Defence & Indemnity – December 2016

1. INSURANCE ISSUES

   A. An insured killed by a thief driving the insured's vehicle is entitled to coverage under his S.P.F. 44 Endorsement, notwithstanding that one part of the definition of "inadequately insured motorist" purports to exclude coverage with respect to a vehicle owned by the insured due to an ambiguity in the Endorsement.

   Poulin v. Wawanesa Mutual Insurance Company, 2016 ABQB 547, per Sanderman, J. [4204]

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   B. A vehicle owned by the insured or spouse, if insured, may be an "uninsured automobile" when taken without consent and therefore may be entitled to coverage under the O.P.C.F. 44R Endorsement as an "inadequately insured motorist", notwithstanding that one part of the definition of "uninsured automobile" excludes an automobile owned by or registered in the name of the insured or his or her spouse.

   Skunk v. Ketash, 2016 ONCA 841, per Hoy A.C.J.O [4206]

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2. LIABILITY ISSUES

   A. New privacy torts of intrusion upon seclusion and public disclosure of private facts were supported in Canada.

   R. v. John Doe, 2016 FCA 191, per Ryer J.A, Boivin J.A. and De Montigny J.A. [4207]

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   B. Where a contract for security services explicitly provides that it is not a contract for insurance and contains an enforceable liability exclusion clause, the security provider will not be liable for the loss.

   Suhaag Jewellers Ltd. v. Alarm Factory Inc., 2016 ONSC 3542, per Diamond J.[4210]

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3. QUANTUM/DAMAGES ISSUES

   A. Ontario Court of Appeal upholds zero jury damage award regarding a crumbling skull plaintiff.

   Jugmohan v. Royle, 2016 ONCA 827 [4203]

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4. PRACTICE ISSUES

   A. Successful application to dismiss the plaintiffs' action pursuant to Rule 4.33 on the basis that three or more years had passed without a significant advance in the action and the new 3-year drop dead Rule applies retroactively.

   Berlinic v. Peace Hills General Insurance Co., 2016 ABQB 104, per Schlosser, Master [4208]

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   B. The Plaintiff did not show a...