6 total
Late SABS claim barred by limitation despite allegedly misleading denial explanation.
The defendant insurer brought a motion for summary judgment dismissing the plaintiff’s action for statutory accident benefits as statute‑barred.
The plaintiff sought non‑earner benefits following a motor vehicle accident but did not request mediation until several years after the insurer’s written refusal.
The court held that the insurer’s OCF‑9 form clearly denied the benefit and triggered the two‑year limitation period under the Statutory Accident Benefits Schedule and the Insurance Act.
Although the plaintiff argued the denial contained a misleading explanation and that she did not understand her entitlement, the court found that once she retained counsel in early 2006 she was deemed to know of the limitation period and her rights.
The mediation request and subsequent claim were therefore well outside the limitation period.
The action and the request to amend the claim to plead negligent misstatement were dismissed.
Successful responding party awarded partial indemnity costs after summary judgment motion dismissed.
Following the dismissal of a summary judgment motion brought by certain defendants, the plaintiff sought costs on a partial indemnity basis.
The responding defendants did not object to the quantum requested.
The court found the plaintiff’s requested costs reasonable and ordered payment accordingly.
The decision also corrected a typographical error in the court’s earlier reasons for judgment regarding which party amended a statement of defence.
Contractor cannot rely on land lease insurance clause to bar owner’s claim.
Contractors and subcontractors moved for summary judgment seeking dismissal of a negligence and property damage claim arising from a water leak during mechanical system upgrades to a commercial building.
They argued that a builder’s risk insurance obligation contained in a long‑term land lease between the building owner and its landlord created a subrogation bar protecting them as third‑party beneficiaries.
The court held that the construction contract governing the work contained an “entire agreement” clause and expressly allocated responsibility for builder’s risk insurance to the contractor.
Because the defendants were strangers to the land lease and had neither relied upon nor bargained for its provisions, the lease could not override the later construction contract or confer a defence through the privity exception.
The insurance provision in the land lease therefore did not bar the plaintiff’s action.
Insurer-generated medical assessment costs are not recoverable under the loss transfer provisions of the Insurance Act.
The appellant insurer sought indemnification from the respondent insurer under the loss transfer provisions of the Insurance Act for the costs of insurer-generated medical assessments.
The respondent conceded its insured was 100 per cent at fault but refused to indemnify the costs of the medical assessments, arguing they were not payments 'in relation to' statutory benefits paid.
The arbitrator and the Superior Court judge ruled in favour of the respondent.
The Court of Appeal dismissed the appeal, holding that the expense of insurer-generated medical assessments is not recoverable under s. 275(1) of the Insurance Act as payments 'in relation to such benefits paid'.
Summary judgment denied as scope of lease's exculpatory clause regarding water damage requires a trial.
The defendant landlord brought a motion for summary judgment to dismiss a subrogated claim by the plaintiff tenant's property insurer.
The claim arose from water damage caused by a burst pipe.
The landlord relied on an exculpatory clause in the commercial lease stating it was not liable for damage to the tenant's property 'however caused'.
The court dismissed the motion, finding that the lease only required the tenant to obtain public liability insurance, not property insurance, and that the scope and application of the exculpatory language raised genuine issues requiring a trial.
Court permits substitution of correct corporate defendant under expanded misnomer doctrine.
The plaintiff brought a motion to amend its statement of claim to substitute a corporate defendant, arguing that the originally named defendant was incorrectly identified and that the intended defendant was the American manufacturer of the equipment at issue.
The responding party argued the amendment was not a misnomer because the originally named entity was a distinct legal entity deliberately chosen by the plaintiff.
Applying the modern approach to misnomer under Rule 5.04(2) of the Rules of Civil Procedure and appellate authority, the court considered whether there was a coincidence between the plaintiff’s intention to name the proper party and the intended party’s knowledge that it was the intended defendant.
The court found that the plaintiff always intended to sue the manufacturer and that the manufacturer knew it was the intended defendant based on prior correspondence and the pleadings.
Leave was granted to amend the statement of claim to substitute the proper corporate defendant.
