Limitation Periods in Actions Against Police

The Court of Appeal recently upheld a motions court judge's decision granting summary judgment in an action against police based on an expired limitation period .

In Cassidy v. Belleville, 2015 ONCA 794, the plaintiff alleged she was stopped by police in August 2009, who informed her she was driving a stolen vehicle and confiscated the car, forcing her to walk home.  She alleged she was pregnant at the time and the incident caused medical complications. She wrote to a lawyer six days after the incident asking whether she should commence a civil action but did not pursue a lawsuit at that time.  Approximately one month later (September 2009), she made a complaint to the Belleville Police and received a reply in June 2011. The complaint was partially upheld in November 2012.  The plaintiff waited until October 2013 before commencing her action, four years after the incident.  She argued she did not discover her claim until after the complaint was upheld as she was unaware of the standard of care until that time.

The motions judge disagreed, as did the Court of Appeal.  Section 5(2) of the Limitations Act provides a presumption that the limitation period begins to run the date of the incident unless the contrary is proven and there was nothing to rebut the presumption.  Expert evidence was not needed to discover the claim; the plaintiff was aware of the offending conduct, the identity of the offender and the nature of her injuries from the time of the incident.  The results of the complaint investigation may have provided additional information but were not necessary to trigger the limitation period.

Cassidy is of assistance in police actions, but may also extend to other circumstances where plaintiffs have attempted to extend limitation periods by waiting on administrative decisions.

Instructing Letter Does Not Have to be Produced in Advance of Examination

One issue that arises periodically in personal injury cases is whether a party must produce counsel's letter of instruction to its expert.  In Nikolakakos v. Hoque, 2015 ONSC 4738 (S.C.J.), Master Graham considered whether the defendant was required to produce the letter of instruction to the plaintiff in advance of the plaintiff attending an independent medical examination.

Master Graham held that the instructing letter does not have to be produced until the party elects to call the expert at trial.  Even after the report is served, the instructing letter does not have to be produced pending the defendant's decision whether to call the expert at trial.  As a result, the defendant did not have to produce the letter of instruction in advance of the independent medical examination.

What Is Insurance Really For?

Thanksgiving has almost arrived. This is the time of year when we sit back and reflect on all the things that we are thankful for. What immediately comes to mind?

For most of us its things like our family, our home, and our good health. And guess what they have in common? All of these things are what insurance protects!

That’s why it is so important to me that my clients have excellent insurance coverage.

It’s not just about having an ID card in your car so you don’t get a ticket or fulfilling your mortgage company’s minimum loan requirements.

Insurance is there to make sure that if the worst happens, you can recover from it. It might not be easy, but we’re here to ease the financial burden after your house burns own or a loved one passes away.

All of those TV commercials that just tell you to find the cheapest rate are completely wrong! Of course no one wants to pay more than they have to, but it’s not the most important part of the equation.

Rather than looking for a cheap bare bones policy, take the time to interview and meet with local agents. See who is looking for the best coverage and truly meeting your needs while keeping the rate affordable. Ask about how they handle claims and if they do annual policy reviews.

This Thanksgiving, our agency is extremely thankful for all of our wonderful clients. If you need a local agent to look out for your most prized possessions, give us a call at

888-565-2212 today for a free no-obligation quote. Bryan Insurance is Long Island’s leading homeowners insurance agent.

Covenant to Insure Did Not Bar Crossclaim

A recent decision looked at whether a contractor could crossclaim against a subcontractor or whether the crossclaim was barred as a result of the covenant to insure between the parties.  In William Osler Health Centre v Compass Construction Resources Ltd., 2015 ONSC 3959 (S.C.J.), the contractor, Compass, was hired by the plaintiff to do kitchen renovations at the Hospital and subcontracted part of the project to Black Creek.  The contract between the Hospital and Compass contained a covenant to insure which required Compass to obtain all risks property insurance.  The covenant to insure contained reference to the terms and conditions of IBC 4042.  IBC 4042 contains language that defines the “Project Site” as the “property in the course of construction”.

 

Black Creek argued that under the principle of tort immunity, when one party to a contract covenants to obtain insurance for another party, this signifies an assumption of the risk and the party obtaining the insurance cannot sue the other party for the losses which are insured. Compass accepted that under the principle of tort immunity, it could not crossclaim for damages to the kitchen, but argued that it could maintain a crossclaim for damages to the rest of the hospital. 

 

The Court found that Compass’ covenant to insure did not extend to the entire Hospital and only covered the Project Site (namely, the kitchen). Thus, the Court held that Compass could crossclaim against Black Creek for damages to the Hospital outside of the kitchen, and was not barred by the covenant to insure.  If Compass’ insurance were intended to cover the entire hospital, the premiums and coverage limits would be much higher and closely resemble that of the Hospital’s; Justice Firestone held that it stood to reason that the covenant to insure only covered the Project Site and not damage done to the entire hospital.

 

Top Causes of Fine Art Damage

Whether you’ve spent a lifetime acquiring a world-class collection, inherited family heirlooms or simply purchased objects to decorate a home, the condition of each piece will impact its financial worth.

