Ontario Civil

Civil Procedure


Order was granted removing counsel appointed by insurer

Father dropped off plaintiff, who was six-years-old at time. Plaintiff ran after hat into intersection and was struck by car. Jury found plaintiff’s father solely responsible for injuries plaintiff suffered in car accident. Jury awarded plaintiff damages of $835,000. Plaintiff appealed and counsel appointed by father’s insurer cross-appealed to set aside finding of liability against father. Cross-appeal sought to set aside all particulars of negligence against father and to dismiss action against him. One of particulars sought to be set aside was “unsuitable choice of unloading area” which was only particular for which father could claim coverage under his insurance policy. Plaintiff and father brought motions to disqualify counsel appointed by father’s insurer from continuing to represent father on appeal and cross-appeal asserting that continued representation gave rise to reasonable apprehension of conflict of interest between insurer and insured. Motions granted. Order was granted removing counsel appointed by father’s insurer and order was granted appointed LG as counsel of record for father on appeal and cross-appeal. Order was granted requiring father’s insurer to pay LG’s reasonable fees and disbursements. Reasonable apprehension was readily apparent. Apprehension arose because reasonable bystander might think counsel appointed by insurer would focus on overturning one finding for which insurer could be liable to indemnify insured and focus less on findings of negligent parental supervision for which insurer had no obligation to indemnify. Test was not actual conflict of interest, but reasonable apprehension of conflict of interest.

Hoang v. Vincentini (Nov. 16, 2015, Ont. C.A., John Laskin J.A., In Chambers, File No. CA M45481,M45484 (C55389)) 260 A.C.W.S. (3d) 220.

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