From time to time we post legal nuggets and other helpful advice pertaining to civil law, litigation, and insurance:
Insureds have a Duty to Disclose Material Information to their Insurers
Did you know that you have a duty to disclose material information to your insurance company when you are placing insurance?
Did you also know that you have an obligation to update your insurer on material changes?
The information you provide to your insurer is used to determine the premiums you will pay for your insurance. If you have a loss and there was relevant non-disclosure of material information, your insurance company may refund the amount you paid for your insurance and void your coverage. The failure to disclose material information may leave you with no coverage for a loss.
Here are some tips to make sure you can rely on your insurance policy when you need it:
• Fully and accurately answer the questions of insurance agents;
• Don’t assume that because the agent didn’t ask a question the information is not relevant to your coverage;
• Never misrepresent the facts; and
• Notify your insurer of any changes that impact the risk insured, for example: the addition of a wood stove or if your home will be unoccupied for an extended period.
If you find yourself in an insurance coverage dispute it is best to speak with a lawyer who can review your policy terms with you and determine if there is a basis for coverage.
When Defamatory Social Media Posts become Cyber-Bullying
A landmark decision on cyber-bullying was released December 17, 2019. The civil lawsuit is the first of its kind under Nova Scotia’s Intimate Images and Cyber-Protection Act, SNS, 2017 c7.
The Applicant is involved in a protracted family law dispute with the first of the two Respondents. The second Respondent is the first Respondent’s new partner. The Application was filed because the Respondents made “prolific” malicious postings on Facebook. The female Respondent testified that she had 4,900 Facebook friends and that her pictures would generate between 200-300 likes. It was her objective to reach a wide audience with her derogatory posts about the Applicant.
The Cyber Protection Act aids Nova Scotians in responding to non-consensual sharing of intimate images and cyber-bullying and creates civil remedies to deter, prevent, and respond to this harm.
To determine whether the Facebook posts amounted to cyber-bullying, Justice Arnold considered the legal test of whether they were: (1) electronic communications, (2) direct or indirect, (3) caused harm or were likely to cause harm to the Applicant’s health or well-being, and (4) whether there was malicious intent to cause such harm or recklessness in regard to the risk of such harm.
Clearly the Facebook posts were electronic communications. Justice Arnold then found that there was an intention to communicate with the Applicant and her a legal counsel. He then accepted the Applicant’s testimony that she was caused significant psychological stress which had some impact on her physical health by exacerbating a pre-existing medical condition. Justice Arnold also held that there was a malicious intent because the entire point of the Facebook posts was to bully the Applicant so that she would feel pressured into reversing her legal position in the family law dispute.
Justice Arnold went on to note additional considerations including that there was disclosure of sensitive personal facts, threats and intimidation, the communication was grossly offensive, indecent or obscene, and the communication was intended as harassment. Both Respondents were held to have engaged in cyber-bullying.
There was no merit to any of the Respondents’ defenses. Notably, the Respondents argued that because the Applicant was blocked from the Facebook page the comments should be considered private. Unsurprisingly, this was not a viable defense.
Among other things, the Court ordered that the Respondents must take down the impugned social media posts. Significantly, Justice Arnold invited further submissions from the parties as to the damages and costs to be awarded. It will be interesting to learn what amount in damages is awarded to the Applicant as this will become the precedent for future cases.
This decision should give us pause to realize that our Courts recognize that social media posts are not private and there can be significant consequences for the comments we make online.
10 Tips to make your Home Winter Ready and Avoid a Potential Insurance Claim
1. Make sure the water is shut off to your outside faucets and drain the water if possible;
2. Check your unheated garage for any containers with liquids that may freeze;
3. Pick up a small bottle of lock de-icer and a few extra shear pins for your snow blower;
4. Have your furnace serviced;
5. Consider setting up automatic oil delivery;
6. Make sure your gutters are clear of leaves and twigs from the fall;
7. Make sure exterior oil or gas lines are protected from falling ice and snow;
8. Check for significant air leaks around doors and widows;
9. Drain the gas from your lawnmower, string trimmer, etc. or add a fuel stabilizer for the winter; and
10. Consider whether it is time to clean the chimney of your fireplace.
Can you Expect Privacy in Public Spaces?
The Supreme Court of Canada released a decision dealing with the reasonable expectation of privacy in public spaces (R. v. Jarvis) in 2019. Jarvis, an Ontario high school teacher used a concealed camera to make recordings of female students at school which focused on their chests. He was charged with voyeurism under the Criminal Code.
The SCC held that the students had a reasonable expectation of privacy even though they were at school (a public space) where they knew they could be observed by others and recorded by security cameras. Pertaining to the charge of voyeurism, Wagner, C.J. stated: “In my view, circumstances that give rise to a reasonable expectation of privacy … are circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred.”
Wagner, C.J. set out a list of factors that must be considered in such cases: (1) the location, (2) the nature of the conduct, (3) the awareness or consent of the observed person, (4) the manner of the recording, (5) the subject-matter of the recording, (6) any rules, regulations or policies that governed the recording, (7) the relationship between the parties, (8) the purpose for the recording, and (9) the personal attributes of the observed person.
