June 17, 2013

The plaintiff purchased a used 2004 Mercedes vehicle. In September 2008, he took the vehicle to a dealership for a vehicle inspection. There was a noise in the brakes. He was told the brakes were safe but would require changing in about a year for $6,000. A year later, the plaintiff took the car to another dealership. This time, he was quoted $4,500. The plaintiff ultimately replaced his brakes. However, the noise continued. The vehicle was returned for a second and a third visit, and an under-warranty repair was made. The noise stopped. At a subsequent oil change at another garage, it was discovered that the wheel bearing was loose and the brake disc/rotor was warped. The plaintiff presented evidence from a mechanic suggesting that the loosened wheel bearing was a method used by unscrupulous mechanics to compensate for noise from a warped brake disc/rotor. Once the wheel bearing was tightened, the noise came back. The plaintiff alleged the defendants conspired to avoid replacing the defective part, and risked his safety, among other things. He sought approximately $2,000 in special damages, and $1 million for punitive, aggravated, and exemplary damages. The defendants moved for summary judgment dismissing the action.

The motion was allowed in part. The Court noted that there was no evidence that the plaintiff in fact suffered any damages from the alleged wrongdoing; arguably, the plaintiff did not pay more than what was estimated. Further, the Court found that there was no evidence placed before it with respect to any specifics concerning the agreement that founded the alleged conspiracy among the defendants. The plaintiff provided no evidence of the specifics of the agreement including when it was agreed to, who was present, and what was discussed. The Court agreed with the defendants that the plaintiff's pleadings with respect to a conspiracy were bald, unsupported allegations. Indeed, plaintiff's counsel, in a letter to defence counsel, understood the weakness of his position when he wrote that it was "only a matter of time before we locate someone with the documentation to further prove the overcharging." The plaintiff was not entitled to wait and rely on the possibility that more favourable facts would develop. The Court dismissed that portion of the plaintiff's claim, but permitted the balance of the claims to proceed to trial. The Court ordered the plaintiff to pay costs of $17,500 to the defendants on the basis of the divided success.

Goldentuler v. Mercedes-Benz, [2013] I.L.R. ¶G-2527

Plaintiffs' Retirement Plans Not Thwarted by Negligence of Advisers

Manitoba Court of Appeal, June 10, 2013

The plaintiffs hired the defendants, who were licensed insurance agents, to devise a financial plan so that they could retire in their 50s. A few years after retiring, the plaintiffs realized their investment portfolio would not generate the desired income to age 90, and they returned to work. However, they earned much less than prior to their retirement. They commenced an action for the income they would have earned if they had not retired. The trial judge found that the husband never intended to use the home's sale proceeds for the retirement fund, as contemplated by the plan, and therefore did not rely on the plan in his retirement decision. No negligent misrepresentation was established. However, the trial judge held that the defendants failed to meet the standard of care required of persons who undertake the preparation of retirement plans (there were negligent acts/omissions related to the services they provided). The plaintiffs were held to be 40% contributorily negligent. The defendants appealed the finding of negligence. The plaintiffs cross-appealed the dismissal of their claims for negligent misrepresentation and breach of contract.

The appeal was allowed, and the cross-appeal was dismissed. With respect to the negligence claim, the Court stated the appeal could be resolved by addressing the issue of causation only. It held that there was no causal relationship between any of the negligent acts/omissions and the actual loss. The Court found that the trial judge failed to ask the crucial question of whether each of the alleged acts/omissions had a causal connection to the plaintiffs' decision to retire—he failed to address the "but for" test. The plaintiffs' retirement was the triggering event for their claimed loss relating to their reduced income, and they failed to show the Court that but for the defendants' negligence in implementing the plan, the plaintiffs would not have retired. None of the plan's alleged inadequacies had any bearing on the retirement decision. The Court concluded that the deficiencies regarding the lack of implementation of the plan could not have had any bearing on the decision to retire. With respect to the claim for negligent misrepresentation, the Court found that the trial judge correctly identified the proper test and made the critical finding that the alleged misrepresentations were forecasts and not representations of fact.

Giesbrecht v. Canada Life Assurance, [2013] I.L.R. ¶G-2528

Other General Tort Decisions

  • Negligent Misrepresentation Test Has Evolved To Become "Reasonable Reliance" Engage Agro Corporation v. Brewer, [2013] I.L.R. ¶G-2519, Ontario Superior Court of Justice (May 29, 2013)
  • Brokers' Pleading of Insurance Purchase Trends of Ontario Motorists Was Struck From Statement of Defence Trottier v. Beauchamp, [2013] I.L.R. ¶G-2520, Ontario Superior Court of Justice (May 24, 2013)
  • Court Refused To Exercise Discretion To Not Apply Lex Loci Delicti Rule Long (Litigation Guardian of) v. Dundee Resort Development, [2013] I.L.R. ¶G-2523, Ontario Superior Court of Justice (June 19, 2013)
  • Defendants Were Not Liable Under Occupier's Liability Act for Minor Plaintiff's Fall From Tree Winters v. Haldimand (County of), [2013] I.L.R. ¶G-2524, Ontario Superior Court of Justice (June 14, 2013)
  • Interest of Complete Solution Would Not Be Served by Removing Applicants From Joined Actions Intact Compagnie d'assurances v. Bergeron, [2013] I.L.R. ¶G-2525, Superior Court of Quebec (June 10, 2013)
  • Supreme Court of Canada Allowed Appeal With Respect to Disclosure of Settlement Amounts Sable Offshore Energy Inc. v. Ameron International Corp., [2013] I.L.R. ¶G-2526, Supreme Court of Canada (June 21, 2013)

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.