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Retail Employee May Sue Employer And Supervisor Despite Having WSIB Coverage

Friday, February 27th, 2015

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Retail Employee May Sue Employer And Supervisor Despite Having WSIB Coverage – ILSTV.com

A retail employee who helped pursue a shoplifter, in violation of the employer’s workplace violence policy, was not entitled to WSIB benefits and could sue the employer and a supervisor in the courts for her injury.

The employee was standing outside the grocery store, where she worked, on her break. The supervisor, who had just finished his shift, followed a suspected shoplifter to his van.  The employee also followed.  The supervisor confronted the shoplifter who accelerated away and ran over the employee with both his front and rear driver-side wheels.  The employee was hospitalized and had not yet returned to work.

The employee sued the employer and the supervisor seeking damages.  The employer applied to the Workplace Safety and Insurance Appeals Tribunal for a declaration that the employee’s right to sue was taken away by the Workplace Safety and Insurance Act because she had Workplace Safety and Insurance Board coverage.

The WSIAT held that the employee’s injury did not arise out of and in the course of her employment.  It was important that the employee, in participating in the confrontation of the shoplifter, had violated both the employer’s “Non-Pursuit Policy” and Workplace Violence Policy which prohibited most employees from pursuing shoplifters.  Further, she was on a break at the time of the incident.  Pursuing shoplifters was not one of her duties and was not even incidental to her duties.  Her pursuit of the shoplifter was of no benefit to the employer because it violated company policy and made her unavailable to return to her regular duties.  For similar reasons – plus the fact that he had finished his shift – the supervisor was found not to be in the course of his employment at the time of the accident.

As such, the employee was entitled to sue both the employer and the supervisor in the courts.

It is interesting to note that the employee’s own misconduct (violating the company’s non-pursuit policy) was one of the factors that took her “out of the course of” her employment and permitted her to sue the employer instead of claiming WSIB benefits.


Passenger Found 40% At Fault For Riding In Over-Crowded, Speeding Vehicle

Friday, February 27th, 2015

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Passenger Found 40% At Fault For Riding In Over-Crowded, Speeding Vehicle – ILSTV.com

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, largely rejecting a personal injury claim from a Plaintiff who sustained modest injuries in a 2009 roll-over collision.

In today’s case (Wormald v. Chiarot) the Plaintiff was 15 year old passenger in the Defendant’s vehicle at the time of the collision.  The Defendant had a Novice licence and had 9 passengers in her vehicle ‘far exceeding its designed capacity’.  The vehicle’s passengers encouraged the driver to speed, who did so and ultimately lost control of the vehicle, rolling several times coming to a stop in a ditch.

The Plaintiff sued for damages arguing she suffered serious injuries and sought approximately $250,000 in damages.  The Plaintiff’s claim was largely rejected with the Court noting that the Plaintiff’s evidence was not entirely reliable.

The Court assessed damages for the Plaintiff’s scars, bruises, scrapes and cuts at $8,000 and then reduced these by 40% due to the Plaintiff’s contributory negligence.  In reaching this deduction Mr. Justice Funt provided the following reasons:

[52] In assessing Ms. Wormald’s contributory negligence, the Court has considered that she knew that:

(a) Ms. Chiarot had a novice licence;

(b) Ms. Chiarot had been drinking, contrary to her novice licence;

(c) Ms. Chiarot had more passengers in the vehicle than was allowed by her novice licence;

(d) the vehicle had more occupants in it than it was designed to carry;

(e) over the course of the night in question, she had several opportunities to remove herself from the situation but did not do so;

(f) she sat in an area of the vehicle where she knew there were no seatbelts; and,

(g) the other occupants planned to throw eggs at people from the moving vehicle (with the reasonable expectation that the vehicle might be chased).

[53] With respect to Ms. Wormald’s failure to wear a seatbelt, the Court notes that she was not thrown from the vehicle. There was no evidence presented that her injuries would have been any different if she had been wearing a seatbelt. Accordingly, the Court will ignore this factor in assessing Ms. Wormald’s contributory negligence based on the rule in Koopman v. Fehr (1993), 81 B.C.L.R. (2d) 145 (BCCA).

