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Natasha O’Toole Joins the Partnership

Thomas Gold Pettingill LLP is pleased to announce that Natasha O’Toole has joined the partnership as of January 1, 2023.

Natasha is a graduate of Queen’s University Law School, and she has been a valued member of TGP since 2017. Natasha’s practice focuses on complex insurance litigation matters, including the defence of professional negligence, defamation, sports and recreation liability, tavern liability, product liability, motor vehicle accident claims, occupiers’ liability, and municipal claims. She also regularly handles subrogation and transportation matters. Natasha has represented clients before the Ontario Superior Court of Justice, the Ontario Court of Appeal, and various provincial tribunals.

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TGP Decisions

2023 Deductibles for Auto Claims Announced

FSRA recently announced the 2023 deductibles for general damage awards and Family Law Act damages awards in auto claims.

The Insurance Act and its regulations delegate the authority to FSRA to update the deductibles on an annual basis. The increase is tied to the change in the Consumer Price Index. Because of the high levels of inflation over the past year, the 2023 deductibles increased by 6.9 percent over the 2022 deductibles.

The new deductibles for 2023 are:

  • General Damages – $44,367.24 (increased from $41,503.50)
  • FLA s. 61(2) Damages – $22,183.63 (increased from $20,751.76)

The value at which the deductible no longer apply (sometimes called the “vanishing deductible limit”) for 2023 are:

  • General Damages – $147,889.59 (increased from $138,343.86)
  • FLA s. 61(2) Damages – $73,944.18 (increased from $69,171.36)

The updated deductibles will be welcome news for insurers, particularly in light of rising damages awards and social inflation.

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Industry News

Adam Bucci and Nicole Pelaia Successful in Resisting Injunction

Adam Bucci and Nicole Pelaia were recently successful in resisting a complex motion for a mandatory injunction to compel the City of Hamilton from undertaking expensive (and duplicative) remediation of a water channel, where there were serious issues of liability and causation in dispute.

In his reasons in National Steel Car Limited v Arcelor Mittal Dofasco, 2022 ONSC 6742, the motion judge accepted TGP’s arguments that the plaintiff failed on all three elements of the R. v. CBC test for a mandatory injunction as against the City. Of particular importance, the motion judge found that the balance of convenience favoured the City, as the plaintiff’s proposal for remediation lacked specificity, that it would come at a significant public expense, and that it likely would entail the significant waste of public resources.

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Firm News

TGP’s 2022 Fall Forums

TGP was pleased to host its annual Insurance Law Symposium on November 4, 2022, and its annual Accident Benefits Fall Forum on November 10, 2022. Both presentations are available for viewing, and can be found at http://tgp.lawcast.tv/

The Insurance Law Symposium included multiple panels, covering property appraisals and inspections; the top five insurance cases of the past year; municipal claims; recent trends in concussion cases; rising damages awards; and an update on COVID-19 litigation and class actions.

The Accident Benefits Forum discussed current trends and pitfalls to avoid in relation to treatment plans, recent LAT trends, and recent accident benefits and priority case law. TGP thanks everyone who took the time to view and participate in both forums. We look forward to seeing everyone again in 2023!

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Firm News

TGP Successful in Coverage Decision

Background
Tom Donnelly and Joyce Tam successfully defended a motion in which the plaintiffs were seeking indemnity under a professional liability policy (the “Policy”).
The Policy provided coverage for claims brought against the plaintiffs during the policy term. However, the Policy contained an exclusionary clause (the “Clause”) denying coverage if the insured was aware of the claim(s) prior to the commencement of the policy term but failed to inform the insurer thereof. The Clause states: We shall not cover claims: [ … ]

arising out of or resulting, directly or indirectly, from any wrongful act committed prior to the first inception date if, as of the first inception date, your Global Claims & Insurance Department or Chief Legal Counsel knew or could have reasonably foreseen that such wrongful act did or would result in a claim against you; [ … ] [Emphasis added]

Before the Policy came into effect, a client of the plaintiffs, MFRM, sent a litigation hold letter on March 30, 2016, stating that it was leading investigations that could result in a claim against the plaintiffs. MFRM then dismissed the plaintiffs and interrogated Mr. Deitch, an employee who had been the plaintiffs’ lead contact with MFRM. They also sought access to his phone to document text and email messages.

