The Lawyers Weekly - January 15, 2010

Gibbens
Continued From Page 3

to smack a circling mosquito,
have valid claims under an acci-
dent policy.”
Bruce Laughton, of
Vancouver’s Laughton &
Company, who with Leah Terai
acted for Co-Operators, attrib-
uted the successful appeal part-
ly to the timing, noting that one
of the more than 100 relevant
cases he had cited involved
paralysis caused by an influen-
za virus, and that the hearing in
Ottawa last April came during
the first H1N1 flu outbreak.
Predicting that the decision
will have wide application, he
told The Lawyers Weekly it
“provides a bookend to Martin.”
The decision might be seen
as at variance with Kolbuc v.
ACE INA Insurance, 2007
ONCA 364, 85 O.R. (3d) 462,
where the Ontario Court of
Appeal reversed a trial judge
and allowed a claim for com-
pensation under an accident
policy by a plasterer who was
rendered a paraplegic after
being bitten by a mosquito car-
rying the West Nile virus.
Justice Binnie said simply, “I
make no comment about the
merits of that decision, which is
not before us…”
As to whether an unexpected
consequence of a disease could
ever be grounds for a claim
under an accident insurance
policy, he said prospective cus-
tomers should understand that
they are not buying compre-
hensive health or disability
insurance. “On the other hand,
unlisted diseases or other bodi-
ly infirmities might still be cov-
ered if attributable to some
antecedent event or events that
could, together with the unex-
pected result, be characterized
as accidental.”
Vancouver lawyers Gary
Collette and Richard Parsons
and Ottawa’s Michael Sobkin
represented Gibbens, while
Patricia Jackson and David
Outerbridge of Torys LLP in
Toronto acted for the interven-
ing Canadian Life and Health
Insurance Association Inc.

Reasons: Co-operators Life Insurance Co. v. Gibbens, [2009] S.C.J. No. 59.

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