State Farm vs. Aslan

In this significant procedural decision on the right to an Examination Under Oath (EUO), Justice Charles Hackland of the Ontario Superior Court of Justice, has ruled that an insurer must provide “reasonable advance notice of the reason or reasons for the examination” as a “condition precedent to the insured’s obligation to attend under section 33(4)3 of the schedule”.

Justice Hackland went on to say that the reasons given must be “something more than determining entitlement to benefits”. In this case, involving seven catastrophically injured claimants, the judge found that State Farm’s notice was inadequate and that the claimants were not required to attend the EUO. The judge found that the obligation to inform the insured of the specific reason for the EUO was “reflective of the good faith obligations owed by an insurer and an insured in contracts of insurance….”.

This decision overrules the recent FSCO decision by an arbitrator in Kivell v State Farm.

L Craig Brown of Thomson Rogers was counsel to the claimants’ lawyer Miryam Gorelashvili.

On August 10, 2015, the Ontario Court of Appeal released its decision in Fernandes v. Araujo confirming a motor vehicle owner’s liability under the Highway Traffic Act for its driver’s negligence is triggered solely based on the owners consent to possession and not the manner in which the vehicle was being operated.

Stacey L. Stevens and L. Craig Brown successfully argued this issue before the Court of Appeal’s five member panel on June 18, 2015.  In this instance, Ms. Fernandes was a passenger on an ATV which was involved in a single vehicle collision on a public highway.  Following the collision, the ATV owner took the position that while he consented to the operation of his ATV on his farm, he did not consent to it being driven on a highway. The owner’s insurer, Allstate, brought a motion for summary judgment in an attempt to dismiss the Plaintiff’s claims against the owner on the basis that he was not vicariously liable for the driver’s negligent operation of his ATV. Stacey L. Stevens defeated this motion. Allstate appealled.

As a result of Stacey and Craig’s efforts, the Court of Appeal overturned one of its previous decisions eliminating a long-standing conflict in this area of the law and preserving the rights of innocent accident victims to look to a motor vehicle owner for compensation for their injuries.

Melvin v. Ontario (Correctional Services) ONSC 5432
August 23, 2013

Court confirms that damages awarded at trial cannot be reduced by value of future accident benefits where entitlement to benefits is not “beyond dispute…in every respect.”

In a recent court decision, Thomson Rogers personal injury lawyers L. Craig Brown and Robert M. Ben won an important ruling for a brain-injured client whom David F. MacDonald and Michael L. Bennett successfully represented at trial. The court agreed with Thomson Rogers’ argument that the value of future accident benefits cannot be deducted from a judgment awarding damages for future care. The defendant is under a “very strict onus of proof” to show that the plaintiff’s entitlement to future benefits is “beyond dispute…in every respect.” The onus cannot be met absent a “guarantee” from the insurer that benefits will continue to be paid in the future. See the Judge’s reasons for decision here.

Quadriplegic Motor Vehicle Accident Trial (Spring, 2011)

In the spring of 2011, Craig Brown, Darcy Merkur and Stacey Stevens were trial counsel to a motor vehicle accident victim who had lost control of his motor vehicle within days of his vehicle passing a safety inspection. The plaintiff was catastrophically impaired in the accident and was receiving catastrophic accident benefits from his accident benefit insurer. The claim was for in excess of $15 million. Three weeks into this jury trial, in the Ontario Superior Court of Justice, a resolution was reached between the parties. The details of the resolution are confidential. With permission of the plaintiff, you can review a copy of the plaintiff’s opening statement at the link below (to product privacy, all names have been redacted).

• Opening Statement – Geoffrey B v. Mechanic Company, et al

A Certification and Settlement Approval motion with respect to a class action against the directors of a bankrupt investment company that were alleged to have breached their duty to the customers of that company. The $21.25 million settlement was approved. For details see: the reasons of Justice Perell.

In this class action lawsuit, Craig Brown and Darcy Merkur were successful in having a class action certified on behalf of users of a Parkinson’s Disease drug that claim they suffered compulsive behaviour, such as compulsive gambling, as a result of using the drug.

• Banerjee v. Shire Biochem Inc. et al., 2010 ONSC 889 (CanLII),
  February 8, 2010

• Baxter v. Canada (Attorney General), 2006 CanLII 41673 (ON S.C.), December 15, 2006
• Baxter v. Canada (Attorney General), 2005 CanLII 18717 (ON S.C.), May 30, 2005

• Cowles v. Balac, 2006 CanLII 41806 (ON C.A.), December 15, 2006
• Cowles v. Balac, 2006 CanLII 34916 (ON C.A.), October 19, 2006
• Cowles v. Balac, 2005 CanLII 2038 (ON S.C.), January 27, 2005
• Cowles v. Balac Judgement, January 22, 2005
• Cowles v. Balac, 2004 CanLII 42936 (ON S.C.), November 19, 2004
• Cowles v. Balac, 2004 CanLII 35085 (ON S.C.), November 4, 2004
• Cowles v. Balac, 2004 CanLII 35084 (ON S.C.), November 4, 2004

• Lytle v. Toronto (City), 2006 CanLII 33300 (ON C.A.), September 27, 2006
• Lytle v. Toronto (City), 2004 CanLII 12155 (ON S.C.), April 15, 2004

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