PUBLICATIONS

The issue of vicarious liability in contractual relationships was called into question in the British Columbia Court of Appeal when a tragic car accident required the court to consider the parties' intentions when entering the contract and the purpose of the applicable legislation. 

The 2024 Ontario Provincial Budget, titled "Building a Better Ontario" was recently released, and it proposes several changes to the automobile insurance regime, which could have profound impacts if adopted.

The first and most immediate impact would be the change of mandatory and optional benefits under an automobile insurance policy. 

As stated at the outset of this decision, "The allocation of defence costs amongst serial insurers who owe their insured a duty to defend raises complex issues in the context of consecutive coverage periods and multiple class action claims that span lengthy time frames."

This paper was originally presented at a client seminar and has been updated with new case references from an article of the same title.

The main purpose of commercial general liability insurance policies ("CGL policies") is to provide protection to an insured party against financial losses which may be incurred if the insured is sued by a third party. The relationship between an insurer and an insured party is dependent on the wording of the relevant insurance contract. Typically though, CGL policies, similar to other liability insurance policies, require an insurer to fulfill two distinct, but related duties. The first obligation is referred to as the "duty to defend". 

This past month, the Ontario Court of Appeal released its decision of Demme v. Healthcare Insurance Reciprocal of Canada (HIROC) 2022 ONCA 503, which considered a commercial liability insurer's duty to defend in actions based on the tort of intrusion upon seclusion. Justice Brown ultimately found that the insurer had a right to deny coverage to an employee of the insured under its policy.

First Published in Advocates Quarterly. This paper addresses whether the same principles regarding the “real and substantial possibility” standard of proof apply to a hypothetical past loss claim as they do to a hypothetical future loss claim, and the interplay between the two standards of proof applicable to hypothetical claims: balance of probabilities for the “but for” causation test, and “real and substantial possibility” for damages.

There have been a number of motions to strike jury notices throughout the COVID-19 pandemic, many of which resulted in jury notices being struck.

However, in the recent decision in Corkett v. Ginn, 2021 ONSC 7434 (CanLII), the court dismissed a Plaintiff's motion to strike a jury notice in an action commenced in the Central East Region.

On November 18, 2021, the Supreme Court of Canada rendered its decision on whereby an insurer may be allowed to deny coverage based on a policy breach discovered several years down the road.

In order to protect limitation periods, especially in cases where liability is yet to be determined, there is an obligation on counsel to identify, name, and pursue all parties who may be liable to the plaintiff(s). However, as the discovery process begins, parties often become aware that they have added in a party that will bear no liability to the plaintiff(s). Often, parties are able to consent to a dismissal or discontinuance without costs; however, there are cases in which defendant(s) will not go out without costs. In these cases, parties can move for a ruling under Rule 23.05...

The recent decision in Surespan Structures Ltd. v Lloyds Underwriters showcases the critical importance of careful draftsmanship of policy wording, particularly in situations where the policy provides unusual or novel types of coverage, leaving little if any case law to guide the interpretation of the policy language.

The action arose from a large construction project having a total value of approximately $400 million. 

This type of insurance has multiple names: adverse costs insurance, trial insurance, and after the event insurance. For the purposes of this paper, we will identify it as adverse costs insurance. This insurance policy protects personal injury plaintiffs against their own disbursements incurred and opposing counsel's costs if they are unsuccessful at trial or even a motion.

A recent decision indirectly raises the interesting question: Can an insurer under a liability policy make an application, at an early stage of its conflict with the insured, for a declaration that the policy is void ab initio for material non-disclosure or misrepresentation? More particularly, can the insurer, facing a duty to defend application made by the insured, and especially when the insurer has no defence available under the policy per se, make that application in response to the insured's application? Or must the insurer find itself subject to an order that it has a duty to defend until a trial is held?

This paper provides detailed information across all Canadian jurisdictions regarding:

• Whether interest from litigation loans is recoverable by the plaintiff in Canadian actions, and
• What the impact is of adverse insurance on litigation across Canada.

This was updated in December 2020 after appeal.

This was a dispute between AIG Insurance Company of Canada and Lloyd's Underwriters in respect of the duty to defend a claim brought against the City of Markham.

The City rented a hockey rink to the Markham Waxers Hockey Club and associated entities. A young boy was injured while attending a game at the hockey rink. He sued the City, Hockey Canada and the Waxers for damages resulting from his injuries.

