DECISIONS

  • Visnjic v. LaSalle (Municipality), 2017 ONSC 2082.
    The plaintiff sought unobstructed use of an unopened road allowance abutting his home. The insured had passed a by-law restricting use of motor vehicles on unopened road allowances. The claim by the plaintiffs was defeated at trial with the insured municipality able to keep its blocks in place protecting its unopened road allowance from unauthorized use.
  • Bustamante v. The Guarantee Company of North America, 2015 ONCA 530.
    The insured appealed the decision of the lower court on the issue of the limitation period for non-earner benefits denied at a time when they were not available because an income replacement benefit was paid. In a unanimous decision, the Court of Appeal for Ontario upheld the decision of Justice Ramsay and affirmed that the limitation period ran from the date that a clear and unequivocal denial was given, regardless of whether the insured was receiving an income replacement benefit at the same time.
  • Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, [2014] O.J. No. 5938, 70 M.V.R. (6th) 1, 31 M.P.L.R. (5th) 269, 17 C.C.L.T. (4th) 1.
    The Court of Appeal overturned a trial decision holding a municipality 50% liable for the injuries suffered by a 16 year old, G2 driver who drove through a rural intersection with a clearly visible stop sign without slowing down or stopping. In doing so, the Court affirmed that a municipality's statutory duty to keep roads in repair only requires them to be safe for an ordinary driver "exercising reasonable care". A problem with the road that is only a risk to a negligent driver is not something the municipality can be held liable for. The fact that some drivers may break the law does not require municipalities to build and sign their roads to accommodate them. There is only one standard of reasonable driving, and that requires drivers to obey road signs.
  • Moser v. The Guarantee Company of North America, [26 September, 2014] Ontario Financial Services Commission A13-000812
    We successfully defended a claim for catastrophic impairment and post-104 week entitlement to ongoing accident benefits. This decision was pivotal for its clear denunciation of the use of wide ranges in catastrophic impairment ratings and the issue of double-counting in rating a cognitive impairment and a mental or behavioural disorder.
  • Bustamante v. The Guarantee Company of North America 2014 ONSC 6978
    In this case, the insurer had paid income replacement benefits to the claimant based on her application and election of that benefit, and denied entitlement to non-earner benefits during that period of time. The claimant returned to work on a full-time basis approximately two years after the accident. Years later, the insured asked for non-earner benefits and when refused, went to mediation and then sued. The plaintiff claimed for breach of contract and for mental distress caused by bad faith adjustment of her claim. We successfully moved for summary judgment on the ground that the limitation period had expired and that there was no basis for the claim of bad faith. In a subsequent endorsement for costs, the court awarded the defendant insurer its expenses on a substantial indemnity basis holding there was no foundation whatsoever for the plaintiff’s allegations of fraud and bad faith.
  • Guarantee Company of North America v. Kingsway General Insurance Company,(20 December 2013). A priority dispute in which we successfully argued that the saving provision found at section 3(2) of Ontario Regulation 283/95 applied and that the first party insurer was permitted to provide the second party insurer with notice of its intention to dispute priority more than 90 days after the first party insurer had received the claimant’s application for benefits. Priority was held to rest with the second party insurer as a result.
  • Wesenger et al. v. Forest Curling and Social Club, 2012 ONSC 799. We successfully moved for summary judgment on behalf of the defendant municipality on the grounds that it did not bear any responsibility for maintenance of the parking lot where the plaintiff’s fall occurred.
  • McLarty v. Hope, 2013 ONSC 6553. This was a successful defence of an application under the Municipal Conflict of Interest Act seeking to depose the sitting mayor of an Ontario municipality.
  • McLeod v. Corporation of the Municipality of Duton/Dunwich, 2014 ONSC 134, [2014] O.J. No. 26 (S.C.J.). This case involved the successful defence of a municipal road authority from a claim arising from a motor vehicle accident allegedly caused by potholes and gravel accumulation on a rural roadway. It was proven at trial that there was no actionable condition of non-repair on the roadway in question. It was further held that the municipal defendant had satisfied all of the statutory defences under section 44 of the Municipal Act, 2001, including the Minimum Maintenance Standards. This case is believed to be the first reported decision on the interpretation and application of the MMS provisions for potholes.
  • Anang, Ampomah, and Quarshie v. Guarantee Company of North America, [15 December, 2003] O.F.S.C.D. (Ontario Financial Services Commission) A02-001734. This case was a F.S.C.O. arbitration decision involving the successful defence of claims for statutory benefits by three individuals, who claimed to be in a motor vehicle accident in July of 2002. Arbitrator Allen accepted the insurer’s evidence, which was based on expert accident reconstruction. Cross examination of the applicants exposed inconsistencies in their evidence. Arbitrator Allen held that the applicants’ evidence lacked credibility and plausibility. The arbitrator determined that the accident did not occur as alleged by the applicants, and that they had not been involved in any motor vehicle accidents as they had claimed. As such, the applicants were not entitled to any statutory accident benefits. The claim was dismissed against the insurer.
  • Guarantee Company of North America v. State Farm Insurance et al., (9 Sep 2011, Arbitrator Lee Samis). A priority dispute where we successfully argued that the insurer did not receive a “completed application for benefits” until the signed application for benefits (OCF-1) was submitted. The insurer’s investigative efforts early on after the accident did not amount to a completed application and there was no waiver, estoppel, delay or deflection.
