Category: Firm News

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.

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

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!

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.

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.