In this decision, Canada’s highest Court ruled that being in a public or semi-public space does not automatically negate all expectations of privacy. This decision could have implications outside the criminal context including civil claims, recordings in the workplace, and possibly private surveillance.
However, if you have a personal injury or disability claim, you should know there is a possibility you will at some point be under surveillance and you should discuss this with your lawyer.
Know the A, B, C, and Ds of your Nova Scotia Automobile Insurance Policy
There is a standard form auto policy in NS which is comprised of four Sections: A, B, C, and D.
Section A – Third Party Liability
Third party liability defends actions against an insured, or another person operating the vehicle with the insured’s permission, where the insured is at fault for the accident. A minimum of $500,000 in third party liability coverage is mandatory.
Section B – Accident Benefits
Regardless of fault, people injured in auto accidents are entitled to Section B benefits for medical expenses. These benefits include medical, rehabilitation, and funeral expenses, as well as death benefits and loss of income benefits.
Section C – Loss or Damage to the Insured Automobile
There are four types of this optional insurance: collision, comprehensive, specified perils, and all perils and payments are subject to a deductible.
Section D – Uninsured Automobile Coverage
This section protects the insured if the insured is injured by an uninsured or unidentified (hit and run) driver.
If you were in an accident involving an automobile and have questions about your entitlement to compensation, contact J. Morrison Law for a free no obligation initial consultation.
Product Liability - Damage, Loss, or Injury Caused by Products
Manufacturers and vendors of products owe consumers a duty of care and can be held liable in negligence for defective products that cause harm.
Manufacturers must use reasonable care to ensure that users of their products are not exposed to a risk of injury or property damage.
A manufacturer’s duty also includes an obligation to provide adequate warnings for safe use or operation of the product.
Defects in products may arise through the manufacturing process or the design of a product may be defective.
Both the manufacturer and the vendor of a defective product may be liable for personal injury or property damage sustained by the user of the defective product.
Product liability claims may be based on negligence and/or breach of contract.
What Evidence do you Have of your Contents Following a Fire Loss?
A great fear for many homeowners is a significant or complete fire loss. The Office of the Fire Marshal in Nova Scotia reported that in 2016–2017 alone there were 1,959 fire service response events with the total value of the fire loss in excess of $35 million.
After a fire, your insurer will likely require that you provide a completed proof of loss. In doing so, you may be required to provide a detailed list of the contents of your home that were destroyed. This is often a time-consuming and difficult task.
We recommend you maintain a cloud based digital album of photos of the rooms in your home in case you are ever in the unfortunate situation of having to prove a claim for contents. If you are not tech savvy consider having photographs developed and keep them in a safe deposit box or even give them to a friend for safekeeping. You might also consider maintaining an inventory of your valuable contents.
2020 Minor Injury Cap for Soft Tissue Injuries
The minor injury cap amount for 2020 has been set at $8,911. The 2020 amount applies only to motor vehicle accidents that occur in 2020.
The minor injury cap limits the amount of general damages a person may receive for pain and suffering for minor injuries sustained in a motor vehicle accident. Minor injuries are defined as including sprains, strains, and whiplash injuries.
If you are involved in a motor vehicle accident you should be aware that an insurance company may tell you that your entitlement to general damages is limited by the minor injury cap but this may not be the case. There are many factors to consider in the determination of whether an injury is “minor”. Moreover, the cap does not apply to other types of compensation, such as loss of income, out-of-pocket expenses, loss of housekeeping services, and loss of future earning capacity which may significantly increase the total value of a claim.
Some Considerations Before you Buy a Dash Camera
If you have a dash camera in your vehicle and are involved in an accident be sure to preserve the data for your lawyer’s review.
While dash cameras continue to increase in popularity and are relatively inexpensive, you might want to consider whether it will be an asset or liability once its installed in your vehicle.
After an accident, if liability is disputed the video footage may become evidence in litigation. Since the video recording will most likely be relevant, you should be aware that you have an obligation to preserve such evidence and it may become part of your disclosure as a party in litigation. If you delete the video, the circumstances could lead to an adverse inference against you which could be detrimental to your case.
If you are involved in a motor vehicle accident where you are not at fault and there are other drivers at the scene, you might consider ascertaining whether they have dash cameras in their vehicles and whether you should request the video from them.
It's Important to Understand the Distinction between Patent and Latent Defects when Buying or Selling a Property
The principle of caveat emptor (commonly referred to as buyer beware) in real estate transactions generally means that, absent fraud, mistake or misrepresentation, the buyer takes the property “as is”.
The buyer alone is responsible for checking the quality and suitability of the property.
However, sellers have an obligation to disclose a material latent defect to buyers if the defect renders a property dangerous or unfit for habitation. A latent defect is one that is not discoverable by a purchaser through reasonable inspection inquiries. Moreover, caveat emptor will not shield sellers who have made fraudulent or negligent misrepresentations with respect to latent defects.