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Tuesday Morning Case Bites for February 19, 2019

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

Greenidge v Allstate Insurance Company, 2019 ABCA 52
Section B IME l Videotape

Taj v McIntosh, 2019 ABQB 69
Liability l Rear End Collision

Thiessen v Corbiell, 2019 ABCA 56
Dismissal for Long Delay l Application to have two actions heard together

Greenidge v Allstate Insurance Company, 2019 ABCA 52

The respondent denied coverage for Section B benefits after the appellant refused to attend an IME that was not videotaped. The Court of Appeal confirmed that there is no right to videotape a Section B IME. The Court went further to direct that an Insured does not have the right to decline the examination, or dictate how the examination should take place:

[9] We agree with the trial judge that Special Provision 4 is clear and unambiguous. It gives the insurer the right to require an examination of the insured’s person by a duly qualified medical practitioner selected by the insurer. The provision does not give the insured the right to decline the examination, select the practitioner or dictate the manner in which the examination will take place. When the insurer selects the practitioner, it consequently selects the practitioner’s examination protocol. The practitioner must be allowed to conduct the examination in accordance with the practitioner’s protocol, otherwise the insurer’s right to select the practitioner may be nullified. The insured is obliged to attend an examination by the practitioner selected by the insurer in accordance with the practitioner’s protocol.

[10] An insurer does not breach the duty of utmost good faith by relying on a term of the policy nor is there anything unfair in an insurer insisting that the insured comply with a term of the policy.

Taj v McIntosh, 2019 ABQB 69

This matter involved a Liability Trial arising out of a rear end collision. The Plaintiff was being followed by E who was travelling 20 km/h faster than her. As a result, the Plaintiff slowed down and E passed the Plaintiff on the right and went around her. The Plaintiff was subsequently rear ended by another unidentified vehicle. The Administrator argued that the Plaintiff would not have slowed down significantly but for E going fast behind her and subsequently passing her. The Administrator argued that E was partly liable for the collision. The Court disagreed, and concluded that the actions of E were not closely connected to the rear end collision, and as a result, not a proximate cause of the collision:

[55] I accept Elkassem’s contention that there were two different events at play in this instance. While Taj was a player or participant in both events, I agree that the events were separated in terms of both time and distance. Moreover, there is no evidence before me that McIntosh and Elkassem were even aware of the presence of one another in the general vicinity at the time. As such, Elkassem driving, even if negligent, had no impact on McIntosh’s failure to ensure that he was following the vehicle driven by Taj at a safe distance.

[56] I am also satisfied that the actions of Elkassem were no longer a factor in the driving of Taj at the time she was struck. Not only had she accelerated to 35-40 km/h, close to her estimated speed prior to her encounter with Elkassem, but she had travelled some considerable distance since Elkassem had passed her in the right lane, moved his vehicle ahead of her vehicle in the left lane, and the made an unplanned left hand turn on 26th Avenue NE. Taj proceeded through the intersection and a further half block before her vehicle was rear-ended by the McIntosh vehicle. According to the Agreed Statement of Facts, she drove for 10-15 seconds after clearing the intersection before the collision took place.

[57] I am satisfied that the collision was caused by the actions of McIntosh, specifically his failure to follow the Plaintiff’s vehicle at a safe distance in accordance with the provisions of the Traffic Safety Act, RSA 2002, c T-6. McIntosh’s inattention was the sole cause of the accident. I am not persuaded that the actions of Elkassem contributed in any way to the rear-end collision of the Plaintiff’s vehicle by the vehicle driven by McIntosh.

Thiessen v Corbiell, 2019 ABCA 56

This was an application for dismissal for long delay. The application was successful at the Master level, overturned on appeal, and in the within case, the Court of Appeal granted the dismissal. The chambers Judge found that the two applications to have the issue of damages heard together significantly advanced the action because it resulted in an agreement to mediate. The Court of Appeal disagreed as the failed attempts to try the actions together for the purposes and damages did not advance either action:

[23] These actions have undoubtedly languished. The parties agree that Mr. Thiessen’s response to the undertaking to provide medical records on August 6, 2014 was a significant advance in both actions. However, a review of the record shows that nothing happened between August 6, 2014 and August 11, 2017 to move this action along. The failed attempts to try the actions together for the purposes of damages and to proceed with mediation did not advance either action. Neither attempt served to “narrow the issues, complete the discovery of documents and information, or clarify the positions of the parties”, the type of activities said to comprise “significant advances” in Ro-Dar at para 20.

[24] Almost two years passed between the application to have damages tried together and the scheduled mediation. The agreement to set down a mediation hearing was simply an agreement to enter settlement discussions, and it did not proceed because Mr. Thiessen bowed out. These events did not narrow the issues or move the parties to resolution: briefs were not filed, pre-hearing agreements were not made, nor were meaningful negotiations conducted.

[25] The functional approach to whether a lawsuit has been “significantly advanced” involves “an assessment and measurement of the effect of what happened in the action during the period of alleged delay, measured in light of the facts and the objectives of the Alberta Rules of Court”: Flock v Flock Estate, 2017 ABCA 67 (CanLII) at para 17, [2017] CarswellAlta 294 (Flock Estate). It appears that the chambers judge in this case was influenced by the fact that the failed consent order was not within Mr. Thiessen’s control, a fact not relevant in this context: Decision, paras 21-22. Regardless of the reason the consent order failed, Mr. Thiessen bore the “ultimate responsibility for prosecuting his claim in a timely manner”: Flock Estate at para 17, affirming XS Technologies v Veritas DGC Land Ltd, 2016 ABCA 165 (CanLII) at para 7, [2016] CarswellAlta 956.