MOCK COMMERCIAL EXAM. Brian J. Scherman Balfour Moss Barristers & Solicitors #850, nd Street East Saskatoon, Saskatchewan S7K 5T6

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1 ) MOCK COMMERCIAL EXAM Brian J. Scherman Balfour Moss Barristers & Solicitors #850, nd Street East Saskatoon, Saskatchewan S7K 5T6 Neil B. Fisher Cuelenaere, Kendall, Fisher, Gaucher, Duncan Barristers & Solicitors # Fourth Avenue South Saskatoon, Saskatchewan S7K 1M8

2 ) Q.B. NO. XYZ OF A.D IN THE COURT OFQUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF MOOSE JAW CANADA PROVINCE OF SASKATCHEWAN BETWEEN: AND: AAA CUSTOM CABINETS LTD., NO MANAGEMENT LTD. and RALPH'S BANK OF CANADA PLAINTIFFS NEVER PAY INSURANCE COMPANY OF CANADA, BAD FAITH GENERAL INSURANCE and REGAL INSURANCE COMPANY LTD. DEFENDANTS PLEADINGS AFfERNOON DEMONSTRATION

3 Q.B. NO. XYZ OF A.D IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF MOOSE JAW CANADA PROVINCE OF SASKATCHEWAN BETWEEN: AAA CUSTOM CABINETS LTD., NO MANAGEMENT LTD. and RALPH'S BANK OF CANADA AND: PLAINTIFFS THE NEVER PAY INSURANCE COMPANY OF CANADA, BAD FAITH GENERAL INSURANCE and REGAL INSURANCE COMPANY LTD. DEFENDANTS STATEMENT OF CLAIM SUBLIME AND RIDICULOUS Barristers and Solicitors 692 River Street Moose Jaw, Saskatchewan SSS 111

4 -2- Q.B. NO. XYZ OF A.D IN THE COURT OFQUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF MOOSE JAW CANADA PROVINCE OF SASKATCHEWAN BETWEEN: AAA CUSTOM CABINETS LTD., NO MANAGEMENT LTD. and RALPH'S BANK. OF CANADA PLAINTIFF AND: THE NEVER PAY INSURANCE COMPANY OF CANADA, BAD FAITH GENERAL INSURANCE and REGAL INSURANCE COMPANY LTD. DEFENDANTS NOTICE TO DEFENDANT 1. The Plaintiff may enter judgment in accordance with this Statement of Claim of such judgment as may be granted pursuant to the Rules of Court unless: within 20 days if you were served in Saskatchewan within 30 days if you were served elsewhere in Canada in the United States of America within 40 days if you were served outside Canada and the United States of America (excluding the day of service) you serve a Statement of Defence on the Plaintiff and file a copy thereof in the office of the Local Registrar of the Court for the judicial centre above named. 2. In many cases a Defendant may have the trial of the action held at a judicial centre other than the one at which the Statement of Claim is issued. Every Defendant should consult his lawyer as to his rights. 3. This Statement of Claim is issued at the above named Judicial Centre the 30th day of November, 1992.). oj ~::L~7v~

5 - 3- CLAIM 1. The Plaintiff, AAA CUSTOM CABINETS LTD., is a body corporate with head office at the City of Moose Jaw, in the Province of Saskatchewan, carrying on business in the Province of Saskatchewan (hereinafter referred to as "AAA Custom Cabinets"). 2. The Plaintiff, NO MANAGEMENT LTD., is a body corporate with head office at the City of Moose Jaw in the Province of Saskatchewan and carrying on business in the Province of Saskatchewan (hereinafter referred to as "No Management"). 3. The Plaintiff, RALPH'S BANK OF CANADA, is a body corporate with offices at the City of Regina, in the Province of Saskatchewan and carrying on business in the Province of Saskatchewan (hereinafter referred to as "Ralph's Bank"). 4. TheDefendant, NEVER PAY INSURANCE COMPANY OF CANADA, is a body corporate carrying on business as an insurer in the Province of Saskatchewan whose registered office is located in Toronto, in the Province of Ontario and whose Power of Attorney in the Province of Saskatchewan is Synthia Edward whose address is 2672 Saskatchewan Drive, Regina, Saskatchewan. 5. The Defendant, BAD FAITH GENERAL INSURANCE, is an insurer in the Province of Saskatchewan with offices at Moose

