Michelle Fan

Coast Capital Equipment Finance Ltd. v. Old Republic Insurance Company of Canada, 2017 ONSC 6694

Coast Capital pursued the insurer of a fleet of vehicles for liability coverage in circumstances where there was no OPCF 5 Endorsement in its favour. It was determined in the Superior Court in favour of our client that Coast Capital was not entitled to liability coverage.


Cosolo v. Geo A. Kelson Limited, 2017 ONSC 4150

Summary judgment was obtained in favour of our client against his former employer in circumstances where the former employer alleged breach of fiduciary duties on the part of our client as a defence to paying the debt owed.

It was determined there was no breach of fiduciary duty and judgment was awarded for the present value of the outstanding obligation plus the relevant legal costs.


See Michelle Fan’s biography here.

 


Patrick J. Monaghan

Family Insurance Corp v Lombard Canada, 2002 SCC 48

A lack of consistent judicial interpretation across the country on the subject of equitable contribution among insurers was causing our client repeated difficulty resolving overlapping claims with other insurers.  We obtained leave to intervene in this case that was headed to the Supreme Court of Canada from the British Columbia Court of Appeal and assisted the Supreme Court of Canada in formulating a concise set of parameters for the resolution of contribution issues.


Mabe Canada Inc v United Floor Ltd, 2016 ONSC 1060; 2016 ONSC 5794; 2017 ONCA 879

A record-breaking rainstorm caused a flood at the 300,000 sq ft Mabe warehouse in Brantford, Ontario causing widespread damage to the warehoused goods.

At trial, and on appeal, the focus was on the behavior of our client, a specialist concrete flooring contractor, and whether or not the flooring contractor had met the relevant standard of care pouring the concrete floor in this large warehouse.  Result:  action and appeal dismissed with (substantial) costs on the basis that the concrete flooring contractor was found to have met the relevant standard of care.


Kempf v Nguyen, 2013 ONSC 1977; 2013 ONSC 1129; 2015 ONCA 114

A bicycle accident during the 2008 Becel Ride for Heart left our client with a collection of unfortunate physical injuries even after he survived a series of life threatening emergencies at hospital following the trauma of the accident. Patrick Monaghan brought this case to trial backed up by the research acumen of Christine Matthews. The result was a judgment in favour of the plaintiff to the extent of 100% on liability, damages having been agreed upon in advance.

Following the appeal (new trial ordered) the case was favourably resolved. 


McKee v Montemarano, [2008] OJ No 2855 (SCJ); 2009 ONCA 520

The trial and subsequent appeal involved the interpretation of a waiver of condition clause in an agreement of purchase and sale amidst a bizarre set of facts.


Jones v Niklaus, 2008 ONCA 650

Affectionately known around the office as “Buddy’s Case”.

After a successful defence in front of the jury at trial (the plaintiff was awarded less than the defendant’s offer to settle), the plaintiff hired noted appellate counsel who launched a spirited appeal raising numerous issues including the reliability of the evidence of the child eyewitness, the apportionment of liability, the jury’s findings concerning mitigation and the propriety of the defence using the plaintiff’s actuarial expert to draw conclusions based upon the defence propositions put to the expert and accepted by the jury.

We were successful on all issues.


Canadian Universities’ Reciprocal Insurance v CGU Insurance, 2007 ONCA 650

Liability for the injuries of the badly injured plaintiff was determined at a trial of the liability issue, while the issues between the defendants narrowed to which of the defendant insurers was going to be obliged to contribute to the settlement of the plaintiff’s claims.  This, in turn, required the court to determine whether there was overlapping coverage under the relevant policies so as to trigger the application of the principles of equitable contribution.

Although the trial judge found that the GAN Policy did not provide coverage to the judo instructors in this case, the Court of Appeal, after a review of the issue of whether or not the Windsor Judo Club was a “member club” of Judo Ontario disagreed and reversed the decision resulting in a sharing of the expense of the settlement with Chester Lam among the insurers, an application of the principles of equitable contribution.