Surprisingly, most art-related losses are caused by circumstances that are under your control to manage (or avoid). Along with distinct insurance coverage, a better understanding of the prevalent risks can help you manage your collection more effectively over time. Consider the following: 

1. Installation
   Inadequate installation is one of the most frequent causes of damage to private collections, so whenever possible, valuable works should be installed under the guidance of a professional art handler. It is always good practice to use two hooks and two wires for hanging pictures and mirrors, as the redundancy adds stability and decreases likelihood of loss should one hook fail.
2. Placement
   When deciding on where to install your art, avoid accidental damages by looking beyond the aesthetics of your home by considering the location of doors and pathways. Do not place objects in areas that are highly trafficked, above fireplaces, or beneath air vents. To limit long term damage caused by the harmful effects of sunlight, place objects out of direct sunlight and consider installing UV-filters on your windows.
3. Environment
   Drastic fluctuations in temperature and humidity can have a negative long term effect on art and antiques as materials dry out or expand and contract over time. As much as possible, maintain a consistent temperature and relative humidity (RH) in rooms containing works of art. In homes with climate control systems, the environmental levels best suited for a general collection are 68-72 °F and a relative humidity of 45–55%. Consult a conservator for specific environmental recommendations for your collection.
4. Theft It is no secret that works of art are attractive targets for thieves, although surprisingly, most art thefts are crimes of opportunity that easily could have been prevented.  Secure the “envelope” of your home with a central station burglar alarm with motion sensors and contacts on all doors and windows. For jewelry and other portable valuables, install a safe that is bolted in to the fabric of your home.
5. Fire
   Every minute a fire burns it doubles in size, which means that early detection is critical to saving lives and property. To best protect your home, family and collection, install a centrally-monitored smoke detector in every area of your home and keep annually inspected fire extinguishers handy. Monitored heat detectors can be used in kitchens and unfinished basement areas.
6. Storage Ideally, all items that are not installed in your home should be stored off-site in a professional climate-controlled facility. If that is not feasible, dedicate one room in your home for art storage only. To protect items from leaks and spills, never store anything on the floor, even temporarily. If pictures need to be stacked, stack them front-to-front and back-to-back, alternating vertically and horizontally to minimize the chance of one pushing into another.
7. Emergencies Writing a collection-specific emergency plan will ensure that you and your service providers act efficiently and effectively to protect your collection before and after a catastrophe.  A standard plan includes: a priority list of items to be removed; a communication list with contact information; a list of tools and equipment needed; wrapping and handling instructions; the locations of gas, water, and electricity shut-offs, with instructions; training an emergency response team; and a conservation plan for the post-event period.
8. Documentation Maintaining up to date inventory records reduces the likelihood of mysterious disappearance and an inventory with images helps expedite the claims process in the unfortunate event of a loss. The format you use can be as simple as a comprehensive list, but we recommend entering descriptions and images into a secure computerized collection management database, with a copy stored off site.
9. Appraisals The value of your collection will increase over time, regardless of seasonal or annual trends. Since appraisals are used as the basis for insurance coverage, if a piece is damaged, lost or stolen, an outdated value could limit your ability to be fully compensated under your insurance policy. Typically, we recommend that appraisals be updated no less than every three to four years. Consult your appraiser to find out what time-frame is recommended for your collection.

At the Bryan Insurance Agency, we have risk management experts in high value homes and fine art collections. We are the leading insurance agents for home insurance in Long Island and New York. Contact us today to find out how to protect your priceless art collection. 888-565-2212 or www.bryanagency.com/contact 

Reprinted with permission from AIG Premier Client Group. Bryan Insurance Agency is a licensed agent of AIG Premier Client. For more information, visit AIG.com 

Loss Transfer and the Fault Determination Rules

The Court of Appeal recently considered the interplay of the Fault Determination Rules in a loss transfer context.

In State Farm Mutual Automobile Insurance Co. v. Old Republic Insurance Co. of Canada, 2015 ONCA 699 (C.A.), there was a multi-vehicle collision in which a Pepsi truck rear-ended a Dodge, which in turn rear-ended a Nissan.  Old Republic insured the Pepsi truck and State Farm insured the Nissan.  The driver of the Nissan collected accident benefits from State Farm, which in turn sought to be indemnified by Old Republic under the loss transfer provisions of the Insurance Act.  The issue on appeal was whether the Pepsi truck was only responsible for the initial collision with the Dodge or whether it was responsible for the entire chain reaction.

The Court of Appeal held that the Pepsi truck (and its insurer, Old Republic) was 100% responsible only for the collision between it and the Dodge, not the entire chain reaction.    As a result, Old Republic was not required to indemnify State Farm for accident benefits paid to its insured.

The Court's interpretation helps to clarify an area in which there was previously conflicting lines of case law.

Supreme Court Dismisses Westerhof Appeal

We previously blogged on Westerhof v. Gee, where the Court of Appeal held that non-party experts such as treating health practitioners may give opinion evidence formed in the course of treatment or based on observations formed outside of the litigation (such as accident benefits assessments).

The case was appealed to the Supreme Court of Canada.  On October 29, 2015, the Supreme Court dismissed the application for leave to appeal.  As a result, non-party experts will continue to be permitted to give opinion evidence without complying with r. 53.03, subject to the court's gatekeeper function.

The companion appeal in Baker v. McCallum was also dismissed.