Dear Colleagues:

Some of you might be interested in the Ontario Court of Appeal's ruling in Hamilton v Osborne (http://www.ontariocourts.on.ca/decisions/2009/september/2009ONCA0684.htm) that insurance proceeds from statutorily mandated insurance schemes reduce a wrongdoers liability (contrary to the general rule). Relying on list-member Andrew Tettenborn the court states:

[43]  The rationale for this exception [from Bradburn v. Great Western Railway Co (1874) LR 1 Ex 10] is that people should not lightly be deprived of the proceeds of their own thrift and foresight; therefore premiums paid for insurance should not be used to reduce a tortfeasor’s liability: Tetterborn, at para. 5.26. See also Ratych at para. 7 [Ratych v. Bloomer, [1990] 1 SCR 940].  But this rationale is only applicable where insurance premiums are paid.  Hamilton paid no premiums to ONHWP [Ontario New Home Warranty Program], nor did she demonstrate any foresight in gaining access to it.  The guarantee fund was available to her by statute.  ...  The ONWHP fund was therefore not “insurance” in the sense that warranted its exclusion from the doctrine of mitigation.

All the best,

-- 
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435