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Jul
2016
Noteworthy

Thresholds and Deductibles; The Struggle Continues

Author Richard F. Horak

In a recent edition of Noteworthy (Volume 2 of 2016) we referenced a number of recent cases in which the courts have dealt with these issues. Two more recent decisions are wor-thy of discussion. 

May
2016
Noteworthy

The Ontario Court of Appeal addresses the limitation period for claiming defence costs

Author Michael S. Teitelbaum

In Daverne v. John Switzer Fuels Ltd., 2015 ONCA 919, the Ontario Court of Appeal dealt with the issue of what limitation period applies with-in the context of an insurer’s duty to defend. The successful appeal found that the insured’s claim was barred by the limitation found in the subject liability policy of one year. In rendering their decision, the three-person panel considered an issue that has not been comprehensively addressed in Ontario.

Apr
2016
Noteworthy

Recent Threshold Decisions

Authors Greg Bailey and Jay M. Silber

This article outlines short notes about 4 recent threshold decisions.

Apr
2016
Noteworthy

Deductibility of Future Collateral Benefits: Two Helpful Decisions for the Defence

Author Richard F. Horak

While it has long been understood that Defendants in motor vehicle accident cases are entitled to a deduction for collateral benefits (past and future), in recent years case law has limited the availabil-ity of these deductions. However, two recent decisions have clarified the law in a significant manner.

Feb
2016
Noteworthy

Monk v. Farmers' Mutual Insurance Co. (Lindsay): Further Lessons in Policy Language and Interpretation

Author Michael S. Teitelbaum

In Monk v. Farmers' Mutual Insurance Co. (Lindsay), [2015] ONCA 911, the Court of Appeal reversed the motion judge's decision that the "faulty workmanship" exclu-sion applied to both direct and indirect damages. The Court ruled that the motion judge's interpretation of the exclusion was overly broad and that the damage to the insured's prop-erty was covered by the policy whether or not the damage constituted resulting damage from faulty workmanship.

Dec
2015
Noteworthy

Update on PJI and Deductibles – Substantive or Procedural

Author Richard F. Horak

Although we continue to await a definitive answer from the Court of Appeal, cases are being decided in which Judges are forced to make rulings on these issues (see the Noteworthy Issue 4 of 2015). One such decision is Cobb v. Long Estate, 2015 ONSC 6799, a decision of Justice Belch.

Aug
2015
Noteworthy

The Expanding Scope of the Absolute Pollution Exclusion

Authors Michael S. Teitelbaum and Yulia Pesin

The "absolute pollution exclusion" is a standard exclusion clause commonly found in Commercial General Liability ("CGL") policies. It purports to preclude coverage for losses arising out of the discharge or escape of pollutants at or from an insured's premises. The term "pollutant" is commonly defined in CGL policies as including "any solid, liquid, gaseous or thermal irritant or contami-nant, including smoke, vapour, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed".

Jun
2015
Noteworthy

Changes to Pre-Judgment Interest; Substantive or Procedural

Related Lawyer Richard F. Horak

As many of you are aware, the Insurance Act was amend-ed as of January 1, 2015, to change the rate of pre-judgment interest for general damages awards arising out of motor vehicle accidents. Previously the mandated rate was 5% per annum; given the state of interest rates over the last several years, this man-dated interest rate was con-siderably higher than "real" interest rates.

Apr
2015
Noteworthy

When an additional insured is not so named, what are the consequences?

Authors Michael S. Teitelbaum and Ashley Peacock

In Amello v Bluewave Energy Lim-ited Partnership, Justice Perell of the Ontario Superior Court of Jus-tice addressed the breach of a covenant to insure. The Court held that an oil transport company should not be able to circumvent its obligation to maintain liability insurance and have its oil supplier added as an additional insured in its liability policy. The Court ap-plied a 50% split of defence costs incurred to date and into the future between these two parties.

Feb
2015
Noteworthy

Moving Forward ... Into the Past; The Relationship Between Counsel and Experts

Author Richard F. Horak

As we all know, the pace of change in the 21st Century in the legal world (and in the real world) is often dizzying and seems to be ever increasing. Recent decisions of the Supreme Court of Canada and the Ontario Court of Appeal have placed greater emphasis on "culture shifts", the doctrine of "proportionality", etc..

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