McIntyre v Grigg, [2006] OJ No 4420 (CA)

This was an appeal from a jury verdict against a professional football player and our client, the McMaster student pub.  The issues included commercial host liability, the apportionment of liability, and the award of aggravated and punitive damages in this alcohol-fueled automobile negligence case.


Solway v Lloyd’s Underwriters [2006] OJ No 2059 (CA)

The trial judge found our client, an insurer under a Movers and Warehousemens’ Insurance Policy, entirely responsible for the plaintiff’s claims against the defendant, Davis Moving & Storage Inc.

The Court of Appeal set aside the decision of the trial judge and determined that our insurer client’s liability under the relevant policy was limited under the terms of the relevant coverage.


Leggat Estate v Leggat, [2003] OJ No 757 (CA)

We represented the defendant boat owner in this tragic boat accident case.  The trial judge determined that the limitation of liability under Part IX of the Canada Shipping Act had no application.  The Court of Appeal set aside the trial judge’s determination that the boat owner was liable for the negligence of the boat operator in this case and found that the decision at trial contained palpable and overriding error in other respects.

The plaintiff appellant’s application for leave to the Supreme Court of Canada was dismissed with costs.


Solway v Davis Moving & Storage Inc, [2001] OJ No 5049 (Gen Div), [2002] OJ No 4760 (CA)

We represented the moving company defendant.  The plaintiffs’ worldly possessions were loaded aboard the defendant’s trailer which was parked on the street outside of the defendant’s yard in early 1999 on account of the vast amount of snow that had fallen that year.  The trailer and the plaintiff’s possessions were stolen.

The issue at trial concerned the application of the limitation of liability clause contained in the bill of lading signed by the plaintiffs.

It was determined that the limitation clause was not enforceable although the judge denied the claims advanced by the plaintiffs for economic loss.

In a split decision in the Court of Appeal (Carthy J.A. dissenting), the appeal was dismissed.  Leave was sought in the Supreme Court of Canada but not granted.


Canadian Universities’ Reciprocal Insurance v. Halwell, [1998] OJ No 5322 (Gen Div), (2002), 166 OAC 196

The university insurer was seeking contribution from the insurer of the defendant for this claim, the insurer of the university having settled with the plaintiff.

At trial, the court determined that the university student in question did not have coverage under his parents’ homeowners’ policy of insurance and the action was dismissed.

The hearing in the Court of Appeal was delayed to receive the Supreme Court of Canada decision in Family v. Lombard (see above), however, the Court of Appeal agreed with the trial judge that the defendant was not entitled to coverage under the homeowners’ policy as a result of the application of the “business” exclusion.


Coast Capital Equipment Finance Ltd. v. Old Republic Insurance Company of Canada, 2017 ONSC 6694

Coast Capital pursued the insurer of a fleet of vehicles for liability coverage in circumstances where there was no OPCF 5 Endorsement in its favour. It was determined in the Superior Court in favour of our client that Coast Capital was not entitled to liability coverage.


Cosolo v. Geo A. Kelson Limited, 2017 ONSC 4150

Summary judgment was obtained in favour of our client against his former employer in circumstances where the former employer alleged breach of fiduciary duties on the part of our client as a defence to paying the debt owed.

It was determined there was no breach of fiduciary duty and judgment was awarded for the present value of the outstanding obligation plus the relevant legal costs.


Middleton v Pankhurst, 2016 ONSC 3157

A probation order arising from a conviction for careless driving prohibited an individual from operating a motor vehicle after 8:00 p.m., and after having consumed any alcohol. On the evening in question, around midnight and after having consumed alcohol, the individual crashed a snowmobile seriously injuring his passenger.

The trial decision answers the question as to whether the breach of parole affects the individual’s entitlement to liability coverage under his automobile policy.


Aquatech Logistics Inc. and Aviva Insurance Company of Canada v. Lombard Insurance Company, ACE INA Insurance, Lloyd’s Underwriters, Economical Mutual and Jevco, 2015 ONSC 5858

The accidental delivery of hydrochloric acid instead of chlorine to a swimming pool gave rise to a poisonous cloud of potentially deadly chlorine gas, and some litigation, including a class action proceeding. On behalf of the defendant and its insurer, this was an application against one insurer under the relevant comprehensive general liability policy and another insurer under a pollution incident liability policy for a sharing of the expense obligation.

