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Firm News

TGP’S 2023 FALL FORUMS

TGP was pleased to host its annual Insurance Law Symposium on November 30, 2023 and its annual Accident Benefits Forum on November 29, 2023. Both presentations are available for viewing and can be found at http://tgp.lawcast.tv/

The topics at the Insurance Law Symposium included when to consider a motion to strike against an individual defendant; the top five insurance cases of the past year; defending municipal claims; an update on key issues in damages awards; lessons learned at trial; and an update on COVID-19 class actions.

The Accident Benefits Forum included a discussion of subjective complaints and how to identify legitimate claims; special award risks; and a case law update for important AB decisions.

TGP thanks everyone who took the time to attend and/or view the forums and looks forward to seeing everyone again in 2024!

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Uncategorized

JAIME YANEVSKI JOINS THE PARTNERSHIP

Thomas Gold Pettingill LLP is pleased to announce that Jaime Yanevski has joined the partnership as of January 1, 2024.

Jaime is a graduate of Osgoode Hall Law School, and has been a valued member of TGP since 2021. Jaime practices in the area of insurance defence litigation, including the defence of occupiers’ liability claims, motor vehicle claims, property claims, and municipal liability claims. He is also regularly retained to conduct examinations under oath in motor vehicle claims, property claims, and potential fraud investigations. Jaime has represented clients before the Ontario Superior Court of Justice and Small Claims Court.

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Sara Baum Successfully Defends LAT Application for MIG Removal

Sara Baum successfully defended a LAT application in which the claimant sought a removal from the Minor Injury Guideline (“MIG”).

Upon review of the claimant’s medical records, Adjudicators Clive Forbes and Deborah Neilson found that the claimant had not established that his pre-existing injuries or his alleged chronic pain condition prevented him from maximal recovery under MIG limits. The Adjudicators accepted Ms. Baum’s position and held that the claimant was required to produce more compelling evidence to establish that he suffered from a psychological impairment that justified his removal from the MIG.

The LAT dismissed the claimant’s application.

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Sara Baum Successful in Motion to Dismiss LAT Application

Sara Baum was successful in her motion to bar the claimant’s LAT application from proceeding and have the application dismissed pursuant to sections 32 and 55 of the SABS. The claim arose from an accident that occurred on March 1, 2019. The claimant advised her insurer shortly after the accident that she had not suffered injuries from the accident. She did not advise her insurer of her intention to apply for accident benefits until March 1, 2021 and submitted her OCF-1 on March 7, 2021.

Adjudicator Terry Hunter rejected the claimant’s submissions. He noted that ignorance of the law did not relieve the claimant of her failure to comply with Section 32(1) of the SABS. Adjudicator Hunter also found that the insurer would suffer greater prejudice if he permitted the application to proceed. The evidence indicated that the claimant had not suffered any injuries or, at most, had sustained soft tissue injuries in the accident. The insurer, on the other hand, was no longer be able to properly assess and adjust the application due to the lack of contemporaneous evidence regarding the claimant’s condition.

The claimant’s application was barred from proceeding and her application was dismissed.

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Sean Murtha Successfully Defends Small Claims Court Action

Sean Murtha successfully defended Toronto Metropolitan University from a claim commenced by a former part-time employee. Justice Wheatley found that the plaintiff had not plead in his claim nor produced at trial evidence to establish any of his 14 causes of action. He found instead that the evidence supported the defence’s position.

Justice Wheatley dismissed the claim.

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No Coverage For Late-Reported Claim Under Excess “Claims Made And Reported” Professional Liability Policy

Joyce Tam and Tom Donnelly successfully represented the insurers of an excess “claims made and reported” professional liability policy in Kestenberg Siegal Lipkus LLP v. Royal & Sun Alliance Insurance Co. of Canada, 2023 ONSC 3132.

The insured law firm was sued for negligence and reported the claim to its insurance broker. The broker promptly reported the claim to the primary professional liability insurer, LawPRO, but did not report it under the excess policy until about three years later. The broker entered into an agreement with the law firm which allowed the broker to sue the excess insurers in the law firm’s name.

The broker argued that the excess policy was not a “claims made and reported” policy and that relief from forfeiture ought to be granted. Justice Morgan rejected both arguments. He first held that the excess policy was a “claims made and reported” policy and that there was no coverage because the claim was not reported during the policy period in which it was first made. He also held that relief from forfeiture was unavailable for failure to make a timely report of a claim under this type of policy.

Justice Morgan dismissed the broker’s coverage application with costs payable to the insurers. The decision is currently under appeal.

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Firm News

Landa v. The Dominion of Canada General Insurance Company, LAT 19-011699/AABS

Chris McCormack was successful in defending a LAT Request for Reconsideration in an accident benefits claim for income replacement, medical, and rehabilitation benefits (Landa v. The Dominion of Canada General Insurance Company, LAT 19-011699/AABS).

