Michelin v. ACE INA, 2008 CanLII 28224 (ON S.C.) This decision in which we acted for the insurer, is notable in that it is the first time that a Canadian court has considered an Employee Benefits Liability Endorsement in a Commercial General Liability (“CGL”) policy and the scope of coverage that it provides to an insured. Justice Pattillo, The Ontario Superior Court dismissed Michelin’s Application seeking a defence on the basis that the underlying procedures involved neither a “negligent act error omission” or  “administration”. [2008] O.J. No. 2328

Chynoweth v. Economical, 2008 ONCA 0643 (CanLII) This Court of Appeal decision, reversed the decision at first instance. The Court held there was no duty to defend on the part of our insurer client. While the claim was for personal injuries, the allegations in the Claim did not arise out of the conduct of the insured’s business, as required by the policy.

1214528 Ontario Ltd. v. Continental [2005] O.J. No. 6376 Although a 2005 decision, this case was posted to Quicklaw in 2008. Lombard was successful on a motion for a declaration that it did not have a duty to defend. The insured developer was third partied by the City under a subdivision agreement and in negligence in respect of water damage sustained by a homeowner. Perell J. agreed with Lombard's submission that coverage was not available because based on the policy wording, the property damage that occurred did not take place during the policy period.

Ellie Morrow et al. v. Security National Insurance Company et al. Court File No. 07-CV-326289PD1 Lederer J., of The Ontario Superior Court ordered an insurer to pay the costs of an Application by our insured client to determine the duty to defend on a substantial indemnity basis, where it was found that the insurer was estopped from denying the duty to defend in the particular circumstances of the case. It was found that costs of $37,000 plus GST, while high, was not unreasonable given all that was at stake.

Hubbard v. Saunders, 2008 CanLII 57161 (ON S.C.) In this Ontario Superior Court decision, the issue was whether there was a duty on a driver entering a controlled intersection to anticipate danger before entering the intersection. Our client, the defendant, entered the intersection on a green light and was struck by a stolen vehicle that went through a red light. The plaintiff was in turn struck by the defendant vehicle. The action was dismissed against the defendant on the basis that he was the "dominant driver with a green light and entitled to the right of way. . . [and] was entitled to assume that all other drivers would obey the rules of the road and stop for the red light. There was no evidence on the record to suggest that the Defendant was aware of the risk posed."

Coulson v. City of Hamilton, 2008 CanLII 5149 (ON S.C.) In this Ontario Superior Court action where our firm acted for the defendant owner of  property adjacent to a municipal sidewalk, Glithero, J. dismissed the action holding that the defendant was not an occupier because it did not exercise the necessary degree of control over the sidewalk. In any event, there was no breach of duty if the defendant had been found to be an occupier.

Korody v. Bell, 2008 CanLII 69131 (ON S.C.) This was a preliminary motion at the outset of trial where our firm acted for ING which settled with the plaintiff pursuant to the uninsured coverage and took an assignment to pursue recovery from the defendant owner who raised a consent to operate defence. Quinn, J. held that the agreed statement of fact and the guilty plea to a charge of impaired driving causing bodily harm did not preclude ING from hearing evidence that the driver had consent to operate the defendant vehicle. The court also held the fact the driver was noted in default did not prevent him from testifying on the consent issue in the civil trial.

Dickson v. Broan-Nutone Canada Inc., 2008 ONCA 734  (CanLII) Successful opposition to appeal from trial decision,  in a product liability claim. At trial, the Court held that that the defendant manufacturer of a ceiling fan was not negligent in its manufacture, or otherwise, nor was it negligent in its failure to warn with respect to cleaning and maintenance. [2007] O.J. No. 5114.

Kamdar v. Lombard Insurance Company, 2008 CanLII 10383 (ON S.C.) Successful motion dismissing action with costs of $75,000 for the plaintiff's failure to seek an Order to Continue within a reasonable time following his assignment into bankruptcy.