The principals of equitable contribution were applied, and the insurers in question were required to pay their share of the defence.


Workplace Safety and Insurance Appeals Tribunal Decision No. 1307/13

As a result of a miscommunication, a heavy vehicle mechanic was badly injured when the trailer he was working on, and underneath, moved forward.

Although the tractor operator owned the tractor in question, the other indicia of independence were absent.

The tractor operator was found to be a worker of the WSIAT and the action in the Ontario Superior Court was dismissed.


Apparel licensee v Apparel licensor, ICC. In July 2008

Our firm squared off against 6 counsel, including a team led by one of the country’s most recognized trial counsel in this commercial dispute.  The hearing went 3 weeks in front of a panel of three senior international arbitrators of the International Chamber of Commerce concerning liability and damages arising from the termination of our client’s longstanding licensing agreement.

The hearing was the culmination of several years of intensive work in this document intensive, hard-fought battle.  Damages were in the 8 figures.  After the conclusion of the hearing, with the decision pending, settlement was achieved that was entirely satisfactory to our client, and the matter resolved.


ARG Construction v Allstate Insurance, [2005] OJ No 3073 (SCJ)

Coverage issue involving the duty of an insurer to defend a contractor pursuant to the terms of a comprehensive general liability policy of insurance among the issues considered is the propriety of a policy holder manipulating the pleadings made against it for the purpose of attracting insurance coverage.


Evans v Jenkins (2003), 20 CPC (5th) 299 (SCJ)

We were retained to represent the defendants, a tractor-trailer driver and owner, very shortly before the commencement of trial in circumstances where the plaintiff and the co-defendant had just entered into a Mary Carter Agreement.  The other party sought to prevent the jury from hearing evidence that had been developed by way of investigation and surveillance, as part of the Mart Carter Agreement.

The ruling of the court was that safeguards are necessary to prevent a distortion of the trial process and that one procedural safeguard would be to make the evidence available for use during the plaintiff’s cross-examination, and this was the order at trial.

The case settled reasonably shortly thereafter.


Laurie v Federated (Mutual) Insurance Co (1991), 2 CCLI (2d) 283 (Gen Div)

We represented the defendant in this case.  The plaintiff had fared poorly in front of the jury, having been found 75% contributorily negligent for his own injuries in this motorcycle accident case, but having failed entirely on account of the application by the jury of the doctrine volenti non fit injuria, perhaps one of the last trial decisions applying this concept (“to a willing person, no injury is done”) before a widespread change in the law.

The plaintiff, likewise, was unsuccessful in suggesting that he should have coverage under the insurance policy of his employer, for whom he occasionally operated a motor vehicle while at work, it being determined that he was not a person “for whose regular use the insured’s automobile is furnished”.


Hall v Tkachuk, Court File No. 920/89 (Parry Sound), aff’d Div Ct

The defendant removed a series of large trees from the road allowance that ran between the Lake Joseph cottage property of our clients and the lake itself.  The defendant wanted to improve his view south down Lake Joseph.

Since our clients did not own the property where the trees were located, could they nevertheless succeed in law against the defendant for his heinous actions? The trial judge determined they could, and awarded damages.

The decision was upheld by the Divisional Court.


See Patrick J. Monaghan’s biography here.

 


Christopher Reain

Toronto-Dominion Bank, N.A. v. Lloyd’s Underwriters, 2016 ONSC 2464; 2016 ONSC 8006; 2017 ONCA 1011

Successful appeal overturning a partial summary judgment that was granted to a Bank, in relation to an insurance policy for a $300M claim concerning a Florida lawyer and customer of the Bank who ran a Ponzi scheme involving the fraudulent sale of non-existing interests in structured settlements supposedly handled by his law firm.


Active Fire Protection 2000 Ltd v BWK Construction Co (2005), 200 OAC 275

Successfully upheld judge’s decision that dismissed a claim against our client as a result of a contractor providing a covenant to insure in favour of our client.


