Direct Dial: 416-640-2940
E-mail: hbrown@brownandkorte.ca
Harry Brown is the founding partner of Brown & Korte. He acts as litigation and legislative counsel on behalf of automobile insurers and litigation counsel on behalf of all insurers.
As legislative counsel on behalf of automobile insurers, in January of 1988, Harry appeared before the Standing Committee on Justice on the Ontario Automobile Insurance Board Act. He attended at all hearings of the Ontario Automobile Insurance Board, from July 1988 to May 1989, including No-fault Hearings in April and May of 1989. He appeared before General Government Committee on Bill 68, in January of 1990, and the Economic and Finance Committee on Bill 164, in January of 1993, and Bill 59, in February of 1996. In August of 2003, he attended at the Financial Services Commission of Ontario to review of the draft Statutory Accident Benefits regulation for Bill 198 and appeared before select committee on auto insurance. In July of 2005, he made submissions to the Canadian Council of Insurance Regulators and the Canadian Insurance Services Regulatory Organizations regarding relationships between insurers and sales intermediaries on behalf of the Ontario Bar Association.
Harry’s defence litigation practice focuses on the areas of statutory accident benefits, including acting on behalf of auto insurers in loss transfer and priority disputes between insurers, tort, property and general liability insurance. He also provides coverage opinions. He has appeared on behalf of insurers at all levels of court, including the Superior Court of Justice, the Divisional Court, the Ontario Court of Appeal and the Supreme Court of Canada. He also has over 90 reported decisions at the Financial Services Commission, acting on the behalf of insurers with respect to statutory accident benefits.
Harry has been an instructor for the Bar admissions course (trials and appeals).
Harry is a member of the Law Society of Upper Canada, the Defence Research Institute, the Advocate Society, the Canadian Bar Association, the Metropolitan Toronto Lawyers Association, the Insurance Committee Toronto Board of Trade, and The ADR institute of Ontario.
Decisions
Harry Brown has acted as counsel in a number of important cases involving the statutory interpretation of the Insurance Act including:
Bill 164 Dineff v. Progressive Casualty Insurance Co. of America [1994] O.J. No. 2615.
The court held that insurers have the right to send all no-fault benefit cheques directly to insureds, rather than their counsel.
Bill 68 Equitable Life Insurance Co. of Canada v. Wawanesa Mutual Insurance Co. of Canada [1994] O.J. No. 1666.
Equitable Life, as a non P&C insurer took the position, under their contract, that they were not the primary insurance payer for weekly benefits under The Insurance Act. Mr. Brown acted for plaintiff on behalf of an insurer. In the follow-up case of Tasich v. Progressive, it was held that there could be no subrogation of health care or weekly benefits against no-fault insurers.
Bill 164 Prasad v. GAN Canada Insurance Co. [1997] O.J. No. 1907.
In this case, the Court of Appeal for Ontario decided that the payment of accident benefits was not limited to the North American continent but were payable in cases involving automobile accidents around the world. Leave to appeal to the Supreme Court of Canada was refused.
Bill 164 Alchimowicz v. Continental Insurance Co. of Canada [1996] O.J. No. 2989.
This was one of the leading cases dealing with the definition of injuries arising “directly or indirectly” out of the use or operation of an automobile. In Alchimowicz the plaintiff was transported, in an automobile, from a party to a beach where he exited from the vehicle and jumped into the water, became a quadriplegic. The Ontario Court of Appeal held that such an incident was not covered under the Accident Benefit portion of the automobile policy.
Bill 59 Healy v. Interboro Mutual Indemnity Insurance Co. [1998] O.J. No. 2058, upheld on appeal by the Ontario Court of Appeal [1999] O.J. No. 1667, leave to appeal to the Supreme Court of Canada refused.
The New York State insurer (Interboro) was required to pay all of the no-fault benefits pursuant to the 1964 Power of Attorney and Undertaking.
Bill 59 Liu - and - Lombard Canada (FSCO A01-001429, dated October 4, 2002, APPEAL P02-00030).
The Director of Appeals decision of the Financial Services Commission David Draper held that assaults against bus passengers were not covered under the SABS as they were not “directly” related to the use or operation of the automobile.
Current Decisions
Aviva Insurance Company - and - Lombard Insurance Company, Arbitrator Guy Jones, decision dated September 15, 2004. The claimant was catastrophically injured. This case involved a priority dispute between insurers and specifically whether or not one insurer attempted to “direct” the claim to the second insurer. Arbitrator Jones held that the second insurer did not “direct” claim to insurer who first received application for benefits. The decision has not been appealed.