[54] The Court has also considered Ms. Chiarot’s involvement. She would have known everything Ms. Wormald knew regarding the situation and, moreover, as the driver of the vehicle, would have had control of the situation. Accordingly, Ms. Chiarot was at greater fault than Ms. Wormald. The Court finds Ms. Wormald to be 40% at fault.


Snow, ice and frozen pipes: Are you covered?

Thursday, February 26th, 2015

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Snow, ice and frozen pipes: Are you covered? – ILSTV.com

If a foot of snow causes your roof to collapse or if extreme cold temperatures cause your pipes to freeze, will your insurance policy cover the damage? It depends on whether your policy provides coverage for named perils or open perils. Here are some key things to know as you review your policy.

The Insurance Services Office (ISO) standard Homeowners forms and the equivalent American Association of Insurance Services (AAIS) forms list the weight of ice, sleet and snow as named perils–which means that damage from the weight of ice, snow or sleet to a building or property contained in a building is covered. Loss to awnings, fences, patios, pavements, swimming pool, foundations, retaining walls, piers, wharves or docks is excluded.

Roof cave-in

If personal property inside a building is damaged because the roof caves in under the weight of the snow, then coverage for damage from a collapse is triggered. The weight of ice or snow may cause a roof to sag (which is not considered a “collapse” under the homeowners forms) or gutters to pull away from the roof, leading to damage to personal property, which also would be covered.

Ice damming and snow melt

Ice damming—caused by the weight or mass of snow that has compacted and turned to ice—often causes water to back up under shingles or flow under eaves from clogged gutters. If the water stains walls and damages ceilings, there is coverage for the damage to the building because there is no exclusion for thawing. Further, resulting water damage to contents should be covered because the language of the policy covers the weight of the ice, snow or sleet that causes damage. The scope of the coverage may be broadened to the weight of ice as a proximate, not necessarily a direct, cause of loss.

Incorrect installation caused the leak

In some cases, the weight of the ice might cause roof or siding shingles to dislocate just enough to allow water to enter the house. If the leak is because the roof or flashing wasn’t installed properly or the roof is worn, your policy may not cover the cost to repair the roof. It may only cover the damage to the interior of the house and contents.

Remember that with named perils coverage, it’s left to the insured to prove that a covered peril was the cause of the loss. If you have a comprehensive homeowners policy instead of a broad form or special form policy, it’s up to the insurer to prove that the loss is excluded.

Frozen pipes burst 

Under the homeowner forms, in all situations—vacant, occupied or unoccupied—there is no coverage for freezing plumbing, heating, air conditioning or automatic fire protection or of a household appliance unless the named insured has taken precautions to maintain heat in the building, or shut off and drained systems and appliances.

This is often a problem with snowbirds who want to save on utility bills while they’re away. Generally keeping a thermostat set at around 55 degrees during the winter months should prevent your pipes from freezing, but the furnace may break down or there may be an extended power failure. If your home is going to be unoccupied for a long time, and you don’t want to keep the heat on, be sure to shut off the water supply and drain the system and appliances of water to avoid frozen pipes. Even better: have someone you trust check on the property, especially when the temperature has been extremely low for several days.

Damage from frozen tree branches

Generally, trees, shrubs, plants and lawns aren’t covered for damage by wind, hail, the weight of ice or snow, or any unnamed peril that would be covered under open perils coverage. If the tree or the branch falls on your house or garage, however, damage to the structure is covered.

Power failure from winter storm

In many parts of the Northeast during the winter of 2014 storms caused power failures that lasted for several days. Your homeowners policy may cover the cost of the food in your refrigerator and freezer, up to certain dollar limits, usually $500.

If you can’t stay in your home because of the power failure, some policies provide coverage for the expenses of a hotel and the cost of meals.

Review your homeowners policy to be sure you understand your coverage, and take precautions. If you can do so safely, shovel large accumulations of snow off your roof and unclog gutters. If you can’t do so yourself, you may be able to find a contractor to remove the snow for you. And think positive: Spring officially begins on March 20.