Loblaw Properties Limited v Turner Fleischer Architects Inc., 2017 ONSC 6127

Successfully resisted an attempt by a defendant to bring our client into the main action by way of a misnomer motion.  We were able to demonstrate that our client would suffer non-compensable prejudice if the relief was granted.

The decision involved a novel application of the doctrine of misnomer to a motion brought by a defendant.


Living Water (Pressure Wash Services) Ltd v Dyballa, 2011 ONSC 5695

Successfully dismissed an action against a client in Germany as an abuse of process.


Tornado ACS Canada et al v Living Water et al, 2010 ONSC 3001

Successful in obtaining an interim injunction in favour of our client upholding a non-compete clause in a dealer/distributor agreement to allow them to be first to market with a unique technology.


Sun-Times Media Group Inc v Royal & SunAlliance Insurance Company of Canada, [2007] OJ No 4544 (SCJ)

Christopher Reain successfully argued for the affirmation of a settlement fund made available to Sun-Times Media Group Inc. for the settlement of class actions under a Directors and Officers liability policy.


Hollinger Inc v American Home Assurance Co, [2006] OJ No 1791 (SCJ), [2006] OJ No 1898 (SCJ), [2007] OJ No 4424 (SCJ)

Christopher Reain and Clarence Lui successfully defended claims by Hollinger Inc. for repayment of defence costs arising from class actions against its officers and directors.


Bois v Ron’s Burner Services Ltd, [2004] OJ No 5788 (SCJ)

Successful trial decision on a subrogated claim against an oil burning furnace service contractor. We were able to prove that a fire started as a result of an ongoing failure on the part of the contractor to properly service the furnace.


Gauthier v Scottish & York Insurance Co Ltd, 2003 CanLII 46126 (Ont SCJ)

A trial victory on a questionable theft claim. The insured was unable to prove that a theft took place for coverage under the policy. Conversely, the insurer was able to prove their counterclaim based on fraud, and recovered their investigation costs.


See Christopher Reain’s biography here.

 


Clarence Lui

Toronto-Dominion Bank, N.A. v. Lloyd’s Underwriters, 2016 ONSC 2464; 2016 ONSC 8006; 2017 ONCA 1011

Successful appeal overturning a partial summary judgment that was granted to a Bank, in relation to an insurance policy for a $300M claim concerning a Florida lawyer and customer of the Bank who ran a Ponzi scheme involving the fraudulent sale of non-existing interests in structured settlements supposedly handled by his law firm.


Mabe Canada Inc v United Floor Ltd, 2016 ONSC 1060; 2016 ONSC 5794; 2017 ONCA 879

A record-breaking rainstorm caused a flood at the 300,000 sq ft Mabe warehouse in Brantford, Ontario causing widespread damage to the warehoused goods.

At trial, and on appeal, the focus was on the behavior of our client, a specialist concrete flooring contractor, and whether or not the flooring contractor had met the relevant standard of care pouring the concrete floor in this large warehouse.  Result:  action and appeal dismissed with (substantial) costs on the basis that the concrete flooring contractor was found to have met the relevant standard of care.


Taylor v Town of Georgina, [2010] OJ No 4882 (SCJ), 2010 ONCA 713

Successfully argued on behalf of the defendant that the plaintiff’s action for breach of contract should be dismissed for delay.


Aviva Insurance Company of Canada v DP Consulting, [2018] OJ No 1312 (SCJ)

In a first known reported decision in Canada, the trial judge found an unlicensed insurance “consultant” to have committed civil fraud against our insurer client for her rate evasion scheme.  The fraudster solicited and provided services to individuals through her website and Instagram account, and exchanged information with policy applicants on quotes she obtained through text messages. She misrepresented her identity to brokers and obtained policies on behalf of the applicants by providing false rating information.

A judgment including punitive and exemplary damages at an amount five times the sum awarded for compensatory damages, together with an order for accounting and tracing, was granted in the insurer’s favour.


Scottish & York Insurance Co Ltd v Tabidze (10 April 2017), CV-15-532119 (Toronto)

Judgment against the defendant interpreter complicit in an insurance rate evasion scheme involving 36 policies of automobile insurance, following a Mareva injunction that was issued during the litigation which froze the sale of her home.


