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A Snapshot of our Recent Activity — Insurance Law

January 18, 2021 — First and foremost, we would like to wish you all a very happy and prosperous 2021 in both your personal and professional lives. We look forward to sharing with you a snapshot of our activities over the course of the year.

Since our previous six-month review, the firm has been very busy. In fact RSS has been quite active for a century, tracing its origins to 1921. It is thanks to the trust and loyalty of our clients that we are proudly celebrating an important milestone: our 100th!! Past achievements are the steppingstones to consistently providing continued reliable advice to businesses and individuals.

In this review we share with you a brief overview of our recent activity, illustrating the variety and depth of our skills.

Active Despite the Coronavirus

The pandemic has allowed for the creativity of the judicial system and legal profession. We began with a complete halt of all judicial activity in March, when the pandemic began to compel a move towards virtual and paperless trials and hearings. There is indeed always a positive in a negative… We recently participated in a virtual judicial settlement conference. In attendance were approximately 15 people. The entire process was pleasant, efficient, and seamless. All were in the comfort of their own surroundings, including the judge, without the necessity of being at the courthouse.

The Million-dollar Circle

  • Successful defence of an insurer against a claim by a company whose supplier was the object of identity fraud, which caused the company to make payments of close to US$2.7M to the perpetrators. The issue was the application of the social engineering fraud endorsement, with a coverage of $50K, or the computer fraud and funds transfer fraud endorsements, with a limit of $25M;
  • Institution of proceedings on behalf of certain underwriters at Lloyds, insurers of a commercial building-warehouse leased to Garfield Transport in recovery of an amount in excess of $1.5 million representing damages caused by a fire in relation to pallets stored outside of the warehouse;
  • Filing of arguments with the Supreme Court of Canada in opposition to SNC-Lavalin’s application for leave to appeal in the pyrrhotite case, a litigation involving many hundreds of buildings where the foundations are weakened by the presence of that element;
  • Defence of a company that had worked on the insulation for a municipal recreational and aquatic centre: The plaintiff sued the general contractor and the architects who had taken part in the construction of the centre, claiming over $2 million for alleged construction defects that caused water infiltrations. The architects claimed that the subcontractors, one of which was our client, should be impleaded to allow a conclusive solution to the case. However, the Court agreed with our position and concluded that impleading them could only be done by alleging that they had breached an obligation. Accordingly, it quashed the applications to have them impleaded;
  • Mandate to defend a major retail chain against a claim for $1.7 million by a professional musician who sustained a fall in the store’s parking lot.

Class Actions

  • Defending Pharmascience against a class action targeting several pharmaceutical companies: The plaintiff alleges that the defendants failed to provide adequate information on the risk of taking Zantac or its generic equivalents. The case is presently at the authorization stage.

Professional Liability

  • Representation of a notary in a lawsuit between a real estate developer and the Municipality of La Pêche: The developer requests an amendment to the “consideration” clause in the deed of land transfer, alleging that it is misleading or incomplete through an error on the notary’s part. The case required a completely virtual hearing planned for six days, in which nine witnesses were heard. It is presently under advisement;
  • Filing of an interim, and then interlocutory injunction in which the firm was representing a notary sued for breach of solicitor-client privilege by allegedly disclosing confidential information: To make things tougher, the mandate was received at 7 pm, presentable on the next morning before a judge sitting in chambers… while the COVID-19 crisis was raging!
  • Successful defence of a notary against a claim in damages by a lender facing difficulties in the repayment of the loan: The lender was alleging negligence on the part of the notary, claiming that she had failed in her duty to inform the plaintiff of the risks of the transactions;
  • Defending individuals sued as former school commissioners by a director general who was the victim of psychological harassment and illegal dismissal;
  • Successfully defended a notary against a claim alleging that he had wrongfully paid to a third party a sum of $50,000 that was the object of a conflict between the plaintiff, the hypothecary lender, and the defendants, sellers of the property;
  • Represented a notary that parties sought to question to shed light on an inaccurate will. The case raised issues of solicitor-client privilege.

Coverage Matters

  • Provided coverage advice to an insurer regarding coverage for the directors and officers of an insured facing U.S. Securities Class Action Complaints;
  • Provided coverage advice regarding a cyber breach at a large educational institution, which led to the interpretation of the business interruption clause: We were also involved with several major cyber ransomware matters which required the assistance of IT service providers and ransom negotiators;
  • Provided advice regarding the obligations of an insurer to pay a supplementary pension under a fiduciary liability insurance policy following alleged calculation errors on the part of the insured;
  • Advised an insurer regarding how allocation should be calculated between two insurers following the consolidation of two separate court files and provided coverage advice regarding a file dealing with the discovery of latent defects following the purchase of a new property;
  • Examination of coverage in the following cases:
  • The slaughter of seed stock, to determine whether the slaughter was the result of a loss;
  • The liability of a company’s directors for the payment of source deductions following the bankruptcy of the company’s parent;
  • A claim against a masonry sub-contractor for construction defects.

