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Category: Insurance Law Page 1 of 2

The Availability of Relief from Forfeiture for Non-Payment of a Life Insurance Premium

Case considered: Community Credit Union Ltd. v. Transamerica Life Canada, 2009 ABQB 704

PDF version:   The Availability of Relief from Forfeiture for Non-Payment of a Life Insurance Premium

This is a well-researched and clearly written decision by Justice Keith Yamauchi on an unresolved issue in insurance law. The question is whether relief from forfeiture is available when a life insurance policy lapses for non-payment of premiums. Since 1994, the usual approach of the courts confronted by this question has been to merely assume relief from forfeiture was available and decide on the easier basis that, even if it was available, it was not appropriate to grant it on the facts of the case before them. In this decision, however, Justice Yamauchi decided the legal point and determined that relief from forfeiture was not available. This decision has several points of interest from a property law perspective, which is the perspective I am adopting for these comments. The aspects of this decision that interest me the most are two. The first is the perceived tension between statutorily regulated life insurance contracts and the body of law known as equity, also known as the classic tension between certainty and justice in the individual case. The second is the sharp line drawn, obliterated, and then re-drawn between property and contract.

Supreme Court Denies Equality Claimants Leave to Appeal Insurance Cap

By: Jennifer Koshan

PDF Version: Supreme Court Denies Equality Claimants Leave to Appeal Insurance Cap

Case Commented On: Morrow v Zhang, 2009 ABCA 215, leave to appeal dismissed by S.C.C. December 17, 2009

The Supreme Court has denied Peari Morrow and Brea Pederson leave to appeal the Alberta Court of Appeal ruling that upheld the province’s cap on non-pecuniary damages for soft tissue injuries incurred in motor vehicle accidents. Previous posts on ABlawg critiqued the Court of Appeal decision for (1) failing to apply the new approach to equality rights set down in R v Kapp, 2008 SCC 41, (2) improperly applying the old approach to equality rights from Law v Canada, Minister of Employment and Immigration), [1999] 1 S.C.R. 497, (3) giving insufficient weight to evidence of stereotyping in relation to victims of minor tissue injuries, and (4) giving too much weight to the purpose of the law at the expense of its effects on those victims (see Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries and More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries).

Umpires: Qualifications, etc.

Cases Considered: Matti v. Wawanesa Mutual Insurance Company, 2009 ABQB 451

PDF version:  Umpires: Qualifications, etc.

This is a post about insurance, not baseball. Umpires decide certain types of financial disputes between property owners and insurance companies in particular circumstances. Insurance claims involve umpires when the insured and insurer disagree about the value of damaged or destroyed property or the amount of the insured’s loss. The insured and the insurer each appoint an appraiser and the appraisers appoint an umpire. If the appraisers cannot agree on how to resolve the dispute, then the two appraisers submit their arguments to the umpire. The decision of two of those three persons decides the matter, which means, in effect, that the umpire decides. If the appraisers cannot agree on an umpire, then the insured or insurer can ask the court to appoint one. What qualifications should these decision-makers have? That question has not been the subject of much judicial consideration in Canada and so this decision by Mr. Justice W.P. Sullivan is a welcome one. But it still leaves open many other questions about insurance appraisals; they are a rather ill-defined process.

More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries

By: Jonnette Watson Hamilton

PDF Version: More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries

Case Commented On: Morrow v Zhang, 2009 ABCA 215, overturning 2008 ABQB 98

In her post critiquing the Alberta Court of Appeal decision in Morrow v Zhang, Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries, Professor Jennifer Koshan asks, “Did the Court actually apply the new approach to section 15 of the Charter?” I would like to focus on that question and raise a few additional and related matters. I agree with Professor Koshan that the Court of Appeal seems to apply the old test from Law v Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 in its section 15(1) analysis in Morrow v Zhang. However, they do so without a focus on human dignity, which seems to result in the application of the Law test in a very formalistic way, rather than substantively. Does it matter? I think that the use of the original Law test, complete with a focus on human dignity, could have rather easily resulted in an affirmation of the trial judge’s decision. Alternatively, and perhaps more importantly, I think that an application of the test in R v Kapp, 2008 SCC 41, could also have resulted in an affirmation of the trial judge’s decision had that application really focused on stereotyping.

Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries

By: Jennifer Koshan

PDF Version: Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries

Case Commented On: Morrow v Zhang, 2009 ABCA 215, overturning 2008 ABQB 98

Last February, Associate Chief Justice Neil Wittmann of the Alberta Court of Queen’s Bench found that the $4000 cap on non-pecuniary damages for soft tissue injuries violated the equality rights of motor vehicle accident victims, and could not be justified as a reasonable limit under section 1 of the Charter (see my earlier post on this case: Not on Their Backs: Cap on Damages for Soft Tissue Injuries Struck Down; Court Denies Stay of Remedy Pending Appeal). This decision was overturned by the Alberta Court of Appeal on June 12, 2009. Writing for a unanimous Court, Justice Patricia Rowbotham (with Justices Elizabeth McFadyen and Clifton O’Brien concurring) held that when viewed in the context of the overall scheme of insurance reforms, the cap did not violate section 15 Charter equality rights. In addition to its significance for the auto insurance industry and Alberta drivers, this decision is of interest as the first judgment of the Alberta Court of Appeal to consider section 15 since the Supreme Court of Canada set out a new approach to equality rights in R v Kapp, 2008 SCC 41.

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