Flood of flood insurance on horizon

Wednesday, February 25th, 2015

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Flood of flood insurance on horizon – ILSTV.com

By: Kevin Rollason | Winnipeg Free Press

You can buy insurance to protect your home against a fire, but not against a rush of water coming across your lawn.

That will change later this year for many Canadians.

Aviva Canada is set to become the first insurance company in the country to sell coverage for damage caused by overland flooding.

Alison Steele, a Aviva spokeswoman, said Ontario and Alberta homeowners will be the first in the country to be able to buy the coverage in May, followed by the other provinces through the year.

Steele said Manitobans may be able to buy the coverage starting in July.

“It has traditionally been considered not possible to cover,” she said on Monday.

“This covers a torrential rainfall or if a river or a lake overflows.”

Steele said she couldn’t say yet which areas of Winnipeg and Manitoba might be included or excluded because the company is still looking at flooding topographical maps.

Steele said across the entire country, “five per cent (of homeowners) are in high-risk zones.”

Steele said it’s still not known how much the coverage will cost, but Aviva is committed to making it “affordable”.

Rita Bartmanovich, who owns a market garden business south of the city, and whose house and business were destroyed in the Flood of the Century in 1997, said she doesn’t think it will benefit her or anyone around her.

“I can almost predict they won’t do it for the Red River Valley,” said Bartmanovich, whose house and buildings have been rebuilt and surrounded by a several-metres high dike.

“I really don’t think they will ever sell insurance out here. But at least 70 per cent of the houses around here are either behind an 18- or 25-foot high dike or built on top of a hill 20-feet high. We wouldn’t have rebuilt our house until we knew we could make the dike even higher than the flood waters.

“I guess we’ll have to wait and see.”

David Schioler, chief executive officer of the Insurance Brokers Association of Manitoba, said the insurance industry is excited about the new coverage. He predicts other Canadian insurance companies will now follow Aviva’s lead.

Schioler said he doesn’t know how much the flood coverage might cost, but it could be around $1,000 per year.

“If people are aware of the risk, they’ll pay a little extra.”

Schioler said the new flood coverage comes in the wake of billions of dollars worth of flood damage faced by homeowners in Alberta and Toronto in 2013.

“They are the first in the market with this,” he said.

“Aviva believes if you can price it you can cover it and if you cover it you can price it,” Schioler said.

“Most people aren’t aware of what coverage they have until they find out they don’t. They only find out when they have a catastrophe.

“Good for Aviva for coming forward and starting the game.”

Steele said homeowners will also need to buy coverage for sewage backup in order to purchase the overland flood insurance.


$80,000 Non-Pecuniary Assessment Following Chronic Injuries From 7 Collisions

Friday, February 20th, 2015

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$80,000 Non-Pecuniary Assessment Following Chronic Injuries From 7 Collisions – ILSTV.com

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a Plaintiff who had the misfortune of being involved in 7 collisions.

In today’s case (Sediqi v. Simpson) the Plaintiff was involved in seven collisions from 2010-2013.  He was not at fault for any of these.  He suffered a variety of injuries, some of which lingered to the time of trial.  In assessing non-pecuniary damages at $80,000 Madam Justice Fisher made the following findings and provided the below reasons:

[78] I find that the plaintiff suffered soft tissue injuries in his neck, right upper back and shoulder and lower back as a result of these accidents (with the exception of accident #4, which appears to have been limited to the neck and upper back or shoulder). He had a pre-existing rotator cuff tear in his right shoulder that was aggravated by each successive accident, as well as pre-existing carpal tunnel syndrome (aggravated by accidents #5 and 6) and a degenerative spine condition (aggravated by accidents #6 and 7). He also suffered from headaches from accidents #1, 4, 5 and 7, and the pain resulting from all of these injuries has affected his mood and contributed to his feelings of sadness. He was unable to work for a week after accident #4, for about four weeks after accident #5 as well as a month of reduced hours, for about three weeks after accident #6 as well as further weeks of reduced hours, and for three weeks after the last accident followed by several months of reduced hours.

[79] The plaintiff is a 51 year old man who prides himself as a person who works hard for his family. He has been the unfortunate victim of seven accidents, which caused injuries that have affected him cumulatively. I consider the cumulative effect of these injuries to be an important factor.