The plaintiffs’ Chief Legal Counsel was informed of the interrogation and of the potential involvement of Mr. Deitch in wrongdoing committed by MFRM’s former CEO. In the summer of 2016, the plaintiffs retained counsel to review Mr. Deitch’s email correspondence and entered into a joint defence agreement with his lawyer.

Issue
The sole issue in dispute was the degree of knowledge regarding the potential claim that was necessary in order for the Clause to apply.

Decision
The Court rejected the plaintiffs’ argument that they were required to possess knowledge that a claim “would result” for the Clause to apply. It held that the term “would” was not used as an imperative in the Clause, but rather described a future condition or possibility. The Court ruled that the test was objective, and asked whether Chief Legal Counsel for the insured could have reasonably foreseen that a claim would be brought during the duration of the policy.

The Court noted that, while the plaintiffs frequently received litigation hold letters, this time they had hired a lawyer to review documents regarding the alleged wrongdoing. The plaintiffs had even entered into a joint defence agreement with counsel for Mr. Deitch to defend claims from MFRM.

The Court accepted the arguments made by TGP and found that Chief Legal Counsel’s knowledge of Mr. Deitch’s interrogation and the actions that he took in response demonstrated that he could have reasonably foreseen that a claim would arise during the policy term. As such, the Court held that the exclusionary clause applied and dismissed the plaintiffs’ application.

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Firm News

Chris McCormack Joins the Partnership

Thomas Gold Pettingill LLP is pleased to announce that Chris McCormack has joined the partnership as of January 1, 2022.

Chris is a graduate of Osgoode Hall Law School, and he has been a valued member of TGP since 2016. Chris’ practice is focused in the area of statutory accident benefits claims (including priority and loss transfer disputes) and the defence of personal injury claims. Chris has successfully represented insurers and insureds before the Ontario Superior Court of Justice (including appeals before the Divisional Court), the Licence Appeal Tribunal, the Financial Services Commission of Ontario, and in Small Claims Court.

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TGP Decisions

TGP Fall Forums a Success

TGP was pleased to host its annual Accident Benefits Fall Forum on October 22, 2021, and its annual Insurance Law Symposium on November 5, 2021. Both presentations are available for viewing, and can be found at http://tgp.lawcast.tv/

The Accident Benefits Forum discussed recent case law from the LAT and Superior Court, and included a panel discussion of the adjuster’s role in a LAT hearing.

The Insurance Law Symposium included multiple panels, covering topics: common issues facing insurers in FLA claims; additional insureds; municipal claims; COVID related class actions; legal issues arising in property claims; and a review of the top five cases from the past year.

TGP thanks everyone who took the time to view and participate in both forums. We look forward to seeing everyone again in 2022!

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TGP Decisions

Vincent v. The Economical Insurance Group, 2021 ONSC 7169

Tim Crljenica was successful in a motion to compel the plaintiff to participate in an appraisal of his property damage claims, pursuant to the Insurance Act.

The plaintiff sustained three distinct property losses at his home in 2010. He commenced litigation in 2011, suing his insurer under his homeowner’s policy in relation to two of the losses. In 2018, the plaintiff was granted leave to amend his claim to add the third loss to the statement of claim. Following further examinations for discovery of the plaintiff and the insurer, Economical requested that the plaintiff participate in an appraisal by appointing his own appraiser and jointly agreeing on the appointment of an umpire. The plaintiff refused to comply, arguing that the request was made too late in the process.

Justice Carey granted the relief requested by Economical, that the plaintiff provide a sworn proof of

  • loss within 14 days; that the plaintiff appoint an appraiser
  • seven days thereafter, failing which Economical may proceed with appraisal
  • in his absence; that the plaintiff’s appointed an appraiser, jointly agree with Economical’s appraiser as to an umpire within 15 days; and that if the parties fail to
  • agree on an umpire within 15 days, Glenn Gibson shall be appointed as umpire

The first issue Justice Carey had to address was whether leave should be granted to Economical to bring the motion. The matter had been set down prior to the 2018 amendment to add the third water loss, and a six-week trial had been scheduled. The trial was adjourned upon the amendments and no new trial had yet been scheduled due to COVID.

Justice Carey accepted that leave ought to be granted due to a substantial change in circumstances. He wrote that the COVID-19 pandemic had substantially interfered with the Court’s ability to deal with trials. The need for finite judicial resources to deal with criminal matters left less availability for civil matters to proceed in a timely fashion. This met the requirements to grant leave, in Justice Carey’s opinion.