6 -4- Jaw, Saskatchewan whose registered office is 116 Central Avenue, Moose Jaw, Saskatchewan. ) 6. The Defendant, REGAL INSURANCE COMPANY LTD., is a body corporate carrying on business as an insurer in the Province of Saskatchewan whose registered office is located in Winnipeg, Manitoba and whose Power of Attorney in the Province of Saskatchewan is Theodore Reid whose address is # White Avenue, Regina, Saskatchewan. 7. XYZ Receivers Inc. was appointed receiver and manager for AAA CUSTOM CABINETS LTD. and NO MANAGEMENT LTD. by RALPH'S BANK June 15, 1992 by instrument in writing. 8. At all material times the Plaintiff, AAA CUSTOM CABINETS LTD. carried on business as a manufacturer of custom cabinets, store fixtures and counter tops in a building located at 524 High Street, Moose Jaw, Saskatchewan and the Plaintiff, NO MANAGEMENT LTD., owned the said building as well as certain property used by AAA CUSTOM CABINETS in the operation ofits business. 9. On or about the 6th day of December, 1991 the said building, stock and equipment used by AAA CUSTOM CABINETS in the operation of its business was damaged and/or destroyed by fife. The Plaintiffs, AAA CUSTOM CABINETS and NO )

7 -5- ) MANAGEMENT, were named insurers under a policy ofinsurance, No. S492OO42 in effect for the period November 2, 1991 to November 2, By the terms of such policy of insurance the Defendants, NEVER PAY INSURANCE COMPANY OF CANADA, BAD FAITH GENERAL INSURANCE and REGAL INSURANCE COMPANY LTD. did insure the equipment and property of AAA CUSTOM CABINETS and NO MANAGEMENT for certain perils including, inter alia, damage or loss by fife. Specifically, the property located at 524 High Street, Moose Jaw, Saskatchewan and the equipment located on the said premises were included in the declarations contained in the said policy of insurance designating those assets covered by the said policy of Insurance. 10. The Plaintiff, RALPH'S BANK, is a creditor of the Plaintiffs, AAA CUSTOM CABINETS and NO MANAGEMENT, and is an assignee under an assignment of insurance proceeds executed by the said Plaintiffs and dated May 19, 1990 and is designated in the said policy of insurance as being a party to whom proceeds are payable in the event of a loss covered by the policy during the currency of the said policy. The said Plaintiff, RALPH'S BANK, claims entitlement to bring action as a "loss payable" pursuant to the terms of the said insurance policy and the provisions of The Insurance Act of Saskatchewan, R.S.S Chap. S-26.

8 The Plaintiffs, CUSTOM CABINETS and NO MANAGEMENT, reported the aforesaid loss through their agent to the agent of the Defendants and completed and fued with the agent of the Defendants on September 23, 1992 a detailed proof of loss in writing with respect to the equipment loss and with respect to the damages to the building and premises hereinbefore described. 12. The Plaintiff, RALPH'S BANK, advanced a claim under the said policy of insurance as against the Defendants by reporting the loss through its agent to the agent of the Defendants and did on or about the 29th day of September, 1992 fue with the agent of the Defendants a completed fife proof of loss claim form for both equipment loss and loss to the building and premises. 13. The Plaintiffs claim equipment loss totaling $800, and loss to the building and premises totalling $1,500,000.00, particulars of which losses are set out in the proof of claim forms filed with the agent ofthe Defendants as aforesaid. 14. The Plaintiffs, AAA CUSTOM CABINETS and NO MANAGEMENT, say that by letter dated the 18th day of October, 1992 the Defendants, through their agents, returned their original fife proof of loss claim forms and denied that loss was in fact suffered and that monies were payable under the

9 -7- said policy of insurance. 15. The Plaintiff, RALPH'S BANK, says that by letter dated the 18th day of October, 1992 the Defendant by its agent returned its original fife proof of loss claim form and similarly denied that loss was in fact suffered and that any monies were payable pursuant to the said policy ofinsurance. 16. The Defendants have refused or neglected to pay any amounts claimed pursuant to the said policy ofinsurance. 17. The Plaintiffs claim that in refusing to pay any or all sums set forth in the proof of claim forms the Defendants have breached their contracts of insurance with the Plaintiffs and the Plaintiffs have suffered and continue to suffer loss and damage thereby. 18. The Plaintiffs rely upon Section 47(3) of The Queen's Bench Act R.S.S Chap. 2-1 and claim interest on the amounts claimed at prevailing commercial lending rates from the respective dates of filing the said proof of loss claim forms to date of payment or Judgment. ~ \ 19. In the alternative the Plaintiffs claim interest on the amounts pursuant to The Prejudgment Interest Act, R.S.S. 1978

