Brian Vail

Brian Vail

Field Law

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Defence & Indemnity - February 2017: IV. PRACTICE ISSUES B.

In an action by homeowners against a chimney sweep, it was held that deficiencies in the plaintiffs’ expert Investigation and reports deprived the court and the other trial experts from being able to determine what actually...more

3/14/2017 - Burden of Proof Canada Dismissals Expert Reports Fire Damage Homeowner's Insurance Lack of Evidence Property Damage

Defence & Indemnity - February 2017: IV. PRACTICE ISSUES A.

IV. PRACTICE ISSUES A. The doctrine of abuse of process does not preclude re-litigation of the issue of whether or not an individual was insured in a priority dispute between insurers in the face of that individual’s having...more

3/13/2017 - Abuse of Process Appeals Arbitration Auto Insurance Canada Cancellation Rights Car Accident Denial of Insurance Coverage Evidence Failure To Pay Harmless Error Insurance Litigation Notice Requirements Prior Conviction Priority Disputes Rebuttable Presumptions Statutory Accident Benefits Uninsured and Under-Insured Motorists

Defence & Indemnity - February 2017: III. QUANTUM/DAMAGES ISSUES

A. Regarding the defence of inevitable accident due to a medical condition, certain circumstances give rise to a presumption that the defendant drove negligently and the defendant needs expert medical evidence that causally...more

3/10/2017 - Burden of Proof Canada Car Accident Negligence Serious Health Conditions Summary Judgment

Defence & Indemnity - February 2017: II. LIABILITY ISSUES

1. The Motions Judge (Dow, J.) set aside the Default Judgment awarding the Plaintiff thrown away costs of $10,000.00 and issued a publication ban on consent of all parties.   a. The Court summarized the factors to be...more

3/9/2017 - Appeals Canada Default Judgment Motion to Set Aside the Verdict Online Videos Privacy Torts Public Disclosure of Private Facts

Defence & Indemnity - February 2017: I. INSURANCE ISSUES B.

B. The wording “as a result of a peril insured against” in an insurance policy will be interpreted to include damage that happens as a direct result of the insured peril (increased cost to bring a damaged building up to code)...more

3/8/2017 - Appeals Building Codes Canada Commercial General Liability Policies Exceptions Exclusionary Clauses Policy Exclusions Property Damage Storm Water

Defence & Indemnity - February 2017: I. INSURANCE ISSUES A.

I. INSURANCE ISSUES A. Where an insurer has failed to afford a defence to its insured and the insured is successful in bringing proceedings to enforce the insurer’s obligations, the court can and will award the insured a...more

3/6/2017 - Appeals Attorney's Fees Denial of Insurance Coverage Duty to Defend Indemnification Insurance Agents Insurance Brokers Insurance Litigation Litigation Fees & Costs Premises Liability Sanderson Orders

Defence & Indemnity - December 2016: V. SURETY AND BOND ISSUES

Alberta Court of Appeal confirms an obligee/trustee under labour and material payment bond has no legal duty to disclose the existence of such a bond to potential bond claimants until specifically asked about its...more

1/30/2017 - Breach of Duty Canada Claims Limitations Period Disclosure Requirements Dismissals Fair Notice Fiduciary Duty General Contractors Insolvency Labour and Material Bond Mechanics Lien Payment Bond Claims Subcontractors Trustees

Defence & Indemnity - December 2016: IV. PRACTICE ISSUES B.

The Plaintiff did not show a “want of diligence” in failing to take any proactive steps in discovering and naming the landlord of a nightclub as a defendant in a personal injury action five-and-a-half years after the...more

1/26/2017 - Appeals Canada Cause of Action Accrual Commercial Tenants Dismissals Due Diligence Landlords Limitations Act Negligence Occupiers Liability Act (OLA)

Defence & Indemnity - December 2016: IV. PRACTICE ISSUES

Successful application to dismiss the plaintiffs’ action pursuant to Rule 4.33 on the basis that three or more years had passed without a significant advance in the action and the new 3-year drop dead Rule applies...more

1/25/2017 - Canada Dismissals Drop-Dead Rule Fire Damage Insurance Claims Motion to Compel Property Damage Property Insurance Retroactive Application

Defence & Indemnity - December 2016: III. QUANTUM/DAMAGES ISSUES

A. Ontario Court of Appeal upholds zero jury damage award regarding a crumbling skull plaintiff. Jugmohan v. Royle, 2016 ONCA 827...more

1/24/2017 - Appeals Canada Car Accident Damages Evidence Jury Verdicts Preexisting Conditions

Defence & Indemnity - December 2016: II. LIABILITY ISSUES B.

B. Where a contract for security services explicitly provides that it is not a contract for insurance and contains an enforceable liability exclusion clause, the security provider will not be liable for the loss. ...more

1/23/2017 - Canada Commercial Insurance Policies Contract Terms Indemnification Clauses Meeting of the Minds Motion for Summary Judgment Policy Exclusions Security Guards Security Systems Theft Unconscionable Contracts Waiver of Liability

Defence & Indemnity - December 2016: II. LIABILITY ISSUES

New privacy torts of intrusion upon seclusion and public disclosure of private facts were supported in Canada. R. v. John Doe, 2016 FCA 191, per Ryer J.A, Boivin J.A. and De Montigny J.A....more

1/21/2017 - Appeals Breach of Contract Canada Canadian Charter of Rights and Freedoms Class Action Class Certification Evidence Intrusion Upon Seclusion Judicial Review Mail Marijuana Negligence Pleadings Privacy Torts Public Disclosure of Private Facts Right to Privacy Standard of Proof

Defence & Indemnity - December 2016: I. INSURANCE ISSUES B.

