not be sold as new. The insured made a
claim under its policy and was paid
approximately $1.9 million. The insurers
were able to recover about $900,000 in
salvage leaving a net subrogated claim of
about $1 million. The insured claimed that
it had also suffered certain other business
losses. A class action was commenced on
behalf of residents and owners of the property. The insured opted out of the class
action and commenced its own action,
which included the insurers’ subrogated
property claim. The insurers commenced
an action in 2010. They sought control of
the insured’s action. The insurance policy
in force at the time was issued by applicants. The insurance policy in effect contained a subrogation clause with wording
similar to s. 152 of the Insurance Act
(Ont.). It did not cover business or consequential losses.
HELD: Application dismissed. The
insured was in control of litigation until it
had been fully indemnified for its insured
and uninsured losses. There was nothing
in the plain language of the subrogation
clause to alter the insured’s right to control
the litigation until such time as it had been
fully indemnified. There was no reason to
imply a provision giving the insurer the
right of control in order to give business
efficacy to the contract, nor did an entitlement to control the litigation follow by
necessary implication from the insurer’s
right to be subrogated to the rights of the
insured and to bring action in the name of
the insured. The effect of the subrogation
clause, including the right of the insurer to
share proportionately in recoveries,
coupled with the duty of good faith, would
require the insured, although in control of
the litigation, to consider the insurer’s
interests, keep the insurer informed and
consult with it with respect to the prosecution of the litigation. There was no evidence to show that the insured’s business
loss claim was any less recoverable than
the property claim.
Zurich Insurance Co. v. Ison T.H.
Auto Sales Inc., [2011] O.J. No. 1487,
Ont. S.C.J., Strathy J., Mar. 25/11.
Digest No. 3048-012 (Approx. 16 pp.)
HELD: Application allowed. The
loaner vehicle did not constitute a rental
or leased vehicle. Distinguishing factors
included the absence of a written agreement pertaining to the use of the vehicle,
the absence of terms or restrictions on use
and the lack of specific date for return of
the vehicle. The dealership did not consider the vehicle to be a rental. The vehicle
was a discretionary loaner. Respondent
was ordered to defend and indemnify J as
first loss insurer with respect to the accident. Applicant’s policy constituted excess
insurance coverage.
Coachman Insurance Co. v. Lombard
General Insurance Co. of Canada,
[2011] O.J. No. 1236, Ont. S.C.J.,
Quigley J., Mar. 23/11. Digest No. 3048-
013 (Approx. 6 pp.)
THRESHOLD TEST – Plaintiff failed
to establish she sustained permanent
serious impairment of an important
psychological function.
Motion by defendants to determine if
plaintiff met the threshold test. Plaintiff was
involved in a motor vehicle accident in
2000. She brought an action for damages
arising from that accident and asserted that
her ongoing limitations were permanent
serious impairments of an important
physical, mental or psychological function
within the meaning of the Insurance Act
(Ont.). Plaintiff alleged that she suffered a
brain injury and described terrible pain in
her head, knee pain and other generalized
pain immediately following the accident.
HELD: Motion granted. Plaintiff’s
claims for non-pecuniary damages were
dismissed. Plaintiff had three other lawsuits outstanding. She was self represented
in all three. The testimony of plaintiff’s
other witnesses contradicted plaintiff’s
own evidence. None of them could address
the origin or cause of plaintiff’s subjective
complaints and none were positioned, geographically or temporally, to speak to fluctuations in her functioning throughout the
time since the accident or during the course
of this litigation and trial. The medical evidence did not establish that plaintiff had,
on a balance of probabilities, suffered any
permanent impairment of a physical function. The alleged chronic nature of certain
complaints notwithstanding, plaintiff had
long since recovered from her concussive
and soft tissue injuries. Plaintiff did not
suffer a permanent impairment of an
important psychological function.
Baines v. Hehar, [2011] O.J. No.
1306, Ont. S.C.J., Moore J., Mar. 23/11.
Digest No. 3048-014 (Approx. 11 pp.)
installation of a fire alarm and sprinkler
system at a cost exceeding $10,000. The
landlord had been fully aware of the need
for the capital improvements. The tenant
refused to sign the formal lease and left
the premises after the landlord refused to
negotiate further. The landlord then sued
the tenant for the rent for the remaining
term under the lease. The trial judge held
the sprinkler system was not covered
under the agreement for lease.
HELD: Appeal dismissed. The trial
judge was correct when he held that the
clause in the agreement for lease setting out
the tenant’s obligation to pay additional
rent could not include an expense relating
to a capital improvement. In law, there
should be no reasonable expectation that
the tenant’s duty of due diligence embraced
the obligation to determine whether the
landlord or the landlord’s contractor had
complied with provincial or municipal
legislation regulating the construction of
buildings in regard to matters of general
public safety. The taking of possession and
payment of rent by the tenant were insufficient facts on which to conclude the parties
entered into a binding contract.