10 -8- Chap. P-22.2 from the date ofloss until payment or Judgment. ) 20. The Plaintiffs, AAA CUSTOM CABINETS LTD. and NO MANAGEMENT LTD., state that the Defendants have unduly delayed quantifying their said claim and assessing the damage specified in the Proofs of Claim Forms filed with the Defendants, thereby causing further damage to the said Plaintiffs for which they seek punative and/or exemplary damages. 21. The Plaintiffs, AAA CUSTOM CABINETS LTD., NO MANAGEMENT LTD. and RALPH'S BANK OF CANADA, therefore claim against the Defendants, NEVER PAY INSURANCE COMPANY OF CANADA, BAD FAITH GENERAL INSURANCE and REGAL INSURANCE COMPANY LTD., jointly and severally: 1. A declaration that the insurance policy No. S492OO42 is a valid and subsisting policy of insurance and the loss suffered by the Plaintiffs was an insured peril pursuant to the said policy ofinsurance; 2. Damages in the sum of $800, in respect of loss of equipment together with interest at prevailing commercial lending rates as described in paragraph 18 hereof or in the alternative interest pursuant to The Prejudgment Interest Act. 3. Damages in the sum of $1,500, together with

11 -9- interest at the prevailing commercial lending rate as set forth in paragraph 18 or in the alternative interestpursuant to The Prejudgment Interest Act. 4. Punative and/or exemplary damages in an amount to be determined at trial. 5. The costs of this action. 6. Such further and other reliefas this Honourable Court may allow. DATED at the City of Moose Jaw, in the Province of Saskatchewan, this 30th day ofnovember, A.D SUBLIME AND RIDICULOUS Solicitor for the Plaintiff, ALBERT A. SUBLIME» \

12 This document was delivered by: SUBLIME AND RIDICULOUS 692 River Street Moose Jaw, Saskatchewan SSS Whose Address For Service is: same as above Lawyer in Charge of fue: ALBERT A. SUBLIME Telephone: (306) 653-LAWS

13 Q.B. NO. XYZ OF A.D IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF MOOSE JAW CANADA PROVINCE OF SASKATCHEWAN BETWEEN: AAA CUSTOM CABINETS LTD., NO MANAGEMENT LTD. and RALPH'S BANK OF CANADA AND: PLAINTIFFS NEVER PAY INSURANCE COMPANY OF CANADA, BAD FAITH GENERAL INSURANCE and REGAL INSURANCE COMPANY LTD. DEFENDANTS DEFENCE 1. TheDefendants, NEVER PAY INSURANCE COMPANY OF CANADA (herein "Never Pay"), BAD FAITH G~NERAL INSURANCE (herein "Bad jl FaithIt) and REGAL INSURANCE COMPANY LTD. (herein "Regal") admit the following paragraphs of the Statement of Claim: 1, 2, 3, 4, 5 and 6. \ ~..=i_..._.._.\... --\\ j) \ Herein NEVER PAY, BAD FAITH and REGAL will be collectively referred to as "the Defendant Insurers". 2. The Defendant Insurers admit that AAA CUSTOM CABINETS LTD. and NO MANAGEMENT LTD. (herein "AAA Custom Cabinets" and "No

14 -2- Management") were Insureds under a policy of insurance S as at December 6, ) 3. In reply to the claim made by RALPH'S BANK, the creditor of AAA CUSTOM CABINETS and NO MANAGEMENT the DefendantInsurers say that its claim is limited to the amount of the indebtedness of NO MANAGEMENT at the date of loss and no more. 4. The Defendant Insurers deny the claim brought by AAA CUSTOM CABINETS and NO MANAGEMENT because they did not make full and complete disclosure and communicate material changes in the risk to the Insurers after the date of the policy and at the inception of it. 5. The Defendant Insurers deny the entitlement of the Plaintiffs to punitive or exemplary damages. 6. The Defendant Insurers deny that the Plaintiffs AAA CUSTOM CABINETS and NO MANAGEMENT suffered loss or damage and put the said Plaintiffs to the strict proof thereof. 7. NEVER PAY INSURANCE, BAD FAITH GENERAL INSURANCE and REGAL INSURANCE COMPANY LTD. therefore claim as against the Plaintiffs, AAA CUSTOM CABINETS LTD. NO MANAGEMENT LTD. and RALPH'S BANK: (a) That this claim be dismissed with costs; )

15 \ j (b) -3- The costs ofand incidental to this action. DATED at the City of Moose Jaw, Saskatchewan, this 20th day of December, A.D RIGID, INFLEXffiLE & COMPANY '. Per: Solicitor or the Defendants Never Pay Insurance Company of Canada, Bad Faith General Insuranpe, Regal Insurance Company Ltd.. This document was delivered by: RIGID, INFLEXmLE & COMPANY Barristers and Solicitors 1111 Milky Way Moose Jaw, Saskatchewan SKK. 228 Whose Address For Service is: same as above Lawyer in Charge offile: ROGER RIGID Telephone: (306)

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