This matter related to an accident that occurred in 2007. The 1996 SABS and the 2010 SABS applied to the issues in dispute. In the substantive decision, the Tribunal had found that the claimant was not entitled to an IRB as she failed to provide requested information pursuant to s. 33 of the SABS. Medical and rehabilitation benefits were not payable as the claimant failed to submit treatment plans in accordance with the SABS and FSCO guidelines and/or failed to prove that the proposed benefits were reasonable and necessary as a result of the accident. In the Reconsideration Decision, Adjudicator Kepman held that a reconsideration hearing is not the appropriate time for parties to be rearguing their position and found the claimant had not shown that the Tribunal made an error of procedural fairness by not addressing every argument and piece of evidence raised in the claimant’s submissions.

Small, administrative, or typographical errors were not a basis for granting a Request for Reconsideration. Adjudicator Kepman held that it was not the Tribunal’s role to investigate a claim and request further evidence. The claimant’s references to privileged settlement discussions were not considered. The Request for Reconsideration was dismissed.

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TGP Decisions

Nadine Nasr successfully obtained a dismissal of the plaintiff’s application for judicial review.

The plaintiff’s underlying action arose from a fire that occurred at his property on March 30, 2012 (the “fire”). In the action, the plaintiff is seeking coverage from the defendant insurer, Desjardins General Insurance Group (formerly State Farm Fire and Casualty Company), for alleged losses suffered from the fire. On October 21, 2019, the appraisal hearing for the matter proceeded and the Umpire released the appraisal award.

The plaintiff disputed the Umpire’s award on several grounds. His position included claims that the Umpire had lacked jurisdiction, that there was a conflict of interest, and that the Umpire had not provided reasons behind the appraisal award.

The Divisional Court noted that the defendant had adequately addressed the numerous issues raised by the plaintiff. The court rejected the plaintiff’s arguments and dismissed his application for judicial review, awarding $25,000.00 in costs to the defendant.

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Firm News

TGP Successful in Motion to Dismiss Cross-Claims Between Settling Defendant Insurers

Result

In Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, Tom Donnelly of TGP successfully argued on behalf of the settling defendant insurers that the plaintiff Vale Canada Limited (“Vale”) had no standing to oppose the settlement reached between the defendant insurers (the “Settlement”). Justice Myers agreed with the defendants’ position. He approved the Settlement to bar present and future cross-claims by non-settling insurers against settling insurers.

Background

The plaintiff Vale sued its insurers for coverage for historical pollution that occurred between 1958 and 1992. TGP represented Fireman’s Fund Insurance Co (“FFIC”), one of the many insurers who insured Vale under its policy.

There is an ongoing dispute regarding jurisdiction, with both the Ontario Court of Appeal and the New York Court of Appeals holding that their respective courts have jurisdiction. The litigation is accordingly proceeding in both jurisdictions concurrently.

Vale had settled with FFIC and eight other insurers. The 10 non-settling insurers had actual or potential cross-claims against the settled insurers. The settled insurers brought Rule 20 and 21 motions to dismiss the cross-claims of the non-settling insurers and to bar any future cross-claims. TGP and the settling insurers ultimately reached a consent dismissal with the non-settling insurers on a with prejudice basis. Vale, however, objected to the Settlement and claimed that the settlement prejudiced its position in the jurisdictional dispute.

The New York Court of Appeals had deferred consideration of any cross-claims between the defendant insurers until liability of the defendants to Vale had been established. The defendant insurers agreed that the Settlement would dismiss cross-claims in the US action without prejudice. Therefore, under the US settlement the insurers can bring claims for contribution and indemnity in the future.

Vale desires for the claim to proceed in Ontario. Vale argues that the insurers will rely on the difference in settlement structure in the Ontario and New York actions to claim that the US is the more convenient forum because the US action is more comprehensive. Vale requested that Justice Myers refuse the Settlement unless the defendants forfeited the right to future crossclaims in the US action.

Justice Myers noted that the Settlement concerned matters of contribution and indemnity claims between the defendants and did not prejudice Vale’s economic or legal rights. Justice Myers also found that what transpired in the US action did not affect Vale’s rights in the Ontario action. He rejected Vale’s arguments and approved the Settlement, dismissing all cross-claims between insurers in the Ontario action.

Link to decision

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Firm News Industry News

Chris McCormack Successful in Long-Running AB Dispute

Chris McCormack was successful in defending an accident benefits claim for income replacement, medical, and rehabilitation benefits (Landa v. The Dominion of Canada General Insurance Company, LAT 19-011699/AABS). This matter related to an accident that occurred in 2007. The 1996 SABS and the 2010 SABS applied to the issues in dispute. Adjudicator Kepman found that the claimant was not entitled to an IRB as she failed to provide requested information pursuant to s. 33 of the SABS. Medical and rehabilitation benefits were not payable as the claimant failed to submit treatment plans in accordance with the SABS and FSCO guidelines and/or failed to prove that the proposed benefits were reasonable and necessary as a result of the accident. The successful result in this hearing followed successful results in a preliminary issues hearing and two reconsideration hearings.