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Insurance Litigation

The Insurance Litigation Group at Stikeman Elliott, led by highly regarded practitioners and consistently recognized nationally and internationally, has earned a reputation as a market leader in Canada for its in-depth knowledge and expertise in insurance law litigation and for its excellence in representation of Canadian and international insurance clients.

Our Group's experience covers a wide range of matters and issues, including class action defense, disputed claims/coverage litigation, actuarial and reserve disputes, directors' and officers' liability, environmental, professional negligence, marine, aviation and energy claims, and actions arising from corporate transactions in the industry. This experience allows our practitioners to defend large complex insurance disputes, including particularly disputes that may threaten the reputation, or even future prospects, of affected clients.

Experience at every level of Canada's courts and tribunals

Members of the Insurance Litigation Group have extensive trial and appellate experience and are regularly retained to act in a wide range of proceedings, from motions and applications to complex trials and appeals at all levels of provincial and federal courts. Members of the Group appear regularly before various regulators, boards, tribunals, arbitration panels, commissions of inquiry and the governing bodies of a range of institutions and professional disciplines.

Cases dealing with industry-wide issues

Our practitioners have represented insurers and insurance industry groups, such as the Insurance Bureau of Canada ("IBC"), on matters that affect the industry as a whole and in dealings with governments, including, for example, as:

  • Lead counsel in the Alberta Court of Appeal in the constitutional "cap" case dealing with the legality of caps on damages under the provincial auto insurance regime and on the subsequent application for leave to appeal to the Supreme Court of Canada (2009);

  • Lead counsel for the IBC in the Supreme Court of Canada in the Childs "social host" case (2006);

  • Lead counsel for the IBC in two Supreme Court of Canada cases (Vytlingham and Herbison) which determined the breadth and scope of standard indemnity provisions under Canadian automobile insurance policies (2006);

  • Co-counsel in the Unifund v. ICBC (Insurance Corporation of British Columbia) case in the Supreme Court of Canada. The case involved complex issues concerning conflicting regulatory insurance regimes in different provinces and the loss transfer rules that may apply in inter-jurisdictional cases.  The favourable decision is significant for all inter-jurisdictional property and casualty insurers in Canada (2002);

  • Lead counsel for the IBC and all the major Canadian property and casualty insurers in respect of a proposed court challenge to the proposed changes to the insurance legislation in New Brunswick and Nova Scotia (2004); and

  • Co-counsel, successfully representing the insurance industry in class actions brought against insurers in the C$2B "salvage interest class action" before a five member appeal in the Ontario Court of Appeal. (Lead counsel on the main argument and the appeal dealing with full evidentiary record before the Court.)  This case was significant in that it resulted in the Ontario Court of Appeal reversing its 2002 decision concerning deductibles in total loss cases.  Also acted as co-counsel in the "salvage interest cases" in the Alberta and British Columbia lower courts and Courts of Appeal.

Other Significant Cases

  • Korea Deposit Insurance Corporation (KDIC) - in relation to the bankruptcy and receivership of 3 Eau Claire Developments Inc., including the successful recovery for KDIC of outstanding loan amounts.

  • Chubb Insurance - defending several insurers in litigation under several directors & officers policies involving terminated directors and officers of Nortel Networks;

  • Magnatrax US Litigation - representing several excess insurers located throughout the world in a multi-million dollar directors and officers coverage dispute involving M&A litigation in the U.S.;

  • American International Group, Inc. - representing the independent directors of AIG in the defence of a cross-border securities class action alleging billions of dollars in damages in relation to the credit default swap issue;

  • Lloyd's Canada Inc. & Lloyd's Corporation - in matters currently pending before the Superior Court of Quebec, relating to insurance brokers issuing fraudulent insurance coverage and collecting premiums (allegedly without authorization and without remitting such premiums to insurers);

  • Lloyd's Syndicates and other London and Bermuda-based insurers - represented various insurers in connection with two distinct arbitrations relating to major claims totalling over C$500M, made pursuant to an Alberta oil sands course of construction insurance policy;

  • Portus - represented two insurers/financial institutions in the Canadian class actions in successfully defending claims relating to investments in hedge funds;

  • Transamerica Life - in one of the early "vanishing premium" class action cases in Canada (successful in converting the claim to an individual action and achieving a favourable settlement);

  • Cavell - as lead counsel in the Ontario Superior Court of Justice and the Ontario Court of Appeal in the first Canadian implementation of a U.K. solvent scheme of arrangement; and

  • Liberty Mutual Group - in respect of asbestos claims advanced in hundreds of U.S. state courts, with the insurance coverage issues being litigated in Ontario.