A vehicle owned by the insured or spouse, if insured, may be an “uninsured automobile” when taken without consent and therefore may be entitled to coverage under the O.P.C.F. 44R Endorsement as an “inadequately insured...more

1/19/2017 - Auto Insurance Canada Final Judgment Interlocutory Appeals Jurisdiction Summary Judgment Uninsured and Under-Insured Motorists Without Consent

Defence & Indemnity - December 2016: I. INSURANCE ISSUES A.

A. An insured killed by a thief driving the insured’s vehicle is entitled to coverage under his S.P.F. 44 Endorsement, notwithstanding that one part of the definition of “inadequately insured motorist” purports to exclude...more

1/18/2017 - Additional Insured Endorsements Auto Insurance Canada Indemnity Claim Theft Uninsured and Under-Insured Motorists Wrongful Death

Alberta Government Updating 2004 Auto Insurance Reforms

The Alberta government has announced that it is in the process of updating the regulations involved in the 2004 auto insurance reform, namely the Minor Injury Regulation, Alta Reg 123/2004; the Diagnostic and Treatment...more

7/29/2016 - Auto Insurance Canada Car Accident Damages Insurance Reform Medical Examinations Pain and Suffering Public Comment

Defence & Indemnity - June 2016: V. SURETY AND BOND ISSUES

Obligee's claim against surety can survive despite Obligee's claim against principal being unenforceable as a result of wording of completion agreement - HOOPP Realty Inc. v. The Guarantee Company of North America, 2015...more

7/18/2016 - Appeals Canada Construction Contracts Motion To Strike Performance Bonds Pleadings Suretyships

Defence & Indemnity - June 2016: IV. PRACTICE ISSUES

The principles for extending the limitation period for filing Third Party Notices - Condominium Corporation No 0425636 v Amyotte’s Plumbing, 2015 ABQB 801, per Master Schulz...more

7/16/2016 - Construction Defects Limitation Periods Plumbing Third-Party Liability

Defence & Indemnity - April 2016: III. QUANTUM/DAMAGES ISSUES: B.

The Court overtly accepted the Plaintiff’s expert testimony and criticized well-known defence experts with regard to whether the Plaintiff’s injuries were minor and whether fibromyalgia can be caused by trauma Jones v....more

7/13/2016 - Admissible Evidence Canada Car Accident Expert Testimony Expert Witness Remedies

Defence & Indemnity - June 2016: III. QUANTUM/DAMAGES ISSUES A.

A. Surveillance evidence significant in discrediting Plaintiff in large chronic pain case - Bumstead v. Dufresne, 2015 ABQB 787, per Horner, J. [4186] ...more

7/11/2016 - Canada Car Accident Credibility Evidence Expert Witness Lost Wages Pain and Suffering

Defence & Indemnity - June 2016: II. LIABILITY ISSUES #3

Both the legal/registered owner and lessor and the beneficial owner and lessor of a vehicle are vicariously liable for the lessee’s vehicular negligence but only to the liability cap for lessors. Graham (Litigation...more

7/8/2016 - Auto Insurance Auto Lease Canada Car Accident Car Dealerships Commercial Vehicles Dismissals Excess Policies Joint and Several Liability Liability Caps Negligent Entrustment Principal-Agent Issues Traumatic Brain Injuries Vicarious Liability

Defence & Indemnity - June 2016: II. LIABILITY ISSUES #1

Contributory negligence of a passenger will not be found by virtue of the passenger’s knowledge that the driver only has a novice driver’s licence without evidence that the passenger engaged in negligent acts or knew the...more

7/6/2016 - Canada Car Accident Contributory Negligence

Defence & Indemnity - June 2016: I. INSURANCE ISSUES

A. Where a party pleads equitable relief (such as rescission, estoppel or relief from forfeiture) with respect to an insurance policy, the claim cannot be heard by a jury Maynard v. Alberta Motor Assn., 2015 ABQB 564,...more

7/6/2016 - Bench Trial Canada Car Accident Commercial Insurance Policies Counterclaims Equitable Relief Judicial Discretion Material Misrepresentation Void Contracts

Teacher And School Civil Liability For Sexual Abuse Of A Student

B. (A.) v. D. (C.), [2011] B.C.J. No. 1087, 2011 BCSC 775, per Gray J. [3851] The plaintiff AB sued a teacher CD and the Board of School Trustees of District EF with respect to alleged sexual abuse she claimed to have...more

11/17/2014 - Canada Public Schools School Districts Sexual Abuse Teachers

The "Teachers' Defence": Section 43 in the Modern World

Originally published in Leadership Update, Volume 9 - Number 3. An increasing number of teachers are being criminally charged with assault in Alberta. Sometimes these allegations are exaggerated or maliciously brought...more

1/18/2013 - Assault Corporal Punishment Teachers

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