Pilot Insurance Company - and - Lombard Canada, Arbitrator Stephen Malach, decision dated March 10, 2005. The claimant was catastrophically injured. The claimant was a twelve-year-old boy on bicycle who crossed the road in front of a transport truck. Insurer of transport truck ordered to pay 66% of loss transfer claims. On October 26, 2005, the Honourable Justice Eva Frank of the Divisional Court ruled that the Arbitrator Malach failed to consider an important point of law and remitted the case back to the arbitrator for a decision on split in liability in accordance with the Lombard insured having the right of way. The further arbitration held on April 21, 2007.
Smith v. Zenith Insurance Company of Canada, Justice Richard Byers, Belleville and decision dated May 30, 2005. A seriously impaired plaintiff claiming that rheumatoid arthritis was caused or contributed to by the motor vehicle accident which occurred three months earlier. Justice Byers found in favour of Zenith Insurance. Zenith successfully defended the appeal to the Ontario Court of Appeal in November 2006.
Primmum (Allstate) v. Lombard Canada and Liberty Mutual, Arbitrator Guy Jones, decision dated August 18, 2005. The claimant was catastrophically injured in a motor vehicle accident. Allstate failed to persuade arbitrator that they had properly cancelled the policy of insurance.
Wawanesa v. Lombard Canada, Arbitrator Guy Jones, decision dated August 27, 2005. Wawanesa claimed that it was entitled to loss transfer and argued that the bus, insured by Lombard, was a “heavy commercial vehicle” for the purposes of the loss transfer legislation. Arbitrator Jones held that a bus is not a commercial vehicle. The arbitration was dismissed with costs. The decision has not been appealed.
Farmers’ Mutual Insurance (Lindsay) v. ING Insurance Company of Canada, Arbitrator Guy Jones, decision dated October 17, 2005. Sixteen-year-old catastrophically injured young man passenger in father’s car which strikes illegally parked heavy commercial vehicle on roadway outside a city, town or village. Farmers’ argues that s. 17(2) of the Fault Determination Rules applies and that ING is responsible to repay 100%. Farmers’ Mutual was successful. The decision of Arbitrator Jones was appealed to the Divisional Court. Justice Perell of the Superior Court of Justice dismissed the appeal. Counsel for ING is currently seeking leave to the Court of Appeal.
Dominion of Canada v. Zurich Insurance Company and Aviva Insurance Company of Canada, Arbitrator Drew Hudson, decision April 16, 2006. The claimant was catastrophically injured in a motor vehicle accident. In this priority dispute between insurers, Dominion argued that the claimant was not dependant on his parents and that Aviva was the priority insurer. Arbitrator Hudson found that the claimant was not dependant on his parents. The case was appealed to the Divisional Court. Justice Spence upheld the arbitral decision.
TD Home and Auto Insurance Company v. Lombard Canada Inc., Arbitrator Stephen Malach, decision dated October 2006. Liberty, formerly TD, unsuccessfully argued that the time should be extended under Regulation 283/95 to give notice regarding priority in a fatality claim.
Diane Webb v. Lombard General Insurance Company of Canada (FSCO A06-001004, decision dated November 10, 2006). The arbitrator held that a claimant who had exited from a taxicab and walked behind the vehicle before falling on ice was entitled to accident benefits. The Appeal to Director’s Delegate was held April 27, 2007 and the decision is pending.
The Germania Insurance Farmers’ Mutual Fire Insurance Co. v. Federated Insurance Company of Canada, Arbitrator Stephen Malach decision dated November 15, 2006. This matter involved a loss transfer dispute between insurers. The arbitrator held that Rule 6(2) of the Fault Determination Rules did not apply since the vehicles were not travelling in the same direction. Germania was successful and Federated’s insured was found to be 2/3 liable under the ordinary rules of law. Justice Colin Campbell of the Superior Court of Justice dismissed the appeal.
ACE v. Nordique (ING) and the Motor Vehicle Accident Claims Fund, Arbitrator Bruce Robinson, decision dated February 28, 2007. The issue before arbitrator was whether ING properly cancelled the policy of insurance. ACE INA was successful. ING did not properly cancel policy. The decision has not been appealed.
Her Majesty the Queen in Right of Ontario as Represented by the Minister of Finance v. CGU Insurance Company of Canada (formerly Commercial Union Insurance Company of Canada), Arbitrator Guy Jones, decision dated August 2, 2007. Arbitrator Jones found that the policy was properly cancelled by CGU . The decision also finds that CGU has the right to rely upon the 90 day limitation defence found in Regulation 283/95.
Heather Hargraves v. Lombard General Insurance Company of Canada. This was a 2 ½ week arbitration at FSCO (Arbitrator Renahan) as to whether or not the insured meets test of catastrophic impairment. Arbitration held late March, early April 2007. Decision pending.
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