Moore v. Canadian Lawyers Insurance Association, (1992) 115 N.S.R.(2d) 345 (TD)

• Judge: Goodfellow, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 24, 1992
• Jurisdiction: Nova Scotia
• Citations: (1992), 115 N.S.R.(2d) 345 (TD)

Moore v. Cdn. Lawyers Ins. (1992), 115 N.S.R.(2d) 345 (TD);

  314 A.P.R. 345

MLB headnote and full text

Michael C. Moore (plaintiff) v. Canadian Lawyers Insurance Association (defendant) and Central Guaranty Trust Company (intervenor)

Indexed As: Moore v. Canadian Lawyers Insurance Association

Nova Scotia Supreme Court

Trial Division

Goodfellow, J.

September 10, 1992.

Summary:

A lawyer claimed under a professional liability insurance policy for negligently preparing a collateral mortgage for a client. The insurer denied liability on the ground of breach of the condition to give timely notice.

The Nova Scotia Supreme Court, Trial Division, allowed the lawyer's claim.

Insurance - Topic 3110

Payment of insurance proceeds - Actions - Conditions precedent - Notice of claim - A lawyer negligently prepared a col­lateral mortgage - He spent over a year arranging to rectify the error - His client was his partner and seemed financially stable - After his partner refused to sign docu­ments required for rectification, the lawyer notified his insurer of the error under a professional liability policy pro­viding for notice as soon as practi­cable after learning of a claim or circum­stances likely to give rise to a claim - The Nova Scotia Supreme Court, Trial Division, applied the test of when a reasonably prudent solicitor would have concluded that a claim was likely and held that the notice was timely - See para­graphs 10 to 39.

Insurance - Topic 3138

Payment of insurance proceeds - Actions - Relief against forfeiture - Imperfect compliance with statutory conditions - General - The Nova Scotia Supreme Court, Trial Division, stated that upon an application for relief against forfeiture, the onus is on the insured to establish that there has not been any prejudice or poten­tial prejudice to the insurer, in addition to showing that he acted in good faith - The court opined that the onus could be dis­charged by successfully rebutting any evidence of prejudice or reasonably fore­seeable potential for prejudice adduced by the insurer - See paragraph 42.

Cases Noticed:

Marcoux v. Halifax Fire Insurance Co., [1948] 4 D.L.R. 193 (S.C.C.), refd to. [para. 19].

Glenburn Dairy Ltd. v. Canadian General Insurance Co., [1953] 4 D.L.R. 33 (B.C.C.A.), refd to. [para. 23].

Canadian Equipment Sales and Service Co. Ltd. v. Continental Insurance Co. (1975), 59 D.L.R.(3d) 333 (Ont. C.A.), refd to. [para. 24].

W. Schoeler Trucking Ltd. v. Markel Insurance Co. of Canada, [1980] I.L.R. 1-1210; 19 A.R. 196 (Dist. Ct.), refd to. [para. 26].

Agassiz Enterprises (1980) Ltd. et al. v. General Accident Assurance Co. of Canada Ltd. (1988), 51 Man.R.(2d) 267; 49 D.L.R.(4th) 415, refd to. [para. 27].

National Gypsum (Canada) Ltd. v. Acadia Insurance Co., [1959] I.L.R. 1-335 (N.S.T.D.), refd to. [para. 28].

Cunningham et al. v. Western Union In­surance Co., [1980] I.L.R. 1-1214; 26 A.R. 361, refd to. [para. 29].

Royal Trust Corp. of Canada et al. v. American Home Assurance Co. (1992), 112 N.S.R.(2d) 156; 307 A.P.R. 156, refd to. [para. 30].

McNish v. American Home Assurance Co. et al., [1989] I.L.R. 1-2434 (Ont. S.C), refd to. [para. 32].

Statutes Noticed:

Insurance Act, R.S.N.S. 1989, c. 231, sect. 33 [para. 41].

Authors and Works Noticed:

Black's Law Dictionary (7th Ed.) [para. 36].

Concise Oxford Dictionary (4th Ed.) [para. 36].

Counsel:

Dale Dunlop, for the plaintiff;

Colin D. Bryson, for the defendant;

Philip Chapman, for the intervenor.

This case was heard on August 24, 1992, at Halifax, Nova Scotia, before Goodfellow, J., of the Nova Scotia Supreme Court, Trial Division, who delivered judgment orally on September 3, 1992, and released the follow­ing written reasons on September 10, 1992.