The Wide Variety of Insurance Cases

  • Successfully defended a municipality against a claim of $442K by a defeated bidder who was questioning the selection criteria applied by the municipality;
  • Upcoming representation of the City of Brossard before the Court of Appeal of Québec, to overturn a judgment holding the City liable following a request for proposals. RSS was not acting for the City at trial;
  • Defending a contractor against a claim of approximately $330,000 relation to construction defects on a new home.
  • Obtained a judgment dismissing a $830,000 claim against the notary who had drafted the mortgage agreement to finance the plaintiff’s property;
  • Obtained a judgment dismissing a claim of $460,000 for construction defects in a condominium building, a decision based for a significant part on the plaintiff’s significant procedural defaults during trial;
  • Institution of proceedings on behalf of CHUBB, insurers of Gestion Global Excel inc., against the City of Sherbrooke for water damages sustained as a result of the rainfall of October 31, 2019, allegedly resulting from the City’s inadequate sewer system;
  • Acting in several files against a municipality for water damage that occurred during abundant rainfalls: The claims are based on the alleged failures of the municipality’s sewage system. Claims have been filed in four cases before the Superior Court and around 15 cases before the Court of Quebec;
  • Institution of recovery proceedings on behalf of the insurers against the entities involved in the construction of a luxury condominium complex located in Westmount, for an amount in excess of $800,000 representing water damages following the rupture of a sprinkler pipe;
  • Defending an insurer against a claim under a collective life insurance: The beneficiary alleges that the conditions for coverage are not applicable to her since they had allegedly not been disclosed to the deceased;
  • Overseeing a case where a contractor claims nearly $500,000 from a municipality and Quebec’s department of transportation, who are allegedly responsible for the problems having caused delays in the execution of work by the contractor;
  • Involvement in a claim alleging construction defects in which the issue currently debated consists of the possibility, for the plaintiff, to file an expert’s report on the alleged defects: The Superior Court dismissed the claim, since the plaintiff could no longer adduce evidence of the deficiencies of the goods produced by the insured. The decision is presently under appeal;
  • Representing a developer and contractor having developed a condominium project allegedly stricken with construction and planning defects in the exterior covering materials, the air conditioning system and the means to have exterior access to the upper floors for maintenance work;
  • Defended an insurer against a claim for the indemnity payable under a life insurance guaranteeing a mortgage: The claim was dismissed since the insured had misrepresented his health.
  • Defending a company sued for the difference between the compensation paid by the CNESST — Quebec’s worker compensation board — to a worker injured on the company’s premises and the actual prejudice;
  • Defended cleaning and snow-removal companies against slip-and-fall claims having caused severe bodily injury;
  • Advised lessors regarding their defence against claims by lessees whose property had been damaged by fire and water;
  • Upcoming defence in two cases: The first arises from an accident that occurred during a Blue Jays game, when a spectator was hit on the head with a baseball bat; the second involves a customer who fell in the steam bath of a spa;
  • Insurance cases are sometimes laughable: The firm defended a Canadian insurer related to a Norwegian insurer against a claim by an individual for… $360 million for health problems allegedly caused by having been exposed to a chemical in Norway. The case was described as “wacky” by the Court.

Commitment to the Profession

On December 7, a virtual conference on subrogation by sole operation of the law (art 1656 of the Civil Code of Québec) was presented to the Chambre des notaires.

New Faces!

We are pleased with the return of Laurence Gauthier, who practiced with us for 10 years before leaving temporarily in 2015. Laurence is a seasoned litigator and over the years she has represented entities in diverse areas. More particularly, she has acquired an expertise in insurance litigation with a sub-specialty in insurance coverage matters as well as professional liability, civil liability, product liability, construction, and latent defects.

We had the pleasure of welcoming Jean-François Germain into our Insurance Law Practice Group. Jean-François has 25 years of experience with litigation matters, particularly insurance cases. He is also accredited by the Quebec Bar as a mediator in civil matters.

We are pleased to announce that Patricia Baram has been admitted to the firm’s partnership. Patricia joined the insurance practice group in 2017 and she acts primarily in files involving the liability of municipalities, general contractors, and professionals. This accomplishment reflects Patricia’s hard work and dedication to both RSS and its clients.

For more information, please contact:

Mariella De Stefano, Partner, Co-chair, Insurance Law Practice Group
T 514 393-4005
mdestefano@rsslex.com

Rachel Clément, Partner, Co-chair, Insurance Law Practice Group
T 514 393-7491
rclement@rsslex.com

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