Aviva Insurance Company of Canada v Samir (28 February 2017), CV-14-514641 (Toronto)

Judgment against an individual defendant, after the insurer indemnified its insured for a theft loss and discovered that the defendant, who is unrelated to the insured, had hid the stolen asset inside his garage.  The asset was secured through a search warrant executed at his residence by the police service.


Aquatech Logistics Inc. and Aviva Insurance Company of Canada v. Lombard Insurance Company, ACE INA Insurance, Lloyd’s Underwriters, Economical Mutual and Jevco, 2015 ONSC 5858

The accidental delivery of hydrochloric acid instead of chlorine to a swimming pool gave rise to a poisonous cloud of potentially deadly chlorine gas, and some litigation, including a class action proceeding. On behalf of the defendant and its insurer, this was an application against one insurer under the relevant comprehensive general liability policy and another insurer under a pollution incident liability policy for a sharing of the expense obligation.

The principals of equitable contribution were applied, and the insurers in question were required to pay their share of the defence.


Sterling Electrical Contractors Inc v Aviva Insurance, 2014 ONSC 823

Successful motion requiring an insured to post $20,000 in security for costs, in an action for coverage under a commercial insurance policy for a reported theft loss.  The action was subsequently dismissed, after the insured failed to pay the costs within the time period ordered.


McKenzie v Zhang, Aviva Insurance, 2013 ONSC 982; [2013] ILR I-5400

Successful motion confirming that an insurer’s obligation to indemnify under a policy must be determined as of when the loss occurred and not when the insurer became obligated to pay accident benefits.


Liu v University of Toronto, 2010 ONWSIAT 2352; 2011 ONSC 1522

A successful application brought on behalf of the University. The plaintiff was found to be in the course of employment at the time of the loss, with the result that his action is barred by statute.


Cellupica v Elite Insurance, 2011 ONSC CV-08-367672 (Toronto)

A jury trial victory representing the defendant insurer. The insured was unable to prove that a theft of a vessel occurred for coverage under an insurance policy or that the insurer acted in bad faith in denying the claim.


Apparel licensee v Apparel licensor, ICC. In July 2008

Our firm squared off against 6 counsel, including a team led by one of the country’s most recognized trial counsel in this commercial dispute.  The hearing went 3 weeks in front of a panel of three senior international arbitrators of the International Chamber of Commerce concerning liability and damages arising from the termination of our client’s longstanding licensing agreement.

The hearing was the culmination of several years of intensive work in this document intensive, hard-fought battle.  Damages were in the 8 figures.  After the conclusion of the hearing, with the decision pending, settlement was achieved that was entirely satisfactory to our client, and the matter resolved.


Comer v Pilot Insurance, [2008] OJ No 1211 (SCJ)

A trial victory on a questionable theft claim. The insured was unable to prove that a theft took place for coverage under the policy.


Hollinger Inc v American Home Assurance Co, [2006] OJ No 1791 (SCJ), [2006] OJ No 1898 (SCJ), [2007] OJ No 4424 (SCJ)

Christopher Reain and Clarence Lui successfully defended claims by Hollinger Inc. for repayment of defence costs arising from class actions against its officers and directors.


See Clarence Lui’s biography here.

 


Emily Stock

Zurich Life Insurance Company Limited v Branco, 2015 SKCA 71

Emily was part of the team of lawyers that successfully appealed the unprecedented punitive and aggravated damages award of almost $5M against two insurers, to bring the total amount to less than a fifth of the original award.


Cargojet Airways v Aveiro et al, 2016 ONSC 2356

In an action against the contractors and design professionals involving the construction of a new airplane hangar, Emily successfully had the action struck for being brought outside the applicable limitation period in a three day summary judgment trial.


Kayne v. The Owners, Strata Plan LMS 2374, 2013 BCSC 51

Emily was co-counsel in a five week trial involving whether a townhouse was a “leaky condo” and whether it had been properly remediated. The action was dismissed by the Court after considering the strength of the evidence tendered on behalf of Emily’s client, the remediation design professional.