The ongoing effect of the pandemic also weighed on Justice Carey’s decision to order the plaintiff to proceed with appraisal. The plaintiff insisted that he was entitled to his “day in Court” in arguing against the appraisal. Justice Carey reasoned that it would be “an egregious misuse of the Court’s resources” to schedule a six week trial for the plaintiff’s property damages claim when there was a legislated alternative in the form of an appraisal. Moreover, the appraisal process would permit for an expeditious result and utilize appraisers with expertise in the valuation of the property damage loss. The expertise available from the appraisal was greater than the Court’s experience in valuing a person’s home contents.

Justice Carey also addressed the plaintiff’s request for his litigation costs incurred to date. Economical argued that because the appraisal did not end the litigation, the plaintiff’s right to seek costs was not extinguished. Justice Carey agreed and was satisfied that the plaintiff could pursue costs from the trial judge at the end of a trial (if the matter continued following appraisal), which would be necessary to address the limitations defence raised by Economical.

This result was in line with case law addressing section 128 of the Insurance Act and the appraisal process. As the law currently stands, appraisal under the Insurance Act is a mandatory process if requested by either the insurer or the insured following the submission of a Proof of Loss. There is little recognized leeway by the Courts in rejecting the request for appraisal. As seen in Justice Carey’s decision, the passage of years does not eliminate the right to request appraisal. The Courts recognize that appraisal is a much more convenient and expedient manner to value a property damage claim, and allows the Court to focus its limited resources on matters it is required to hear or where it has the appropriate expertise.

Learn more

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TGP Successful in Motion to Strike

Natasha O’Toole was successful in a motion to strike all causes of action against five personally-named employees of Mohawk College, without leave to amend, in Barber v. Goerz, 2021 ONSC 3698.

The plaintiff was a student enrolled in the paralegal program at Mohawk College. Students in the paralegal program are given the opportunity to participate in community placements. Herman’s Supply Company offered one such placement. Mohawk College provided Herman’s with a copy of the plaintiff’s resume for consideration. The Herman’s liaison responded with two emails raising concerns about the plaintiff’s history.

The plaintiff claimed for $1.1 million against Herman’s, its liaison, Mohawk College, and five Mohawk employees, alleging defamation, negligence, and breaches of his rights under various statutes. The Mohawk defendants moved under Rule 21.01(1)(b), to strike the amended statement of claim as against the personally-named Mohawk employees on the basis that it disclosed no reasonable cause of action.

Justice Reid allowed the motion, and struck the amended statement of claim as against the personally-named Mohawk employees, without leave to amend. He accepted that the bulk of the allegations against those defendants were in pith and substance decisions made within their ostensible authority as Mohawk employees. Other allegations were either based on speculation or were bald assertions unsupported by material facts. There were no facts to support that any of the personally-named Mohawk defendants committed independent tortious acts, or that their actions exhibited a separate identity or interest from Mohawk. The allegations lumped the employees together as if they were a single party, so it was not possible for each of them to look at the pleading and understand what the plaintiff said he or she did that caused harm, and when the harm was caused. In the circumstances, Justice Reid found it to be plain and obvious that the amended statement of claim did not disclose a properly pleaded cause of action as against the personally-named Mohawk defendants.

With respect to leave to amend, Justice Reid noted that the plaintiff had already amended his pleading extensively after he was first faced with the Mohawk defendants’ motion to strike and the case law relied upon in support of the motion. The amended pleading remained deficient. It was reasonable to assume that if material facts existed that would support that the personally-named Mohawk defendants committed an independent tortious act or exhibited a separate identity or interest from Mohawk, then those facts would have been specifically pleaded. Justice Reid found no benefit in permitting a further attempt by the plaintiff to find some tenable basis for a claim against the personally-named Mohawk defendants. Leave to amend was denied.

For more information on our Education Claims practice, please contact Alex Pettingill or Christina Polano.

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Firm News Industry News

TGP Welcomes Jananie Manoharan and Shelly Kubik

Thomas Gold Pettingill is growing with the addition of two new associates. Jananie will be practicing in the area of statutory accident benefits (SABS) litigation and general tort defence work. She articled with a multinational insurance company before joining the firm. Jananie is a 2021 call. To learn more about Jananie or to contact her, click here.

Shelly is joining the coverage group at TGP and will also be practicing insurance litigation. She articled at an insurance company and was called to the bar in 2021. Shelly is fluent in French. To learn more about Shelly or to contact her, click here.