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Mary Carter Agreements: Ontario’s Ongoing Fight Over Disclosure Obligations

George A. Bougadis of Bougadis, Chang LLP Barristers, recently argued and was successfully granted Leave to Appeal to the Divisional Court of the Ontario Superior Court of Justice by Justice Di Tomaso in: Stamatopoulos v. Harris, 2013 ONSC 7844 (CanLII). Justice Di Tomaso also applied and adopted the recent reserve Supreme Court of Canada Judgment (re: PerringerAgreements) in Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 (CanLII)that was available to Justice Brown during her deliberations and reserve Judgment, but which is not mentioned in her decision denying our client’s appeal of the Order of Master Dash requiring our client to disclose our client’s partially redacted $2.4M Mary Carter Agreement to the non-subscribing Defendant prior to Trial.

This significant $2.4M Mary Carter Agreement appellate decision involves the issue of whether or not the Court can, or should, Order that the partially redacted Mary Carter Agreement be produced to the non-subscribing Defendants prior to Trial.

The appeal will be argued later this year.

The success of this Appeal at the Divisional Court and, if necessary, with leave, at the Court of Appeal for Ontario, is significant to the Plaintiff Bar as if affects the Pre-Trial and Trial civil procedure and practice governing Mary Carter and Mary Carter-like Agreements and Partial Judgments.

The Plaintiffs and Moving Parties object to the recent line of authorities adopted and advanced by Toronto Masters McLeod and Dash and then upheld by Justices Perell and Brown in the:Moore v. Bertuzzi, 2012 ONSC 3248 (CanLII) and Noonan v. Alpha-Vico, 2010 ONSC 2720 (CanLII) decisions which, in our view, reverse over twenty (20) years of Ontario jurisprudence since the root Trial decision in Pettey v. Avis Car Inc., 1993 CanLII 8669 (ON SC) and the subsequent CAO appellate rulings in: Laudon v. Roberts, 2009 ONCA 383 (CanLII) and Aecon Buildings v. Brampton (City), 2010 ONCA 898 (CanLII), respectively.

Joga Chahal

Toronto Personal Injury and Insurance Lawyer