[80] The plaintiff continues to experience pain symptoms more a year following the last accident, particularly in his right shoulder and the right side of his back. He has problems sleeping and experiences low moods and feelings of sadness. He has changed from a good natured, positive individual to one who is less jovial, less patient of others, and at times argumentative. He has had some limitations in his physical activities at home and at work. Evidence from his wife and from Mr. Poirier and Mr. Murray confirms this. He does little at home and has difficulty carrying heavy objects at work.

[81] The plaintiff has tried physiotherapy, exercise and various kinds of pain medication but he is not a physically active person. His prognosis is guarded. Considering how long he has been in pain, it is likely to continue. However, his symptoms should improve to some extent with proper management, which includes physical exercise…

[89] In general, I found the cases cited by Mr. Wilson to involve injuries less severe than those in this case, either due to shorter periods of pain symptoms or reductions due to contingencies that do not apply here. Not surprisingly, none of the cases cited by either counsel involved plaintiffs suffering the cumulative effect of injuries from seven accidents. In my view, general damages appropriate in a case like this range from $50,000 to $90,000. Taking into account the plaintiff’s pre-existing conditions (which as I said before do not require a significant reduction), I would assess a fair award here to be $80,000.


Top 10 Most Expensive Cities For Car Insurance In Ontario

Wednesday, February 18th, 2015

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Top 10 Most Expensive Cities For Car Insurance In Ontario – ILSTV.com

It’s no secret that Ontario has the highest auto insurance rates in the country. New research from KANETIX.ca shows just how much these auto insurance rates vary across the province.

TORONTO, Feb. 17, 2014 /CNW/ – KANETIX.ca has determined the top 10 cities in Ontario with the highest average annual car insurance rates, most of which were found to be located in and around the Greater Toronto Area.

A number of factors go into determining a driver’s auto insurance rate, one of which is where they live.

“Urban areas tend to have higher insurance rates because there are more cars on the road, higher frequency of accidents and greater severity,” says Janine White, VP of Marketplaces. “Insurers set their premiums based on claims and actuarial data from a given region. These areas had the highest incidence of claims so this is reflected in the premiums.”

In addition to congestion, the type of vehicle you drive, the likelihood of theft, and your personal driving record also influence your rates, among other variables.

Brampton has the highest auto insurance rates in Ontario with an average of $2,393 per year, 46 per cent more than the provincial average of $1,538. Woodbridge and Vaughan followed, with annual auto insurance rates averaging$2,342 per year.

Top 10 Most Expensive Cities For Car Insurance In Ontario

Rank

City

Avg. Annual

Insurance Cost

Difference From

ON Average

1.

Brampton

$2,393

+ 44%

2.

Woodbridge

$2,342

+ 41%

3.

Vaughan

$2,342

+ 41%

4.

Toronto

$2,017

+ 27%

5.

Mississauga

$1,998

+ 26%

6.

Hamilton

$1,987

+ 26%

7.

Thornhill

$1,884

+ 20%

8.

Markham

$1,829

+ 17%

9.

Richmond Hill

$1,755

+ 13%

10.

Ajax

$1,718

+ 11%

Click here to read more about the top 10 most expensive cities for car insurance in Ontario.

The Cheapest Cities for Car Insurance in Ontario

Belleville, Kingston and the towns of Cobourg and Napanee were found to have the cheapest auto insurance rates, averaging $1,014 per year, a whopping 81 per cent lower than Brampton.

How The Average Annual Car Insurance Rates Were Determined

The data was aggregated using KANETIX.ca’s free online tool Insuramap, which lets users compare auto insurance rates across the province according to postal code. All averages are based on a 35-year-old driver with a clean driving record. Insuramap is available across Ontario, Alberta, Quebec, New Brunswick, Nova Scotia, and Prince Edward Island.


IBC raises concerns about extent of Uber coverage

Thursday, February 5th, 2015

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IBC raises concerns about extent of Uber coverage – ILSTV.com

Betsy Powell City Hall Bureau | thestar.com

Fall.Driving

While Uber Canada assures the public it aims to offer the safest ride on Toronto’s roads, the country’s insurance lobby fears the company might not provide adequate insurance protection.

