Failing to Submit to a Statutory Examination May Result in the Refusal of an Insurance Claim

By MichaelSchacterKaufman Laramée LLP In the world ofinsurance, complex claims are often subject to a statutory examination (interrogatoire statutaire), whereby theinsurer, through its attorney, questions the insured under oath and in thepresence of a stenographer regarding the circumstances of the claim. However, thejurisprudence is quite controversial as to whether or not an insured isobligated to submit to a statutory examination. The matter of Sauvé v. SSQ, assurances générales, 2012 QCCQ 464 cites several judgmentsarguing both sides of this issue (footnotes 30 and 31). Fortunately, the recentdecision of the Court of Appeal in IntactAssurances inc. v. 9221-2133 Québecinc. (Centre Mécatech) 2015 QCCA916 has provided some guidance. The Court ofAppeal was called upon to review the judgment of the Honourable FrançoisGodbout, J.C.Q., who maintained the plaintiff’s insurance claim notwithstandingthe fact that he failed to submit to a statutory examination. Judge Godboutfound that the plaintiff’s consent for the insurer to collect information fromthird… Lire la suite

10 Essential Changes to the Code of Civil Procedure: Part I

By Michael SchacterKaufman Laramée LLP This edition of the Young Bar Association of Montreal’s “10 jugement essentiels / 10 Essential judgments” will vary from its usual format. Given the recent adoption of a new Code of Civil Procedure for the province, we cannot miss the opportunity to analyze the changes that will, in some cases, fundamentally affect the practice of law in Quebec. This is part 1 of a series of articles that will identify and examine these changes. On February 21st, 2014, An Act to establish the new Code of Civil Procedure (hereinafter referred to as the “New Code”) received assent and opened a new era for litigators of this province. The New Code is almost entirely redrafted from scratch, consisting now of 836 articles, versus 1052 in the current Code of Civil Procedure (“C.C.P.”). The New Code is expected to come into force in the Fall of 2015… Lire la suite

Enforcement of Mandatory Mediation Clauses

By Michael Schacter Kaufman Laramée LLP The inclusion of mandatory mediation clauses has become commonplace in certain types of contracts. Consequently, the question arises as to whether a party can enforce such a clause and force its opponent into mediation, which by its very nature, is based on the consent and good will of the parties. Several judgments exist on the subject, with no definitive guiding principle. A new chapter to the debate has been added by the Honourable Justice Robert Mongeon in Ceriko Asselin Lombardi inc. v. Société immobilière du Québec (2013 QCCS 3624). In the scope of a construction contract, the parties agreed upon the following clause: “51.          NÉGOCIATION EN CAS DE DIFFÉREND Le Gestionnaire de projet et l’Entrepreneur doivent tenter de régler à l’amiable toute difficulté pouvant survenir au regard du contrat selon les étapes et les modalités suivantes : a)            en faisant appel à un cadre représentant le Gestionnaire de projet et… Lire la suite

10 Essential Judgments in Insurance Law

By Michael SchacterKaufman Laramée LLP In this month’s edition of the 10Essential Judgments, we will be looking at insurance law, particularlynon-marine insurance. This small section of our Civil Code, comprised of 116articles, is the source of one of the largest bodies of jurisprudence andoccupies countless attorneys, and even firms, throughout the province. Rather than attempt to cover sucha broad topic as a whole, we have identified 10 judgments that should be ofinterest to those who are not specialized in this field. 1.      Compagnie d’assurance Wellington v. M.E.C.Technologie inc., J.E. 99-524 (C.A.) This 1999 Court of Appealdecision, which is at the origin of the oft-used “Wellington Motion”, set aprecedent for insureds who have been refused coverage by their insurer to seekspecific enforcement of the insurer’s duty to defend. In its reasons for judgment, theCourt affirms the following 6 principles: 1)     The insurer’s obligation todefend is distinct from its obligation to indemnify; 2)     The obligation… Lire la suite