36 | Big Suits
Swan, Richard B.
Bennett Jones LLP
(416) 777-7479
swanr@
bennettjones.com
Mr. Swan is co-Chair
of Bennett Jones's
Commercial Litigation
practice group. He
focuses on corporate,
commercial and
insolvency litigation,
including shareholder,
oppression, contract,
injunction, arbitration
and estate disputes.
Thomson, Mary M.
Gowling Lafl eur
Henderson LLP
(416) 862-4644
mary.thomson@
gowlings.com
Ms. Thomson's practice
focuses on products
liability class actions and
mass torts, as well as on
health law, the law of
consent and privacy law.
She appears regularly
before the courts and
professional regulatory
tribunals.
Tory, James C.
Torys LLP
(416) 865-7391
jctory@torys.com
Practises business
litigation with a particular
focus on corporate and
securities litigation. Has
substantial experience
in all levels of court in
Ontario, in the Ontario
Securities Commission,
and in commercial
arbitrations and
mediations.
Thomson, Kent E.
Davies Ward Phillips
& Vineberg LLP
(416) 863-5566
kentthomson@dwpv.com
Mr. Thomson is
recognized as one
of Canada's leading
litigation counsel, acting
in precedent-setting
cases. He specializes in
complex high-stakes
commercial litigation and
arbitration. He is a Fellow
of the American College
of Trial Lawyers.
Torralbo, Robert J.
Blake, Cassels &
Graydon LLP
(514) 982-4014
robert.torralbo@
blakes.com
Mr. Torralbo's corporate
commercial litigation
and arbitration practice
emphasizes the defence
of class actions, product
liability, securities,
banking, real estate and
shareholder disputes.
His clients include
fi nancial institutions and
multinationals.
Tupper, David
Blake, Cassels &
Graydon LLP
(403) 260-9722
david.tupper@blakes.com
Mr. Tupper's practice
focuses on high-value
complex cases that
include securities,
construction, insurance,
environmental, and oil
and gas law. He appears
before all Alberta courts,
the Federal Court, the
Federal Court of Appeal
and the ASC.
LEXPERT®Ranked Lawyers
constituted excluded wilful misconduct.
e appellant argued that the fault standard under the in-
surance exclusion and the Convention were the same, there-
fore the exclusion should only apply if the insured either in-
tended to cause the specifi c loss, or acted recklessly and with
knowledge that such loss would probably occur. Since Mr.
Vallée had not intended to cut a live cable, appellants submit-
ted that the lower Court rulings should be overturned.
e respondent insurer disagreed, and argued that a dif-
ferent standard should apply because the purpose of the
insurance coverage – risk allocation – was fundamentally
diff erent from that of the Convention. Consequently, while
there was an absence of Supreme Court of Canada case-law
interpreting "wilful misconduct" in the context of a marine
insurance exclusion, the insurer submitted that the Court
should follow Supreme Court of Canada rulings interpret-
ing similar language in analogous contexts, as well as UK
marine insurance case-law, each of which hold that wilful
misconduct includes not only intentional wrongdoing but
also other misconduct committed with reckless indiff erence
in the face of a duty to know.
e Court agreed with the insurer, holding that "[w]
hile the threshold to break liability under the Convention
requires intention or recklessness with knowledge that the
loss will probably occur, wilful misconduct under the Ma-
rine Insurance Act does not require either intention to cause
the loss or subjective knowledge that the loss will probably
occur. It requires, in the context of this case, simply miscon-
duct with reckless indiff erence to the known risk despite a
duty to know."
e Court thus concluded that the insured's subjective be-
lief that the cable was abandoned was "beside the point." e
wilful misconduct exclusion precluded coverage for the loss
because Mr. Vallée had acted with reckless indiff erence to the
possible consequences of his actions despite having actual
knowledge of the risk that he could be cutting a "live" cable.
Peracomo is an important ruling that both establishes the
virtual unbreakability of the Convention's limit of liability,
and provides clear guidance on the scope and application of
the "wilful misconduct" exclusion.
e appellants were represented by Nicholas Spillane and
Victoria Leonidova of Brisset Bishop.
e respondents, Telus Communications Company,
Hydro Québec and Bell Canada, were represented by Lan-
glois Kronström Desjardins LLP with a team of Michel
Jolin, John O'Connor and Jean Grégoire.
e respondent, Royal & Sun Alliance Insurance Com-
pany of Canada, the appellants' liability insurer, was repre-
sented by Jean-François Bilodeau and Nicholas Krnjevic of
Robinson Sheppard Shapiro LLP.
UNION CARBIDE V. BOMBARDIER INC.
DECISION DATE: MAY 8, 2014
e Supreme Court of Canada (SCC) (2014 SCC 35) con-
sidered the interaction between the common law privilege
that protects settlement discussions and private agreements
that provide for confi dentiality of the mediation process. Spe-
cifi cally, the SCC considered whether a mediation agreement
stipulating the confi dentiality of anything said or written dur-
ing a mediation displaces the recognized exception to the priv-
ilege that allows parties to prove that a settlement occurred.
e SCC decided that a confi dentiality clause in a media-
tion contract will not deprive parties of their ability to prove
the terms of a settlement unless a court fi nds that it was the