Global Rankings & Achievements

Stikeman Elliott's Insurance Litigation Group is continually recognized for its excellence, including, recently, recognition in:
  • Benchmark Canada

  • The Best Lawyers in Canada

  • The Canadian Legal Lexpert Directory

  • The International Who's Who of Insurance and Reinsurance Lawyers and The International Who's Who of Business Lawyers

  • Legal Media Group's Guide to the World's Leading Insurance and Reinsurance Lawyers and Guide to the World's Leading Litigation Lawyers

  • Lexpert's Guide to the Leading U.S./Canada Cross-border Litigation Lawyers

Reinsurance Disputes

Group members have acted as counsel in many large reinsurance disputes and are very familiar with the arbitration procedures under most reinsurance agreements. The Group has provided opinions on the interpretation of reinsurance agreements and the possible exposure under the underlying policies.

Most recently, the Group prosecuted a claim through arbitration for reinsurance recoveries against an off-shore reinsurer in the amount of C$15M and provided legal advice to several foreign reinsurers on their environmental exposure under Canadian CGL policies. A Group member is currently lead counsel in several multi-jurisdictional reinsurance disputes involving claims in excess of C$40M.

Class Action Defence

Our national presence allows us to respond wherever a class action is launched and to mount a comprehensive defence in each jurisdiction. Our class action litigators have argued some of the leading cases in this still-developing area of law, and our wide range of experience includes successfully resisting certification of class actions and negotiating and implementing complex and creative settlements to class actions.

 

Regulatory Advice and Compliance Matters

We regularly provide insurance sector clients and their other advisors with specific and general regulatory advice and assist in compliance matters. We have significant experience with the regulatory framework governing the insurance sector at both the federal and provincial levels and have excellent contacts and working relationships with federal and provincial regulators. Particular areas of expertise include corporate governance, related-party transactions and regulatory capital matters.

Our Clients

Our clients include major Canadian and international insurers and reinsurers, underwriters at Lloyd's, insurance brokers and agents, industry associations and investment banks, including:

  • ACE Group
  • Arch Group
  • Aviva Group
  • Catlin Group Limited
  • Chartis Insurance
  • Chubb Insurance Company
  • CIBC World Markets
  • The Corporation of Lloyd's
  • Great-West Life Assurance Company
  • Hiscox Insurance Company Ltd.
  • Insurance Bureau of Canada
  • Intact Insurance Company of Canada
  • Liberty Mutual Insurance Company
  • Lloyd's of London
  • QBE
  • State Farm Insurance
  • Travelers Syndicate

Helping Clients Avoid Unnecessary Litigation

Recognizing that most clients wish to avoid litigation, the Insurance Litigation Group regularly advises on the appropriateness of alternative dispute resolution and on the different forms of ADR that should be considered. Members of the Group can also advise clients on how to arrange their affairs to avoid litigation, before problems arise.

Involvement in the Legal Community

The Insurance Litigation Group is a committed participant in Canadian legal education. Members of the Group teach advocacy at the Queen's, McGill and Montréal University Law Schools as well as the École du Barreau du Québec. They have also served on several Canadian Bar Association provincial continuing legal education committees and as directors of The Advocates' Society. Members have published articles on a variety of litigation and advocacy topics and have presented papers and spoken at national and international conferences.

Unsurpassed Service: On Budget, On Time

Stikeman Elliott's goal is to provide the best client service at a fair price, while observing the highest professional standards. The firm organizes teams that can work productively and efficiently, while maintaining continuity of advice and adhering to the client's budget and time requirements. Insurance litigation clients benefit from the intellectual and technical resources of one of Canada's largest business law practices, including specialized litigation law clerks who can quickly organize relevant client documentation using Stikeman Elliott's customized document management software.



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Contacts
Key Contacts

Montréal:
Peter J. Cullen
Laurent Fortier

Toronto:
Alan L.W. D'Silva
Eliot N. Kolers

Calgary:
Michael Mestinsek
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