Murray v. Langley (Township), 2010 BCSC 102

Emily and her co-counsel successfully resisted a summary judgment motion about the cause of the failure of a slope next to the Plaintiffs’ home. The Defendants were then able to move towards a resolution without the parties becoming further entrenched in the Court process.


Timberwest Forest Corp. v. Pacific Link Ocean Services Corporation, [2009] 2 FCR 496

Emily was second chair in a Federal Court trial involving the waiver of subrogation clause in a bill of lading and the doctrine of third party beneficiaries. Emily’s clients, the defendants, were found to be additional insureds and so have the benefit of the waiver of subrogation. The trial decision was upheld on appeal.


Newton v. Marzban 2008 BCSC 328

With her co-counsel (and friend and first mentor in law) David Wende, Emily represented a national accounting firm and one of its business valuation partners in a claim brought by an ex-wife against her ex-husband and all the advisors involved in her divorce proceedings. After 64 days of trial, the action was dismissed as against Emily’s client in its entirety.


See Emily Stock’s biography here.

 


Christine Matthews

Kempf v Nguyen, 2013 ONSC 1977; 2013 ONSC 1129; 2015 ONCA 114

A bicycle accident during the 2008 Becel Ride for Heart left our client with a collection of unfortunate physical injuries even after he survived a series of life threatening emergencies at hospital following the trauma of the accident. Patrick Monaghan brought this case to trial backed up by the research acumen of Christine Matthews. The result was a judgment in favour of the plaintiff to the extent of 100% on liability, damages having been agreed upon in advance.

Following the appeal (new trial ordered) the case was favourably resolved. 


Middleton v Pankhurst, 2016 ONSC 3157

A probation order arising from a conviction for careless driving prohibited an individual from operating a motor vehicle after 8:00 p.m., and after having consumed any alcohol. On the evening in question, around midnight and after having consumed alcohol, the individual crashed a snowmobile seriously injuring his passenger.

The trial decision answers the question as to whether the breach of parole affects the individual’s entitlement to liability coverage under his automobile policy.


Aquatech Logistics Inc. and Aviva Insurance Company of Canada v. Lombard Insurance Company, ACE INA Insurance, Lloyd’s Underwriters, Economical Mutual and Jevco, 2015 ONSC 5858

The accidental delivery of hydrochloric acid instead of chlorine to a swimming pool gave rise to a poisonous cloud of potentially deadly chlorine gas, and some litigation, including a class action proceeding. On behalf of the defendant and its insurer, this was an application against one insurer under the relevant comprehensive general liability policy and another insurer under a pollution incident liability policy for a sharing of the expense obligation.

The principals of equitable contribution were applied, and the insurers in question were required to pay their share of the defence.


See Christine Matthews’s biography here.

 


Ryan Tinney

Loblaw Properties Limited v Turner Fleischer Architects Inc., 2017 ONSC 6127

Successfully resisted an attempt by a defendant to bring our client into the main action by way of a misnomer motion.  We were able to demonstrate that our client would suffer non-compensable prejudice if the relief was granted.

The decision involved a novel application of the doctrine of misnomer to a motion brought by a defendant.


Aviva Insurance Company of Canada v DP Consulting, [2018] OJ No 1312 (SCJ)

In a first known reported decision in Canada, the trial judge found an unlicensed insurance “consultant” to have committed civil fraud against our insurer client for her rate evasion scheme.  The fraudster solicited and provided services to individuals through her website and Instagram account, and exchanged information with policy applicants on quotes she obtained through text messages. She misrepresented her identity to brokers and obtained policies on behalf of the applicants by providing false rating information.

A judgment including punitive and exemplary damages at an amount five times the sum awarded for compensatory damages, together with an order for accounting and tracing, was granted in the insurer’s favour.


Scottish & York Insurance Co Ltd v Tabidze (10 April 2017), CV-15-532119 (Toronto)

Judgment against the defendant interpreter complicit in an insurance rate evasion scheme involving 36 policies of automobile insurance, following a Mareva injunction that was issued during the litigation which froze the sale of her home.


See Ryan Tinney’s biography here.