Dismissed (5)

 

Civil Procedure/Professions: Motions to Dismiss 

Wallbridge v. IAP Claimant H-150192020 ONCA 270 (39235)
The Respondent was a member of a First Nation and a survivor of an Indian Residential School. He is also a class member of one of the Indian Residential Schools Survivors’ Class Actions settled in May 2006 by the Indian Residential Schools Settlement Agreement (“IRSSA”), which was approved by way of a court order in December 2006. In 2009, the Respondent retained the Applicants, Mr. Wallbridge and the Wallbridge law firm, to bring an independent assessment process claim to seek compensation for the harms he suffered at the Residential School. His application and subsequent review hearing were both rejected on the basis his evidence was not sufficiently reliable. He subsequently retained new counsel and a rehearing of his claim before a new adjudicator was conducted. In July 2017, he was awarded compensation. The following month, he commenced an action against the Wallbridge Applicants, another lawyer, and Canada for the psychological harm he claimed he suffered when his claim was initially rejected. He says that had the Wallbridge Applicants done their job properly in the first instance he would have been believed, as he subsequently was, and would have avoided the psychological harm that came following the dismissals of his claim. The Wallbridge Applicants took the position the release clauses in the IRSSA that were incorporated into the 2006 approval order barred the Respondent’s action. They brought a motion to dismiss the Respondent’s action, asserting it was frivolous, vexatious and an abuse of process. The Applicants’ motion was dismissed. This decision was upheld on appeal. “The application for leave to appeal…is dismissed with costs.”

Criminal Law: Mr. Big 

Baranec v. R., 2020 BCCA 156 (39316)
Mr. Baranec was the target of a Mr. Big operation in British Columbia. He told undercover officers he committed three murders, including the murder of Mrs. Bahia in Surrey. He described details of that murder which the police considered held back from public release but he later claimed knowledge of these details came from extensive media coverage of the murder. During the Mr. Big operation, police officers pressured Mr. Baranec to go to Saskatchewan to re‑enact one of the other murders and to locate a body. At the time, Mr. Baranec was subject to a conditional sentence order that required he remain in B.C. unless he had permission to leave from his sentence supervisor or the court. The officers obtained legal advice from a lawyer of the Department of Justice that arranging for Mr. Baranec to go to Saskatchewan without permission, and pressuring him to go, would not be aiding and abetting an offence. Without leave of a judge or the sentence supervisor, the undercover officers took Mr. Baranec to Saskatchewan. They temporarily removed the record of his sentence from a national registry so no other police officer inadvertently would intervene. They did not prevent Mr. Baranec from breaching curfew and alcohol prohibition conditions of his conditional sentence. The trial judge admitted the Mr. Big admissions into evidence. A jury convicted Mr. Baranec of the first degree murder of Mrs. Bahia. The B.C.C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”

Family Law: Divorce 

A.D. v. A.O., 2020 QCCA (39197)
There is a publication ban in this case, as well as a publication ban on the party.  The Court file contains information not available for inspection by the public, in the context of divorce and issues related thereto. “The application for leave to appeal…is dismissed with costs in favour of the respondent. Kasirer J. took no part in the judgment.”

Insurance: Duty to Defend 

Intact Insurance Company v. Clauson Cold & Cooler Ltd., 2020 ABCA 161 (39241)
The Respondent, Clauson Cold & Cooler Ltd. (“Clauson”), operated a cold warehouse storage business. Its customer stored frozen products in its warehouse. As a result of occurrences in 2015 and 2016, the products of two of its customers thawed and were damaged. Those customers sued Clauson, alleging that due to Clauson’s breach of contract and negligent performance of contract, they suffered loss of products under refrigeration (the “underlying actions”). The Applicant, Intact Insurance was Clauson’s insurer. Clauson brought an application seeking a declaration Intact had a duty to defend it in the underlying actions. The Master allowed Clauson’s application. The decision was upheld on appeal to a judge of the Court of Queen’s Bench and to the Alta. C.A. While the duty to defend language appeared in the commercial general liability form, the courts were of the view the language of that provision pertained to the whole of the policy. “The application for leave to appeal…is dismissed with costs.”

Insurance: Duty to Defend; Multiple Insurers 

Markham (City) v. AIG Insurance Company of Canada2020 ONCA 239 (39192)
A young boy watching his brother’s hockey game at a community centre was injured when a hockey puck flew into his face. Through his litigation guardian, he sued both the City of Markham, who owned and maintained the rink at the community centre, and Hockey Canada, who is involved in oversight of hockey programs in Canada. He claimed his injuries were caused by the negligence of the City and Hockey Canada. The City is insured by Lloyd’s under a commercial general liability (“CGL”) policy. Hockey Canada and the hockey team and hockey association who rented the City’s rink are insured by AIG Insurance under a CGL policy. The City is also an additional insured to Hockey Canada’s insurance policy with AIG. The City and AIG brought competing applications to determine which insurers had a duty to defend the action and participate in the defence. The City and Lloyd’s claimed only AIG had a duty to defend the City. They also claimed there was a reasonable apprehension of conflict of interest in counsel retained and instructed by AIG. AIG admitted its duty to defend but claimed Lloyd’s owed a concurrent duty to defend and to contribute to the defence costs. The applications judge allowed the City’s application and dismissed AIG’s counter-application. The C.A. allowed AIG’s appeal, holding both AIG and Lloyd’s have a duty to defend and to contribute equally to the City’s ongoing costs of the defence. It also held AIG retained its right to participate in the City’s defence — AIG and Lloyd’s could jointly retain and instruct counsel provided a specified protocol was implemented to safeguard the interests of all parties. “The application for leave to appeal…is dismissed with costs.”