D'Arcy McGoey

Phone: 416.507.1806
Email: dmcgoey@tgplawyers.com
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RECENT AND NOTABLE DECISIONS OF D'ARCY MCGOEY

Glasgow v. The Dominion of Canada General Insurance Company (September 15, 2011, Workplace Safety and Insurance Appeals Tribunal, Decision #1694/11). Mr. McGoey succeeded in obtaining a Workplace Safety and Insurance Appeals Tribunal ruling that the right of action of the claimant as against a tort defendant was taken away. The Tribunal accepted Mr. McGoey's submission that the plaintiff, who was returning from a golf outing to his place of business at the time of the accident, was in the course of his employment.

The Dominion of Canada General Insurance Company v. Certas Direct Insurance Company (July 15, 2009, Ct. File No. CV-08-00357178). This successful appeal from the award of an arbitrator in a priority dispute considers the jurisdiction of an arbitrator to allow or disallow a dispute to continue where there is alleged delay after the expiry of the 90 days referred to in s. 3(2) of Ontario Regulation 283/95. The appeal court agreed with Mr. McGoey's submissions that an arbitrator, having found that an insurer met the 90 day test, has no jurisdiction to consider alleged delay beyond the 90 day period.

Gore Mutual Insurance Company v. State Farm Mutual Automobile Insurance Company (June 12, 2009, Arbitrator Shari Novick). This successful insurance priority dispute considered the deemed named insured provisions of s. 66 of the SABS in the context of a Social Worker choosing to use a family vehicle to transport a client. The Arbitrator dismissed the arbitration against our client, agreeing with Mr. McGoey's submissions concerning the interpretation of s. 66.

Starogiannis v. Extreme Personal Training Inc. (Ont. S.C.J., September 29, 2008, Master Dash). Mr. McGoey was successful in this decision in resisting a motion to add his client as a party defendant after the expiry of the limitation period under the new Limitations Act. The Court agreed with Mr. McGoey's submission that the evidence at the motion was insufficient to prove that the plaintiff had exercised due diligence in ascertaining the name of the proposed defendant in a timely manner. The motion was dismissed as against Mr. McGoey's client and the plaintiff was ordered to pay costs in the amount of $2,500.00.

Lloyd’s Underwriters v. Dominion of Canada General Insurance Co. (2008), 89 O.R. (3d) 509 (S.C.J.). This successful decision, an appeal from the decision of a private arbitrator, considered the limitation period applicable to a Loss Transfer dispute under section 275 of the Insurance Act. As a result of the decision, Mr. McGoey was successful in recovering over $385,000 in Loss Transfer reimbursement plus interest and costs.

Cervo v. State Farm Mutual Automobile Insurance Company (2006), 83 O.R. (3d) 205 (C.A.). This successful Court of Appeal decision upheld a lower court’s ruling that an injured claimant was barred from recovering SABS benefits because of late notification to the insurer. The court considered the role of a claimant’s counsel in the notification process and the Relief from Forfeiture provisions of the Insurance Act and in the SABS.

Shipman v. Dominion of Canada General Insurance Co. (2004), 73 O.R. (3rd) 144 (C.A.). Mr. McGoey was successful on appeal in arguing that the Motor Vehicle Accident Claims Fund was responsible for the claimants' damages in the context of a hit and run fatality accident. The Court of Appeal considered the excluded driver provisions of the Insurance Act, the Regulations and the Policy. The court held that there was no liability coverage under the policy.

Coulter v. Lavignasse (2003), O.T.C. 439 (Ont. S.C.J.). Mr McGoey succeeded at trial in obtaining a dimissal of the action on the basis of a threshold defense and a damages award below the statutory deductible.

Royal & SunAlliance Insurance Company v. AXA Insurance Company (November 21, 2003, Arbitrator Bruce Robinson). This successful Loss Transfer decision considered the relationship between Rules 7 and 12 of the Fault Determination Rules.

Olenicz v. Torvest Corporation (July 31, 2002, Workplace Safety and Insurance Appeals Tribunal). Mr. McGoey succeeded in obtaining a Workplace Safety and Insurance Appeals Tribunal ruling that the right of action of the claimant as against a tort defendant was taken away. At issue was whether the claimant was a "worker" or an independant contractor.

Louvarz v. Dominion of Canada General Insurance Co. (February 25, 2000, FSCO File No. A98-000446, Arbitrator David Evans). This successful arbitration considered a claimant’s claim for income replacement and other benefits under the SABS where credibility was an issue.

Dominion of Canada General Insurance Co. v. Zurich Insurance Co. (September 27, 1999, Private Arbitrator Robinson). Mr. McGoey succeeded in this priority dispute in proving that a mother was principally dependent on her son.

Doussept v. Canada Post, [1998] O.J. No. 4506 (C.A.). Mr. McGoey successfully relied on, through appeal, the terms and conditions of an indemnity agreement. At issue was whether the terms of the agreement were broad enough to indemnify against claims arising out of the client’s own negligence.

Christakos v. Dominion of Canada General Insurance Company (1997), O.T.C. 241 (Gen. Div.). In this case, the court considered its jurisdiction to stay a FSCO SABS Arbitration and ruled on the requirement of a SABS claimant to mediate a dispute before commencing an action or arbitration. The Court agreed with Mr. McGoey's submissions concerning these issues.

Kahsay v. Mesic, [1995] O.J. No. 2072 (Gen. Div.). Mr. McGoey succeeded on motion at the outset of trial in obaining a dismissal order on the basis that the injuries of the claimant did not meet the threshold provisions of the Insurance Act.

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