• Defence & Indemnity
  • September 14, 2017 | Author: Brian Vail
  • Law Firm: Field Law - Edmonton Office
  • I. INSURANCE ISSUES

    A. The Court may refuse to apply an insurance policy provision where it would lead to an unjust result in the circumstances, per s. 545(1) of the Insurance Act or pursuant to the Court’s ability to relieve against forfeiture, per the Judicature Act, s. 10.

    Funk v. Wawanesa Mutual Insurance Company, 2017 ABQB 308, per Simpson, J. [4239]

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    II. LIABILITY ISSUES

    A. The case against a baseball team operating a beer tent at a tournament in commercial host liquor liability was dismissed after a summary trial despite the lack of a system to monitor patron consumption, because the evidence did not establish that the team had overserved the plaintiff or that he was exhibiting signs of intoxication, or that any intoxication contributed to the accident.

    Knibb v. Foran, 2017 ABQB 375, per Eidsvik, J. [4240]

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    III. QUANTUM/DAMAGES ISSUES

    A. The Court of Appeal upheld a trial judgment based on significant plaintiff credibility issues awarding less than $300,000 in the face of a $2,000,000 claim.

    Bumstead v. Dufresne, 2017 ABCA 122 [4236]

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    IV. PRACTICE ISSUES

    A. Litigation Releases can be wide enough to preclude future claims between the parties that were unknown and unanticipated when the Release was executed.

    Biancaniello v. DMCT LLP, 2017 ONCA 386, per Feldman, J.A. [4235]

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    B. A court held that the Defence was precluded from tendering social media evidence relating to the Plaintiff and relying on it at trial, notwithstanding that the Plaintiff may have been obligated to disclosure it herself, where the Defendant agreed to a procedure whereby the Defendant would access the social media sites (but disclose what it found to the Plaintiff) and the Defendant did not disclose what it found until the Plaintiff’s cross-examination at trial.


    Nemchin v. Green, 2017 ONSC 1403, per Corthorn, J. [4241]

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    V. SURETY AND BOND ISSUES

    A. Manitoba Court of Queen’s Bench finds CRA entitled to priority to “earned but unpaid” contract funds held by obligee (over the surety who had paid out labour and material payment bond claims after principal’s default)


    Manitoba Housing and Renewal Corp. v. Able Eavestroughing Ltd., 2017 MBQB 27 per Simonsen, J. [4237]

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