Shunjing Trading Inc. v. E.B. Engineered Panels and Controls Inc., [2011]
N.B.J. No. 94, N.B.C.A., per Robertson
J.A. (Richard and Bell JJ.A. concurring), Mar. 31/11. Digest No. 3048-015
(Approx. 8 pp.)
NEGLIGENCE
MOTOR VEHICLE ACCIDENTS –
Appellant lessor remained owner of van
at time it was involved in accident
despite attempts by lessee of van to
effect a purchase.
Appeal from a judgment finding appel-
lant liable to indemnify respondent for
personal injuries sustained in a motor
vehicle accident. Appellant was the regis-
tered owner of the van involved in the
accident. The van’s driver and employer,
the lessee of the van, were liable for
respondent’s injuries and agreed to pay
her the sum of $1,000,000. Appellant
took the position that it was not the owner
of the van at the time of the accident. The
facts disclosed that appellant was regis-
tered as the lessor of the van. The lease to
the driver’s employer had expired long
before the accident but had been extended
to expire two days after the accident. The
employer had purported to purchase the
van by way of a letter to appellant, includ-
ing a cheque for the outstanding purchase
price. The cheque was not received by
appellant prior to the accident. The
employer was in default of the lease at the
time it purported to exercise the purchase
option, which meant it was not entitled to
exercise the option. The lease also pro-
vided that title to the van would not pass
to the employer until the purchase price
was paid in full.
MOTOR VEHICLE ACCIDENTS –
Court set aside small claims court judg-
ment awarding damages against appel-
Classifieds
INSURANCE
(MOTOR VEHICLE)
PRIMARY OR EXCESS COVERAGE
– Insurer of loaner vehicles at car
dealership was primary insurer for acci-
dent involving one of the loaner vehicles.
Application to determine priority of
automobile insurance policies. Applicant
issued a standard automobile insurance
policy to J. The policy included indemnity
for bodily injury sustained by a third
party. J took his vehicle to the dealership
for warranty work and utilized a loaner
vehicle insured by respondent. J was
involved in an accident while driving the
loaner vehicle. A third party action was
commenced against J and the dealership
in connection with the accident. Applicant’s policy provided indemnity and a
duty to defend an insured up to $1 million. Respondent’s policy provided indemnity and a duty to defend an insured up to
$5 million. At issue was which policy was
the primary insurer for the accident.
Implicit was whether the loaner vehicle
constituted a rental vehicle for the purpose of s. 277 of the Insurance Act (Ont.)
and a leased vehicle for the purpose of
subs. 277(1.1) of the Act.
MISSING HEIRS
Cogan & Assoc. International
probate research, locators
of missing heirs. Telephone:
519-770-0500, Fax: 519-770-0059.
www.heirtrace.com
PRIME TORON TO BEACH
STORE-FRONT
Great private office shares
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support staff with two busy
lawyers. darryl@gloverlaw.ca
LANDLORD & TENANT
COMMERCIAL LEASES – Agree-
ment to lease did not require tenant to
pay for installations required by any
government authority.
Appeal from a judgment dismissing the
landlord’s claim for unpaid rent. The landlord leased commercial space to the tenant. The agreement for lease provided that
it was binding but subject to the signing of
a formal lease. The formal lease was not
forwarded to the tenant until after it had
moved in. The formal lease required the
tenant to pay for the installations required
by any governing authority but the agreement for lease contained no such provision. The tenant subsequently learned that
the local fire department had indicated the
right of occupancy would be subject to the
RE: ESTATE OF DONALD
GEORGE ALEXANDER ALLAN
Anyone having any knowledge of a
Will of the late Donald George
Alexander Allan, of Bobcaygeon,
Ontario, who died on March 15,
2011, is requested to contact David
W. Acri of Fader Furlan Moss LLP,
Barristers and Solicitors, 134 Queen
Street East, Suite 200, Brampton,
ON, L6V 1B2, Phone: 905-459-6160
Ex. 231, Fax 905-459-4606.
123 JOHN STREET
steps from the University
courthouses, brick & beam lofts,
reception, amenities, up to 5 offices.
123johnstreet@gmail.com
NORTH YORK (Leslie & 401)
two modern offices available to
share with other solicitors and
litigation boutique. Reception, 3
boardrooms, copier, fax & parking.
416-224-2400 x 114.
FAMILY LAW LAWYER
A continually growing North York firm
with a solid client base has an
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To place your
CLASSIFIED AD
Please Call
Lynda Mills
905-415-5804 or
1-800-668-6481 ex. 804
lynda.mills@lexisnexis.ca