  • Frank v. Central Elgin (Municipality), (2010), 268 O.A.C. 85, 99 M.V.R. (5th) 1, 73 M.P.L.R. (4th) 1, [2010] O.J. No. 3796 (C.A.) (QL). In a unanimous decision, the Court of Appeal for Ontario upheld the trial judgment in Frank v. Municipality of Central Elgin (where Shillingtons LLP also acted as trial counsel), and affirmed the standard of care applicable to municipalities in the winter road maintenance context.
  • Kejay Investments Ltd. v. Frank Montgomery et at.,,(21 May, 2010), Chatham 3244/05 (Ont. S.C.J.). This was a successful defence of a motion for production of an insurance company’s legal opinions on coverage. The Plaintiffs’ argument that solicitor-client privilege over the opinions had been waived through allegations of bad faith was rejected by the motion’s judge, and a subsequent application for leave to appeal the decision was dismissed:
    # Ontario Ltd. et al v. Montgomery et. al, 2010 ONSC 6476.
  • Docherty et al. v. Lauzon et al., [2010] O.J. No. 5017, [2010] ONSC 1006 (S.C.J.). This case involved the successful defence of a municipality from a claim in negligence arising from the condition of a gravel roadway. In dismissing the claim, Campbell J. extensively discussed the standard of care of a road authority as it applies to rural highways and low-use roads.
  • J.S. v. Guarantee Company of North America, [2010] O.F.S.C.D. No. 105 (Ontario Financial Services Commission) (QL). This was a F.S.C.O. arbitration decision dealing with the interpretation and application of the limitation on rehabilitation benefits for the purchase of a new home contained in section 15(8) of the Statutory Accident Benefits Schedule.
  • Guarantee Company of North America v. Wawanesa Insurance Company and Zurich Insurance. (7 May, 2010, Arbitrator Lee Samis). This was a priority dispute arbitration where it was held that a no-fault benefits claimant who was a society ward of a child welfare agency was not a dependent, legally or factually, on the agency for the purposes of the Statutory Accident Benefits Schedule.
  • Gigliotti v. Fantino, [2010] O.J. No. 875 (S.C.J.) (QL). This case involved the successful defence of a police services board from a claim in negligence, false arrest and false imprisonment arising from deployment of a police emergency response unit in the course of a murder investigation.
  • Gore Mutual Insurance Co. v. Guarantee Company of North America, (22 May, 2009, Arbitrator Lee Samis). This was a priority dispute where it was held that a public transit bus was not "made available" for the use of its regular passengers for the purposes of no-fault benefits entitlement. The arbitrator's award was subsequently upheld on appeal: Gore v. Guarantee, (2010), 86 C.C.L.I. (4th) 279, [2010] O.J. No. 2925 (S.C.J.) (QL).
  • Anderson v. Hamilton (City), (2009), 64 M.P.L.R. (4th) 77, [2009] O.J .No. 4358 (S.C.J.). This case involved the successful defence of a claim against a municipality arising from a trip and fall incident on a sidewalk. At trial, it was proven that there was no dangerous condition on the sidewalk, and that the municipal defendant had a reasonable system of inspection and maintenance in place.
  • Essex Condominium Corp. No. 43 v. LaSalle, (2009), 69 M.P.L.R. (4th) 44, [2009] O.J. No. 5754 (S.C.J.) (QL). This case involved the successful defence of a municipality from a claim of negligent building inspection. It was held at trial that the municipality had a valid defence based on its policy to rely on the stamp and seal of third party engineers on submitted plans as proof that they complied with the Ontario Building Code and good design practices.
  • Charlton v. St. Thomas Police Services Board, (2009), 190 C.R.R. (2d) 103, [2009] O.J. No. 2132 (S.C.J.). This case involved a claim in negligence and false arrest against a police service that was dismissed via a summary judgment motion.
  • ING Insurance v. Guarantee Company of North America, (21 January, 2009 – Arbitrator Craig Brown). This was a priority dispute arbitration where is was held that a no-fault benefits claimant could not be considered a "dependent" on a non-natural entity (in this case, a child welfare agency).
  • Frank v. Municipality of Central Elgin, (2009), 55 M.P.L.R. (4th) 149, [2009] O.J. No. 220 (S.C.J.). This case involved the successful defence of a municipality from a claim arising from winter road conditions. It was demonstrated that the municipality met the standard of care applicable, and that it was not negligence despite the existence of icy conditions on one of its arterial roads.
  • Potter v. Ozols, [2008] O.J. No. 5824 (S.C.J.), aff’d [2009] O.J. No. 5184 (Div. Ct.). This case involved the successful trial of a subrogated action arising from flood damage to a residence. Liability was established without the use of expert evidence, and the trial decision was ultimately upheld on appeal.
  • Co-operators v. Guarantee Company of North America, (12 November 2008), Toronto 07-CV-344846 (Ont. S.C.J.). This was a successful priority dispute arbitration that was upheld on appeal.
  • Lee v. Bott, [2008] O.J. No. 1517 (S.C.J.). This case involved the successful application of an intentional act exclusion in a liability policy to a situation where the insured had caused fire damage to the Plaintiff’s property.
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