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On March 7, 2024, D’Arcy McGoey presented at the Canadian Defence Lawyers Loss Transfer and Priority Disputes Webinar on the issue of Extra-Provincial Loss Transfer Claims. Topics of discussion included availability of Loss Transfer for Ontario insurers involving out of province accidents, and Loss Transfer exposure to out of province insurers for Ontario accidents.

Along with the recent case law (including TGP’s recent successful priority arbitration decision in Chubb Insurance Company of Canada v. Zenith Insurance Company Ltd.), the Power of Attorney and Undertaking was discussed as well as the implications of section 45 of the Ontario Insurance Act.

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.

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 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 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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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.