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In a decision released July 2, 2008, Justice Cummings of the Superior Court of Justice Ontario held that the defence costs incurred by an insured are to be shared on a 50/50 basis between the primary insurer and the excess liability insurer.

In the case of St. Mary’s Cement Company Inc. (Applicant) and ACE INA Insurance (Respondent) St. Mary’s applied for an interpretation of the insurance policy issued by ACE INA Insurance.  St. Mary’s sought a declaration that ACE, the excess liability insurer, has a legal obligation to contribute to St. Mary’s legal costs associated with defending some 18 court actions arising from the supply of allegedly defective concrete which resulted in extensive property damage to residential premises.  The total damages claimed in respect of these actions are in excess of $27 million.

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Click here for the hyper-link of the case…

The following decision is important since it establishes that the onus is on a prospective insured to make full disclosure of any prior illnesses or injuries that would have an impact on an insurer’s decision to grant coverage.  Any omission by the prospective insured in this respect could very well lead to a finding of fraud and a reversal of coverage.

In the March 10, 2008 Quebec case of Falduto v Federated Life Insurance Company of Canada, Falduto had made an application in 1992 to double his life insurance coverage.  As part of this application Falduto also applied for disability insurance.  Formerly, Falduto had instituted an application for disability coverage in 1991 where he revealed treatment for a back injury that caused him to miss time at work within the last ten years.  This information was also disclosed on his 1988 application for life insurance.  However, before the 1991 disability coverage could be considered Falduto withdrew his application.

When Falduto reapplied for disability coverage in 1992 he did not fill out the medical information section on the new application.  A nurse came to Falduto’s house to do some tests and required Falduto to also answer a health questionnaire.  When asked if he had ever missed days of work or been disabled from an accident or illness in the previous ten years Falduto answered, no.  The disability Policy was subsequently issued to Falduto and in Falduto’s name.  In July 1995 and April 1996, Falduto had accidents for which he received disability benefits in the amount of $2,000 a month for a total of 14 months.

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At trial Falduto attempted to explain the omission in informing the nurse of his 1984 injury by claiming that since it was a continuation or relapse from the 1981 accident that he did not consider it to be within a ten year period.  The Court was not persuaded by Falduto’s testimony and found that his statements were a deliberate attempt to mislead in order to be approved for coverage.  The Court also rejected Falduto’s argument that the 1991 application, subsequently withdrawn, which did disclose the leaves of absence, should have been recognized as making full disclosure of his illness.

The Quebec Lower Court granted judgment in favour of the insurer by denying the plaintiff continued disability benefits and also ordering the plaintiff to repay the benefits issued by the insurer.   The decision was upheld by the Quebec Court of Appeal and leave to appeal was denied on September 4, 2008 by the Supreme Court of Canada.

On December 11, 2008, the Ontario Government announced it has decided to adopt a number of significant changes to the Ontario Civil Justice System.  These changes were based on recommendations made by former Associate Chief Justice Coulter Osborne who recently conducted the Civil Justice Reform Project.  Some of the more notable changes include:

•  Increasing the monetary limit for Simplified Procedure Actions from $50,000 to 100,000 effective January 1, 2010;
•  Increasing the monetary limit for Small Claims Court Actions from $10,000 to $25,000 effective January 1, 2010;
•  Parties will now be allowed up to 2 hours of Examination for Discovery in Simplified Procedure;
•  Requiring timelines early in the litigation regarding the discovery process;
•  Limiting Examination for Discovery to a maximum of 7 hours, unless agreed otherwise, or permitted by the Court;
•  Extending the timelines on mandatory mediation to allow for more meaningful settlement discussions.
•  Expert reports will have to be served earlier in the litigation process; and
•  Pre-trial motions will be required to take place earlier in relation to the trial date.

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It will take some time to understand how these changes will be implemented and adopted by lawyers and litigants in Ontario .  However, Attorney General Chris Bentley assures that the changes will increase access to justice while reducing litigation costs to everyday Ontarians. Former Associate Chief Justice Coulter Osborne was quoted as saying, “By acting on my recommendations, the Attorney General is reducing cost and delay for individuals and businesses who use our civil courts. The reforms reflect the need for proportionality in our civil justice, which means that straightforward, lower value cases should not take as long or cost as much as large, complex cases.

To view the Attorney’s General’s Press release go to: http://www.attorneygeneral.jus.gov.on.ca/english/news/2008/20081211-civil-nr.asp

There is no question that Obama’s “Buy American” Rule breaches Chapter 10 of the NAFTA regarding government procurement. This allows Canada to argue that Canada and Mexico should be exempt from this new legislative requirement.

If no exemption is given, Canada might have to suck it up as a cost of doing business with the United States – just like Canada did on the Softwood Lumber settlement. There is no effective dispute settlement mechanism. If the United States persists, the only recourse for Canada would be to cancel the NAFTA and that would not be a remedy at all given our dependence on the American market and the current Congressional wave of protectionism.

NAFTA Article 1003 requires the U.S. Federal Government to allow Canadian companies to bid on a non-discriminatory and national treatment basis. This means that the United States must treat Canadian bidders the same as American bidders.

NAFTA Article 1001 requires the U.S. government to allow Canadians to bid on U.S. Federal contracts in excess of $50,000.00 for goods and services, and $6.5 million for construction contracts (in 1994 dollars subject to inflation). The United States’ Schedule lists more than 50 government entities including such departments as Agriculture, Commerce, Education, Housing, Justice, Labour State, USAID, Treasury Transportation, EPA, and even the Executive Office of the President.  There are other forms of procurement made available to Canadian bidders but this is the largest category.

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A very effective mechanism would exist if disputes relating to government procurement were subject to investor-state arbitration under NAFTA Chapter 11. This Chapter allows for binding commercial arbitration to be undertaken when national treatment has been denied, amongst other provisions. NAFTA Article 1108(7) excludes claims regarding national treatment based on a failure to provide national treatment.  A Canadian bidder would have to argue that the “Buy American” provision amounts to a denial of the minimum standard of treatment at customary international law (1105), or constitutes conduct tantamount to expropriation (1110).  This would be difficult.

The only dispute mechanism left is NAFTA Chapter 20.  This mechanism is a poor cousin to the WTO dispute settlement mechanism, and is rarely used with only three decisions issued by NAFTA Chapter 20 panels in fifteen years (one against Canada and two against the United States). The only remedy is one of retaliation which generally means applying a tariff at the border on certain American exports. The dispute panel lacks the authority to order the United States to immediately withdraw the “Buy America” Rule or to provide Canada an exemption.

In the end, the only recourse is provided by NAFTA Article 2205 which allows a Party to withdraw from NAFTA six months after it provides written notice. This is really no remedy at all because Canada cannot risk losing market access to the United States when it is so dependent on the American marketplace. As a result, Canada may just have to grin and bear it and continue to work quietly to preserve as much market access as possible in the circumstances.