Defence & Indemnity - June 2016

1. INSURANCE ISSUES

   1. Where a party pleads equitable relief (such as rescission, estoppel or relief from forfeiture) with respect to an insurance policy, the claim cannot be heard by a jury

   Maynard v. Alberta Motor Assn., 2015 ABQB 564, per Pentalechuk, J.[4182]

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2. LIABILITY ISSUES

   1. Contributory negligence of a passenger will not be found by virtue of the passenger's knowledge that the driver only has a novice driver's licence without evidence that the passenger engaged in negligent acts or knew the driver was a poor or reckless driver

      Nahal v. Ram, 2016 BCSC 39, per Jenkins, J. [4184]

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      B.Under the Occupier's Liability Act (OLA) there is no duty to investigate and identify a patron for the purposes of a claim between the two patrons unless the occupier had done something to induce an expectation that it would conduct an investigation to assist one patron to sue another

      McPhail v. John Doe I, 2016 ABQB 76, per Robertson, Master [4185]

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   3. Both the legal/registered owner and lessor and the beneficial owner and lessor of a vehicle are vicariously liable for the lessee's vehicular negligence but only to the liability cap for lessors

      Graham (Litigation guardian of) v. Lemay, 2016 ONCA 55, per Pepall, J.A. [4187]

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3. QUANTUM/DAMAGES ISSUES

   1. Surveillance evidence significant in discrediting Plaintiff in large chronic pain case

      Bumstead v. Dufresne, 2015 ABQB 787, per Horner, J. [4186]

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   2. The Court overtly accepted the Plaintiff's expert testimony and criticized well-known defence experts with regard to whether the Plaintiff's injuries were minor and whether fibromyalgia can be caused by trauma

      Jones v. Stepanenko, 2016 ABQB 295, per Eidsvik, J. [4188]

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4. PRACTICE ISSUES

   1. The principles for extending the limitation period for filing Third Party Notices

   Condominium Corporation No. 0425636 v. Amyotte's Plumbing Ltd., 2015 ABQB 801, per Master Schulz [4183]

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5. SURETY AND BOND ISSUES

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