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Issue 205


September 2015

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Who We Are Expertise Contact

In Brief


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For years Foster & Company has published its newsletter, In Brief, to assist insurance industry professionals in their efforts to keep informed of the latest developments in the law.

Hi <<First Name>>,

In this Month’s Newsletter, our first case is from the Ontario Court of Appeal and deals with whether an insured acted reasonably in relying on a motor vehicle accident report that stated that the Defendants were insured, when it was later revealed that the Defendants were in fact uninsured.

Our second case is a New Brunswick Court of Queen’s Bench decision dealing with the failure to mitigate by not following recommended treatments, the failure to wear a properly fastened seat beat and whether lump sum payments from a long term disability insurer is deductible from a motor vehicle accident claim.

Our final case deals with whether an insurer can be added as an Intervenor at the Ontario Court of Appeal where they failed to add themselves as a third party prior to trial, and also deals with a motion to remove a solicitor where one of the grounds of appeal placed the insurer’s interest above those of the insured.

We also congratulate our newest reader of the month, Andrew Brown from Travellers Canada in Halifax. If you want the chance to win some Foster & Company swag, simply click on any of the links to this month’s articles. You will be automatically entered into our monthly draw.



Foster & Company continues to be distinguished by A.M. Best Company as Recommended Insurance Attorneys.

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Plaintiff was Reasonable in his Reliance on Motor Vehicle Report that Defendant Vehicle was Insured 

Lingard v. Milne-McIsaac, 2015 ONCA 213
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Read time: 2 minutes (approx.)

By Erika Hachey

In October 2008, Timothy Lingard was rear-ended by a vehicle driven by Jessie Milne-MacIsaac and owned by Shawn MacIsaac. The attending police officer prepared a motor vehicle report which listed the defendant vehicle as being insured by Security National Insurance Company. 

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Plaintiff’s Damages Are Reduced for Failure to Mitigate and Failure to Wear a Properly Secured Seatbelt. Lump Sum Settlement of Long Terms Disability Payments are Deductible from Plaintiff’s Loss of Income Claim

O’Neill Jones v Chabot, 2015 NBQB 143 
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Read time: 3 minutes (approx.)

By Erika Hachey

The Plaintiff, Viola Marie O’Neill Jones was involved in a motor vehicle accident in June 2010 in which she suffered physical and psychological injuries, including frozen shoulder and post-traumatic stress disorder. She also suffered chronic pain in her neck, shoulder, back, right arm, right leg, and foot. 

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Insurer’s Motion to be Added as Intervener Denied and Defence Counsel Found to be in a Conflict of Interest Where Appeal Filed on Grounds that were in Conflict with Best Interests of Insured

Mallory v. Werkmann Estate, 2015 ONCA 71
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Read time: 3 minutes (approx.)

By Erika Hachey

In February 2005, Werkmann, Nemes, and Mihali went on a motorcycle ride where they reached excessive speeds over 240 km/hr. Tragically, Werkmann lost control of his motorcycle and struck a motor vehicle, driven by Robert Mallory, killing a passenger and severely injuring Mr. Mallory. 

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The information contained within In Brief is not intended as legal advice, but rather is general information on the law. If you wish to discuss legal matters or obtain the full text of cases, please contact Foster & Company. Our full disclaimer can be found here.

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