Martin Forget's Cases

Martin has been counsel for insurers on a number of successful trials involving both property and liability matters. Most recently, in Darch v. Farmers’ Mutual Insurance Company [2011] O.J. 2971 (S.C.J.), he successfully defended an insurer relying on the Intentional Act Exclusion of the policy. Although the insured had been declared not criminally responsible for arson in light of mental disorder the Court accepted the insurer’s argument as the insured intended to set the fire the exclusion applied regardless of his mental disorder.

In Cirillo v. Wawanesa Mutual Insurance, [2009] O.J. No. 4377 (S.C.J.), where he successfully defended an insurer on a first party building loss claim involving the interpretation of the Replacement Cost coverage and the Guaranteed Replacement Cost Endorsement of a homeowners’ policy, costs of the action were awarded and recovered: Cirillo v. Wawanesa Mutual Insurance [2009] O.J. 5387 (S.C.J.).

Martin was counsel in Laudon v. Roberts, a jury trial that lasted several weeks and involved several contested evidentiary issues: Laudon v. Roberts,[2007] O.J. No 1702 (S.C.J.) and Laudon v. Roberts,[2007] O.J. No. 1703 (S.C.J.).

He was also appellate counsel at the appeal to the Ontario Court of Appeal seeking to have the judgment set aside. The Court of Appeal allowed the appeal clarifying the law that any amount the plaintiff receives from a joint tortfeasor shall be deducted from a damages award before judgment is entered against the second tortfeasor. As the jury’s award was less than the plaintiff had received from the co-defendant, for the first time in Canada, after deducting the amounts received, an action against a liable tortfeasor was dismissed with costs: Laudon v. Roberts [2009] O.J. No. 1824 (C.A.). Laudon v. Roberts has since been described as the leading authority on the issue of double-recovery in the context of partial settlement agreements, such as Mary Carter and Perringer Agreements.

In Pennefather v. Pike Estate, [2004] O.J. No. 271 (S.C.J.), Bois v. Ron's Burner Services Ltd.[2004] O.J. No. 5788 (S.C.J.) and CEJ Poultry Inc. v. Calderone, [2009] (S.C.J.), Martin successfully prosecuted subrogated negligence actions arising from fire losses. In Luco v. Beveridge, [2001] O.J. No. 1546 (S.C.J.), he successfully prosecuted a subrogated professional negligence claim arising from the loss of computer data. He has also successfully moved for summary judgment, securing the dismissal of both property damage and bodily injury claims.

In Mark v. Banghari [2010] No. 3014 (S.C.J.), he successfully moved for summary judgment, securing a dismissal of the action against a homeowners’ arising from an incident on a municipal side walk. In Mohamed v. Banville [2009] O.J. No. 712 (S.C.J), his motion for summary was granted, dismissing a subrogated property damage claim arising out of a fire loss. In Hiebert v. Lennox Canada, [2007] O.J. No. 3079 (S.C.J.), his motion for summary judgment was granted, dismissing a property damage claim arising out of an oil spill. In Keeble v. Couperthwaite, [2005] O.J. No. 6099 (S.C.J.) and Browne v. Richmond Hill (Town) [2007] O.J. No. 3233 (C.A.), his motions for summary judgment were granted, dismissing personal injury claims arising out of motor vehicle accidents.

Somewhat novel in Ontario, he moved to have a liability insurer added as an interested party to an action against its insured to whom the insurer had denied coverage: Boyd v. Cooper, [2005] O.J. No. 1415 (Div. Ct.). Once the insurer was added as a party, he brought an application to the Workplace Safety and Insurance Tribunal and, after a three-day hearing, the Tribunal granted the insurer’s application and dismissed the entire action: Boyd v. Cooper, [2009] O.N.W.S.I.A.T. No. 266. Although the addition of the insurer to an existing and its subsequent application to have the action dismissed were unusual, the Court held the insurer acted properly in protecting its interests: Boyd v. Cooper [2011] No. 1893 (S.C.J.).

Martin successfully defended a first party property claim on the basis of fraud in Tilker v. Canada Life Casualty Insurance Co. [2002] O.J. No. 2309 (S.C.J.) and a property damage claim on the basis of a statutory bar in Goodliff v. Woodcock [2004] O.J. No. 4701 (S.C.J.).

Martin has successfully defended several occupiers’ liability claims at trial such as in Oudeerkirk v. Clarry [2010] O.J. No. 2223 (C.A.), Quibell v. 1096555 Ontario Inc. (c.o.b. Bingo Bingo) [2003] O.J. No. 4673 (S.C.J) and D'Amico v. Galati Supermarkets (Finch) Limited [2002] O.J. No. 4465 (S.C.J.).

He has also successfully moved to defend a motion to add insurers to existing action on the basis that the limitation period to commence the action had expired: Blinn v. Burlington (City) [2010] No. 3063 (S.C.J.) and Wilkinson v. Brathwaite [2011] No 17 (S.C.J.).

More recently, he was counsel in five-week trial, defending an occupier. It ended in a mistrial caused by opposing counsel’s inappropriate conduct at trial: Carleton v Beaverton Hotel [2010] O.J. No. 520 (S.C.J.).  His client was awarded costs thrown away of $300,000. After the plaintiffs failed to obtain leave to bring a motion for summary judgment, reported at Carleton v Beaverton Hotel [2010] O.J. No. 4769 (S.C.J.), Martin secured a dismissal of the action and recovered a substantial amount of the costs awarded.

Martin successfully defended a plaintiff’s motion to strike an insured’s defence on the basis of fraud in Tupper v. Van Rooy[2007] O.J. No. 315 (S.C.J.) and secured a substantial cost order as a result: Tupper v. Van Rooy [2007] O.J. No. 610 (S.C.J.).

He also successfully moved for security for costs on a first party property claim in Enescu v. Wawanesa Mutual Insurance Co. [2005] O.J. No. 3058 (S.C.J.) aff’d [2005] O.J. No. 4836 (Div. Ct.), and had a plaintiff’s loss of income claim struck for repeated failures to comply with court orders in Cossette v. Gojit (Brampton) Inc. [2005] O.J. No. 3513 (S.C.J.). 

In Kawartha Lakes (City) v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 59, an appeal before the Ontario Environment Review Tribunal, Martin represented a homeowner from whom a municipality was seeking to recover the cost of remediating an oil spill. Martin successfully moved to have the scope of the proceedings restricted on jurisdictional grounds, which compelled the Tribunal to reconsider and amend what was considered well-settled law in the area of environmental protection.

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