“It’s like Santa Claus — you hope it exists but you’re kind of skeptical,” said Pete Karageorgos, director of consumer and industry relations for the Insurance Bureau of Canada.

The insurance bureau’s concern revolves around personal and commercial insurance.

Licensed Toronto taxis need commercial insurance, a more comprehensive and costly form of coverage than the personal insurance carried by most drivers. The bureau says it’s unclear whether UberX drivers — those who use their own cars to pick up fare-paying customers for rides arranged through the company’s smart phone app — are required to have commercial insurance.

What Uber Canada will say is this: If an accident occurs during an UberX trip, Canadians can “rest assured” passengers, pedestrians and other motorists are “well covered” by commercial auto insurance in addition to any insurance coverage maintained by the driver, Uber Canada spokesman Xavier Van Chau wrote in email.

“We are confident our insurance model will provide coverage as it does in every jurisdiction where we operate.”

Van Chau’s email said Uber’s insurance policy is “proprietary” and therefore not public. He did not respond to the Star’s request to clarify if it is Uber’s policy that drivers have commercial insurance.

But he said every UberX ride is backed by $5 million of contingent auto liability insurance covering bodily injury and property damage.

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The coverage is “far greater” than standard requirements for taxi and limo insurance in Canada and is underwritten by insurance company A.M. Best, he wrote.

Karageorgos said Uber’s response to questions about its insurance policies is filled with “holes.”

If indeed an UberX driver gets into an accident and does have a commercial insurance policy, “then there’s no problem, it’s like being in a regular cab. But if they’re operating their vehicle as a cab and it’s not insured the way it should be, then there’s likely going to be some challenges.”

Uber declined to say how many Torontonians are working for them. The company’s website invites drivers interested in earning extra cash to apply for an UberX position if they have a mid-size or full-size four-door vehicle, in excellent condition. Applicants must be “at least 21 years old and possess a personal license and personal auto insurance.” The website also stipulates Uber “does not provide transportation or logistics services or function as a transportation carrier.”

Toronto taxis are required to have commercial coverage and carry a minimum of $2 million in liability insurance. An owner or driver has 10 days to notify the city if there is any change to the policy.

The city cited inadequate insurance that “might not provide essential coverage to drivers, passengers and others in the event of accidents,” as one of the reasons it is seeking an injunction for Uber to stop its operations here. A court date is scheduled for May.

Karageorgos said the way things stand he would choose a licensed cab over an UberX vehicle.

“Because of how they’re regulated through the municipality, there are some checks and balances in place that make me feel more comfortable,” he says.

If an accident happens and the driver isn’t properly insured, “I can go after the taxi company or the municipality that oversees them so there are other steps I can pursue.”

As Uber spreads into Canada, it has hit other bumps in the road.

Two UberX drivers in Montreal had their cars impounded by police in recent weeks.

“They do have their cars now,” said Jean-Nicolas Guillemette, general manager of Uber Montreal. “We will always help our partners, financially, psychologically.”

Guillemette said the seizures came at the request of the Montreal Taxi Bureau, the city agency that oversees the taxi industry. He declined to say what fees or fines the drivers faced, referring calls to Montreal city officials.

“We have had tens of thousands of rides since we started operating in October 2014, and we have only had two cars seized. I don’t see it as a threat for drivers,” Guillemette said.

Calls to the city of Montreal were referred to the Montreal Taxi Bureau, which did not return calls.

Tammy Robbinson, a spokeswoman for the city of Toronto, said the city does not have the power to impound cars for licensing bylaw infractions.

In December, two MPPs introduced separate private member’s bills to revamp the Highway Traffic Act and stiffen penalties for those operating illegal taxis.

Liberal MPP John Fraser said he introduced the legislation due to an issue with illegal taxis in his hometown of Ottawa. His bill calls for tougher penalties including fines of up to $30,000, demerit points and vehicle impoundment after a second offence.

“This bill is not about Uber,” Fraser said, noting it happened to coincide with Uber’s arrival in Ottawa. “The message of the bill is that public safety is paramount.”

He added that new technology is a new reality. “If you are driving people for hire then there are certain rules that have to be followed,” Fraser added.