This Week at the SCC (28/03/14)

The Supreme Court of Canada denied leave to appeal from two cases of interest to Canadian businesses, particularly insurers.

The application for leave to appeal in Malhotra v. State Farm Fire and Casualty Company, 2013 ONCA 326 concerns two orders appointing an umpire under s. 128 of the Ontario Insurance Act. The dispute was in respect to five properties owned by the applicant, Ms. Malhotra, and insured by the respondent.

The applicant maintained that each property required a separate umpire be appointed but the Court of Appeal dismissed the appeal of the decisions appointing a single umpire for all five properties. In its view, the power to appoint an umpire under s. 128 of the Insurance Act is discretionary, and nothing in s. 128 prohibits a judge from appointing a single umpire to deal with multiple properties. The Supreme Court of Canada denied leave to appeal.

Leave to appeal was also denied in Khazali (Succession de) c. Canadian Apartment Properties Real Estate Investment Trust (CAPREIT), 2013 QCCA 1975. This litigation arose when a piece of concrete from the ceiling of a parking garage fell onto a parked vehicle, causing the driver’s death. The deceased’s family sued the owner of garage. The respondent owner defended by moving to dismiss the action on the basis that the damage suffered was from an “accident” caused by an “automobile” within the meaning of the Automobile Insurance Act ("AAA") and that therefore the applicants were precluded from suit under the more general law of civil liability. The applicants countered that the parking garage was not a “public highway” within the meaning of the AAA, that the accident had occurred in a private place, that the vehicle had been stationary and that therefore the AAA did not apply to this case. Both lower courts dismissed the action, and the Supreme Court of Canada denied the appeal.

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions.  The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.

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