Insurance Bi-partisanship

The Ontario Bar Association (OBA)’s 2010 OBA Insurance Law Award of Excellence is recognizing insurance counsel that have practised on both the plaintiff and defence sides of the bar throughout their distinguished careers — Thomas McGrenere of Toronto and Kristopher Knutsen of Thunder Bay.

THOMAS McGRENERE, Q.C.

McGrenere, currently a mediator and arbitrator with ADR Chambers, retired from his former law firm of Lawson McGrenere LLP Toronto in May 2005. His 45- year career in law covered many insurance-related matters, including motor vehicle litigation, personal injury claims for insurers and for plaintiffs, fire loss claims, products liability, medical malpractice, wrongful dismissal actions, disability claims, life insurance claims, occupiers’ liability, policy coverage issues, professional liability and reinsurance.

McGrenere said he focused on personal injury law during the first 25 years of his career, whereas his focus shifted towards product liability and commercial losses during the past 15 years.

McGrenere was called to the Ontario bar in 1965. He entered law school after a somewhat last-minute decision made between his second and third year of university. “As a matter of fact, they were calling my name in third-year class for the first couple of weeks because I had decided that late,” he said.

In a conversation with a longtime friend, the late Bill Mc- Murtry, McGrenere was asked to consider articling at McMurtry’s firm at that time, Basil Sullivan Holland and Lawson. The clincher was an invitation to join the firm by the late Dick Holland, Ontario’s chief justice between 1977 and 1990.

Both Holland and the firm did a substantial amount of insurance work, and McGrenere found himself developing an interest in cases involving policy interpretation. Over the course of his career, McGrenere says he has witnessed a noticeable shift in how the courts are interpreting insurance policies, with an evolving emphasis on a “contextual reading” of insurance policy documents.

“When I started, there seemed to be a pattern where the courts really followed the letter of the contract,” he said. “With the passage of time, there became a somewhat broader interpretation.”

McGrenere said it is important for insurance defence lawyers to keep this trend in mind when advising their insurance company clients. The upshot is that you can never be too clear in writing policy exclusions.

“The courts [have said] over the last few years, if you are going to exclude something, be very specific about it,” he says. “If you’re not going to cover something, be very specific about it.”

McGrenere remembered a firsthand experience of the court’s evolving direction. He was arguing a policy interpretation issue before the late Charles Dubin, who was Ontario’s chief justice between 1990 and 1996. “On one case I was on, I remember the late Mr. Justice Dubin saying: ‘Well, Mr. McGrenere, what does this policy cover?’ It’s not a very good question to be put to you in the Court of Appeal.

“Interestingly enough, it struck me as an indication of what troubles a lot of judges. The exclusions, particularly in some of the CGLs and some of the professional policies, are voluminous.”

KRISTOPHER KNUTSEN, Q.C.

Kristopher Knutsen expressed surprise at receiving his share of the OBA’s insurance law award because, for the greater part of his career, he has been representing plaintiffs making claims against insurance companies. But it was not always thus.

Having graduated from law school in Saskatchewan, Knutsen started practicing law in 1970 in Thunder Bay, where he initially “didn’t know a soul.” He started out doing litigation work for Kringle Law and Family Law Practice. That led to the development of an offshoot civil practice, through which he ironically started receiving insurance defence work.

“I happened at one point to have Prudential on the other side of the file,” he recalled. “Long trial. Won it. Thereafter, bit-by-bit, piece-by-piece, Prudential work started coming to me. And eventually I got it all…Eventually it became my total practice for a good period of time.”

Knutsen is now at Carrel + Partners LLP, where he became a partner in 1975.

His work for the plaintiff’s side really took off after he spent two-and- a-half-years of his life immersed in work on the 1989 Commission of Inquiry into the Air Ontario Crash at Dryden, Ontario. Knutsen represented victims in the 1989 crash that killed 24 people when a Dutch-built Fokker F-28 lifted off from a snowy airport in Dryden. It had crashed after making a scheduled stop en route from Thunder Bay, Ontario to Winnipeg.

The inquiry found the crash was caused by ice on the wings. The commission’s 2,000-page report enumerated numerous recommended changes in air-traffic policies.

Knutsen returned back to work in Thunder Bay after the inquiry. He said that while he was away, the “insurance [defence] files couldn’t wait, but plaintiff files did wait.”

Approximately three years later, Knutsen took the Lento v. Castaldo case to trial. Lento is oneoftheMeyerv. Bright trilogy cases that tested the verbal threshold contained in Ontario’s first extensive no-fault insurance plan in 1990-93, under the Ontario Motorist Protection Plan (OMPP).

Knutsen then successfully took Derksen v. 539938 to the Supreme Court of Canada. Derksen essentially relates to the interpretation of exclusion clauses in insurance policies when the loss arises from more than one cause (i. e. when one cause falls under coverage and another falls under an exclusion clause). The Supreme Court’s decision in Derksen essentially debunked the prevailing view at the time that if a loss arose from two causes, and one of those causes was excluded, coverage for the entire loss would be excluded. Those were heady days for Knutsen, who proudly had his son watching him make his arguments at the Supreme Court of Canada.

Since then, Knutsen says, increasing costs associated with taking cases to trial have prevented both insurers and insureds from changing insurance law.

Knutsen says he “decries” a tendency today to avoid risks and settle cases through arbitration — although he stresses that he has no trouble with arbitration or settlement — essentially leaving insurance law static.

“What I am finding is, more and more, there’s less opportunity to change the law,” he says. “The law stands still if there aren’t risk takers….

“Somebody has to try cases and the law has to change.”