Miller Thomson LLP Successful in Defence of Large Municipal Claim on behalf of Lloyd’s Underwriters

January 24, 2019 | Mark R. Frederick

The Ontario Superior Court has dismissed a $25 Million (CAD) lawsuit brought by a failed construction-development tender candidate against the City of Brampton.

After a significant cost award had been made against the City as a result of failed motion for judgment brought by counsel appointed by the primary domestic insurance exchange, Miller Thomson LLP, who had been monitoring the case on behalf of Lloyd’s through practice leader Mark Frederick, thereafter successfully negotiated assumption of the case on behalf of re-insurers Lloyd’s Underwriters and other domestic companies who faced the ongoing insurance exposure.

Miller Thomson counsel Adam Stephens and Dan Rabinowitz aided by Kate Genest as junior counsel, thereafter took on the matter as trial counsel  5 months prior to trial and used that time to effectively re-position the case and develop strategy and presentation of evidence that were successfully put to the Court over the course of a 2 month-long trial involving dozens of witnesses and experts and thousands of documents.

The alleged negative demeanour of City staff and politicians towards the Plaintiff had resulted in the matter being a constant source of unfavourable comment from the Court before trial and negative press for the City which Miller Thomson was also called to deal with through development of press strategies and efforts to rehabilitate those witnesses.

The Plaintiff’s demand in its pleading exceeded $20Million CAD plus costs and interest and punitive damages.

Ultimately, the Court concluded that the tender process of which the Plaintiff had been disqualified was a fair process and that the Plaintiff had, through non-compliance with its terms, disqualified itself.  Even if the Plaintiff had been improperly disqualified, the Court accepted defence arguments and concluded damages could only be a nominal amount given the terms of the process, which did not create a contractual relationship sufficient to establish a loss of opportunity claim.

In dismissing the Plaintiff’s claim, the Court accepted all of Miller Thomson’s arguments and dismissed the action with costs.

Having the bench strength with the legal expertise to take significant matters to trial and the ability to reclaim distressed cases and turn them to the advantage of underwriters and insureds is a key offering of Miller Thomson’s insurance defence practice.  This case exhibited a difficult and challenging fact and damages scenario and resulted in the establishment of new legal principles concerning a tender process which had never been previously used in Canada.    Despite the many challenges faced,  Miller Thomson was able to turn a negative environment into a positive environment on all fronts.

The case also demonstrated the dedication and teamwork of Lloyd’s Underwriters claims teams at MS Amlin, Newline and Starr syndicates, who contributed significant input into the defence strategy and direction and who deserve every credit to the success of the defence.

Read the judgment.

For more information or enquiry, please contact Mark Frederick by email or at 001-416-595-8175.


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