This retired judge defended homeowners from abusive insurance companies


thestar.com
Bob Aaron
Bob Aaron bob@aaron.ca

Posted On: Friday, July 20, 2018
Justice John I. Laskin wrote that Pilot Insurance’s abusive conduct justified a punitive award to Whiten.

When Justice John I. Laskin retired from the Ontario Court of Appeal earlier this year, he left a legacy of many brilliant decisions.

To me, the most important one for owners of real estate is his dissenting opinion in the case of Whiten v. Pilot Insurance. Laskin’s opinion was later upheld when the Supreme Court of Canada reversed the appeal court’s ruling.

Laskin’s judgment put Canadian insurance companies on notice that they will be held to account if they abuse their policyholders.

The case involved Daphne Whiten who, with husband Keith, owned a home in Haliburton that was insured under a homeowner’s policy with Pilot Insurance.

On January 18, 1994, a fire destroyed their home and all of their belongings. Whiten claimed the fire loss under her insurance policy, but Pilot refused to pay. Pilot alleged arson, even though it had opinions from its adjuster, expert engineer, an independent investigator and the local fire chief that the fire was accidental.

When Whiten sued the insurer, Pilot maintained its defence of arson throughout a four-week trial before a judge and jury.

Whiten was ultimately awarded damages for the fire loss in the amount of $318,252, plus costs of another $317,658. In addition, the jury awarded her a record $1 million in punitive damages.

Pilot appealed to the Ontario Court of Appeal in 1998. Two judges in a three-judge panel reduced the $1-million award to $100,000.

In a passionate dissent supporting the original jury’s award, Justice Laskin wrote: “Pilot’s conduct was so reprehensible that a punitive award was justified; and the amount of the award is supportable in the light of the deference to be accorded to the jury’s assessment, the extent of Pilot’s reprehensible conduct, the need to deter this kind of conduct and the need to impose a fine that is more than a licence fee.”

Whiten then appealed to the Supreme Court of Canada. Writing for a seven-judge panel in 2002, Justice Ian Binnie reversed the decision of the Court of Appeal. The court upheld the $1-million award and also the dissenting opinion of Laskin.

Binnie wrote: “The jury obviously concluded that people who sell peace of mind should not try to exploit a family in crisis. Pilot ... required (Whiten) to spend $320,000 in legal costs to collect the $345,000 that was owed to her.”

Binnie noted that there was evidence to support Laskin’s view that Pilot “abused the obvious power imbalance in its relationship with its insured by refusing to pay a claim that it knew or surely should have known was valid, and even by cutting off rental payments on the Whitens’ rented cottage.

“It took advantage of its dominant financial position to try to force the Whitens to compromise or even abandon their claim. Indeed, throughout the nearly two years that the claim was outstanding, Pilot entirely disregarded the Whitens’ rights.”

Writing in the summer 2018 edition of the Advocates’ Journal, lawyer Robert A. Centa noted that Laskin mastered legal precedent to permit him to do the right thing. “He did so with great compassion and sensitivity. We should all be grateful for his service.”

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Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.

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