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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.

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Firm News Industry News

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.

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TGP Decisions

TGP Successful in Precedent Setting Coverage Decision

Tom Donnelly and Joyce Tam were successful in the Ontario Superior Court in The Corporation of the City of Belleville v. Gore Mutual Insurance Company, 2021 ONSC 3854.

This case arises out of a coverage dispute between the Plaintiff, City of Belleville and the Defendants, the Insurers. The Defendants brought a Rule 21 Motion against the Plaintiff in front of the Ontario Superior Court of Justice. Justice Kershman held that the Defendants were successful on the motion.

A Director’s Order was issued by the Ontario Ministry of the Environment and Climate change on August 31, 2015, against several individuals and entities, including the City of Belleville. The Director’s Order found pollution and contamination on the Belleville Gas Plant site and required the remediation of the contaminated site. Belleville appealed the Director’s Order and sought relief at the Environmental Review Tribunal. The City of Belleville sought to have the Insurers defend the regulatory proceeding that it had appealed at the Environmental Review Tribunal. The Defendants contended that the Director’s Order was not a “civil action” and therefore, the Insurers did not have the duty to defend the City of Belleville.

Motion Hearing Issues
The Court was asked to consider whether the Director’s Order, an environmental regulatory proceeding, is a “civil action” within the meaning of the insurers’ liability policies, and in the affirmative, whether the insurers had the duty to defend the City of Belleville.

Motion Judge’s Decision
In the case before the Court, the insurance policies insured against civil actions and civil actions for damages. Therefore, the Court had to determine whether the Director’s Order was a “civil action” within the meaning of the insuring policies. In defining “action”, Justice Kershman relied on the definitions provided in the Rules of Civil Procedure and the Courts of Justice Act. In defining “civil action for damages”, the Court relied on the reasoning of Justice Caswell in Brockton (Municipality) v. Frank Cowan Co Ltd., who stated, in relevant part, that: “legal fees associated with responses to regulatory and investigative authorities […] including the [Ministry of the Environment] and the Public Inquiry, engineering expenses and remediation expenses are all outside the limits of the contractual risks undertaken by the Insurers”[1].

The Court relied on Justice Penny’s reasoning in General Electric Canada Company v. Aviva Canada, Inc.[2], who noted that the precision of policies is a relevant consideration. By way of contrast, in the General Electric Canada Company v. Aviva Canada, Inc. case, the insurance policies provided that the insurer would defend “suits” and “claims” against the insured. In the case at bar, the Court found that the wording and terms of the Defendants’ policies were specific, and therefore, it was reasonable to conclude that the insurance policies only provided coverage for civil actions, as defined by the Rules of Civil Procedure and the Courts of Justice Act. Accordingly, Justice Kershman held that a “civil action” or an “action” is not the same or equivalent to a “suit”.

Therefore, on the issue of whether the Director’s Order against the City of Belleville is a “civil action” within the meaning of the Insurers’ liability policies, Justice Kershman found that the City of Belleville’s regulatory appeal of the Director’s Order was not captured within the meaning of the words “civil action” or “action” in the insurance policies presented before the Court. Justice Kershman held that in appealing the Director’s Order, the City of Belleville entered an administrative appeal process as opposed to a civil litigation process.

Therefore, the City of Belleville’s regulatory proceedings were excluded from coverage.

Accordingly, the Court found that the Insurers did not have the duty to defend the City of Belleville. The duty to defend is a contractual obligation government by the terms of the insurance policy. The duty to defend refers to the insurer’s obligation to defend claims against an insured which are potentially covered by the insurance policy. In this case, the City of Belleville’s administrative appeal process was excluded from coverage under the insurance policies since the regulatory proceedings did not meet the definition of “civil action”. Justice Kershman followed the Court of Appeal’s position in Brockton (Municipality) v. Frank Cowan Co Ltd. [3] in holding that the duty to defend did not include legal fees incurred in response to regulatory and investigative authorities. Therefore, the insurers’ duty to defend the City of Belleville was not triggered.

[1] Brockton (Municipality) v. Frank Cowan Co Ltd.[2000] O.J. No. 4455 (S.C.), para. 91
[2] General Electric Canada Company v. Aviva Canada, Inc., 2010 ONSC 6806, 10 C.C.K.I. (5th) 16

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Key Takeaways

  • A regulatory clean up order is not a “civil action” and does not trigger coverage under a CGL policy.
  • This precedential decision provides guidance to Canadian courts, policyholders, and insurers in claims involving regulatory orders and the duty to defend and will be an important precedent for Canadian insurers facing pollution liability claims.

For more information on our Insurance Coverage practice, please contact Tom Donnelly or Joyce Tam.

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Firm News

TGP Successful in LAT Claim

Tim Crljenica was successful in defending an accident benefits claim for income replacement benefits, medical benefits, removal from the Minor Injury Guideline, and funding for catastrophic impairment assessments. The decision is M.A.H. v. Travelers Insurance (19-002005/AABS).

Following a three day hearing, LAT Adjudicator Therese Reilly concluded that the claimant did not suffer any of chronic pain, concussion, psychological impairment, or pre-existing conditions. The adjudicator also preferred the opinion of the insurer’s psychological expert over that of the claimant’s expert. The evidence also showed that the claimant continued to work in his pre-accident employment and began a new occupation in the year after the accident.

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Firm News

TGP Welcomes Jaime Yanevski and Leah Burlock

Thomas Gold Pettingill is proud to announce that Jaime Yanevski and Leah Burlock have joined the firm as associates.
Jaime’s practice will focus on the areas of insurance litigation including motor vehicle claims, occupiers’ liability, and municipal liability claims. Jaime was called in 2017. He has experience working at a personal injury firm, including appearing before the Ontario Superior Court and Small Claims Court. To learn more about Jaime or to contact him, click here.

Leah will be practicing primarily in the areas of statutory accident benefits and insurance litigation. Leah was called in 2019 and articled at a boutique litigation firm.  To learn more about Leah’s practice at TGP or to contact her, click here.

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Firm News

Ian Gold and Sean Murtha to Speak on the Impact of COVID-19 on Litigation in Ontario and Significant Court Decisions

On March 12, 2021, Ian Gold and Sean Murtha will present to the Society of Public Insurance Adjusters of Ontario (“SPIAO”).

Ian and Sean will discuss the procedural and practical impact that the COVID-19 pandemic has had with respect to file handling and the litigation process, including the effect of the temporary suspension of limitation periods, how to schedule virtual assessments of plaintiffs by defence experts, and the transition to remote hearings. They will also go over a number of significant court decisions which have been released over the past year, with a particular emphasis on how those cases impact municipalities and school boards.

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Industry News

Bill 118 and Limitation Periods in the COVID-Era

Ian Gold and Adam Bucci presented on the newly passed Bill 118, the amendments to the Occupiers’ Liability Act, and the state of limitation periods in the COVID-era. Bill 118 has meaningfully changed the Occupiers’ Liability Act by adding certain reporting / notice requirements that claimants must follow if they wish to ultimately commence a lawsuit against an occupier following a slip and fall on snow or ice.

Limitation periods have also been affected as a result of the global pandemic. From March 16th to September 14th, 2020, the limitation clock stopped running. As such, all limitation periods imposed by the Province for claims that encompass this window of time have been extended by 183 days, including those claims whose limitation period ordinarily would not have fallen within that 6-month window.