Another Big Win before the Court of Appeal – James Norton and James Tausendfreund were successful in defence of a s. 132 Application
November 2, 2020
On October 28, 2020, “James and James” received word that they were successful defending an appeal before the Court of Appeal saving our insurance client more than $2 million. A developer sought to recover damages arising from alleged negligence of an insured back in 2006 by bringing an application under section 132 of the Insurance Act. The developer had sued the insured back in 2008 ultimately obtaining a default judgment in that action. The insured never gave notice to the insurer of the action but under a policy Condition the developer was permitted, in the circumstances, to give notice of its claims as it did in 2017 – 9 years later. Having given notice, the developer argued it was entitled to be compensated for the value of its default judgment under the insurance policy. Under section 132, the developer was permitted to advance such claims but “subject to the same equities as the insurer would have if the judgment had been satisfied” and so to get around forfeiture of coverage due to the 9 years late notice, the developer argued it should be granted relief from forfeiture under section 129 of the Act. Zarnett J.A. for a unanimous court declined to grant the relief from forfeiture sought by the developer ending its claims to the insurance proceeds.
To read the Application decision and the Appeal decision, please click on below links