A View of Causation from the Supreme Court of Canada

The Supreme Court of Canada has provided some welcome guidance on the law of causation, with the release of its decision in Clements v. Clements, 2012 SCC 32.

As much as the Court insisted before that decision that there was only one test for factual causation, the cases actually articulated two tests: the “but for” test, and the “material contribution” test.

Proof that the Plaintiff’s damages would not have arisen “but for” the Defendant’s negligence has been the primary test for causation, but the Courts have continually stated that under certain circumstances, the Plaintiff can succeed by showing that the Plaintiff’s negligence “materially contributed” to the damages.

What that has meant, and when it applies has been the subject of some debate.

More »

Alberta Court of Appeal upholds cap on general damages

The Alberta Court of Appeal has upheld Alberta’s Minor Injury Regulations, capping general damages in motor vehicle accident litigation at $4,000.  The Court released its decision in Morrow v. Zhang, the litigation challenging Alberta’s Minor Injury Regulations, on June 12, 2009.

In the meantime, the ruling by the Nova Scotia Supreme Court in Hartling et al v. Nova Scotia is expected to be heard in the  Nova Scotia Court of Appeal in October 2009.

An interesting take on Alberta’s decision can be found here.

Actions against a bankrupt’s insurer can proceed notwithstanding denial of coverage

Hemeon v. District of West Hants, 2008 NSSC 234 examines the interplay between section 69.4 of Canada’s Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”), and section 28 of Nova Scotia’s Insurance Act, R.S.N.S. 1989, c. 231.

The BIA provides for an automatic stay of proceedings in all litigation against a person who makes an assignment in bankruptcy, but then permits that stay to be lifted if the applicant can demonstrate that it will be “materially prejudiced” by the stay, or that lifting the is “equitable on other grounds”.

The Insurance Act provides that if a person obtains judgment against another for which there is insurance, and execution against the judgment debtor is returned unsatisfied, then the judgment creditor can bring the same action against the insurer, and the insurer will be liable up to the face value of the policy.

Although the case is based on Nova Scotia legislation, most provincial insurance legislation contains provisions similar to those interpreted in this case.

More »

Would Australia’s “hot tubbing” approach to expert evidence work in Canada?

Legal Ethics Forum questions whether it would work in the United States.

Legal Ethics Forum’s Rob Vischer refers to a New York Times article published August 11, 2008. That, in turn, refers to a speech by Justice Peter McClellan of the Land and Environmental Court of New South Wales, Australia.

More »

Insured has a right to independent medical examiner’s handwritten notes

In a decision handed down February 1, 2008, the Federal Court of Appeal ruled that an insured sent for an independent medical examination by his long-term disability benefits insurer is entitled to access the medical examiner’s handwritten notes in a dispute as to the insured’s continued eligibility to receive benefits.

In Rousseau v. Canada (Privacy Commissioner), 2008 FCA 39 , the insured, Jacques Rousseau, had been receiving long-term disability benefits from Maritime Life.  A dispute arose as to his continued eligibility, and Maritime Life subjected Mr. Rousseau to an independent medical examination (IME) in accordance with the terms of its policy.  Dr. Jeffrey Wyndowe performed the IME.  The purpose and nature of the IME was explained to Mr. Rousseau, and he signed a consent form permitting disclosure of the doctor’s report to Manulife.

Based on the report, Manulife terminated Mr. Rousseau’s long-term disability benefits.

Manulife provided Mr. Rousseau with a copy of the report at Mr. Rousseau’s request, however it did not have access to the doctor’s notes.  Dr. Wyndowe refused to provide a copy of the notes to Mr. Rousseau.

Mr. Rousseau eventually applied to the federal Office of the Privacy Commissioner with respect to the doctor’s refusal, and the complaint was allowed, with the Commissioner recommending the release of the notes.  Dr. Wyndowe refused.

Mr. Rousseau applied further to the Federal Court Trial Division pursuant to s. 14 of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.  Mr. Justice Teitelbaum granted Mr. Rousseau’s application, and Dr. Wyndowe appealed to the Federal Court of Appeal.

Decary, J.A. reasoned that notes made by a doctor in the course of an IME made at the request of an insurance company falls within the purview of “commercial activity” by the insurance company and is therefore subject to the Act.   In addition, personal health information is a subset of “personal information”.  Notes taken by a doctor in the course of an IME are clearly personal health information, and therefore subject to disclosure upon application by the person about whom they pertain.