Amid the ongoing COVID-19 pandemic, courts in Ontario have been working to modify existing online infrastructures and acquire new technologies in order to meet the needs of Ontarians and to maintain the safety of those who work in the courts. In doing so, the Ministry of the Attorney General ("MAG") has recently expanded the Justice Services Online platform and procured "CaseLines" for the use of the Ontario Superior Court of Justice.

The following are some updates around civil matters in the Superior Court of Justice in the Central East Region. Please note they are all subject to change.

The interpretation of a corrosion exclusion was one of the major issues considered in the recent decision in MDS Inc. v Factory Mutual Insurance Company. For reasons outlined below, I believe the interpretation and determination regarding its applicability in the circumstances of the case were incorrect.

You have just been sued for breach of contract by a former business partner.

As you skim through a legal document that sets out a laundry list of your alleged failures and faux pas, a few paragraphs jump out at you. Why does the document make reference to an argument over the design of your company's logo? And why is there commentary on the not-so-secret office romance between two of your employees? As far as you can tell, neither of these issues have anything to do with the contract in dispute.

Following up our recent article on Business Interruption amid the COVID-19 pandemic, the March 30, 2020, Ontario Superior Court decision MDS Inc. v. Factory Mutual Insurance Company continues to remind us that the old adage, ‘you get what you pay for' rings loud and true...

While it has been “business as usual” for some Canadian companies and organizations, with employees working from home, many industries have been forced to cease operations or operate at reduced capacities...

There are various issues operating for an insurer, in both quantifying and crystallizing the terms of the loss, to determine if coverage is triggered pursuant to any given policy of insurance...
 

In Mohammed v The Manufacturers Life Insurance Company, the Ontario Court of Appeal clarified the meaning of material fact to include criminal activities 20 years prior to obtaining life insurance.

In October of this year, our office released a case comment concerning the decision in Hunt v Peel Mutual Insurance Company. In the case, Mr. Hunt (the appellant) and his daughter, Amealia, were passengers in a vehicle driven by Mr. Hunt's girlfriend, Tammy-Lynn Dingman. Ms. Dingman was driving while impaired at the time.  In this case comment. we will further analyze why the Court of Appeal found that Amealia's allegations did not pertain to Mr. Hunt's use or operation of a vehicle.

A duty of good faith is foundational to nearly every contract of insurance, imposing on all parties a duty to act fairly and in good faith in their dealings with one another. In Whiten v. Pilot Insurance Co., the Supreme Court of Canada affirmed the reciprocal duty of good faith, a breach of which would constitute an “independent actionable wrong” compensable through the imposition of punitive damages.

In Gilbraith v. Intact Insurance Company,1 the Ontario Superior Court of Justice offered clarification on the degree of assistance an expert report submitted as an attachment to a solicitor's affidavit can provide in a summary judgment motion. The Court also determined whether the throwing of an object out of a moving vehicle classified as an intervening act sufficient to break the causative link between the plaintiff's injuries and the use and operation of a motor vehicle. This case is significant as it introduces unique analysis that can be used to attribute more injuries to the use and operation of an automobile as well as provide an additional tool to defend a summary judgment motion.

The recent case of Royal & Sun Alliance Insurance Company v. Intact Financial Corp. addressed a coverage litigation extravaganza involving a set of disjointed decisions from the Ontario Superior Court.

The modern shipping industry has drastically influenced the complexity of cargo movements. With this growing complexity of logistics transactions and the industry as a whole, carriers often risk losing out on the payment of freight charges if an intermediary goes bankrupt or otherwise decides to withhold payment.

Although the law in Canada is not so straightforward, carriers have a myriad of legal tools to collect on unpaid freight charges beyond merely advancing a claim for breach of contract against the party by whom they were retained...

It is common for insurance companies to face claims arising from questionable circumstances and reasonable for adjusters and claims handlers to investigate claims with a certain amount of skepticism.

However, a recent judgment from the Ontario Superior Court of Justice has emphasized the principle of fairness in the investigative process...

Dentons LLP has recently become embroiled in a coverage dispute with its insurer over an approximate 1.7 million dollar loss after falling victim to an email scam. Recent Ontario Superior Court decision, Dentons Canada LLP v. Trisura Guarantee Insurance Company tells the tale of how an email scam induced the large multinational law firm into misdirecting approximately $2.5 million dollars of a client's funds which were held in trust.

In TD General Insurance Company v. Intact Insurance Company, the Ontario Court of Appeal provided clarity on the issue of overlapping insurance coverage.

The case involved a boating accident. The owner of the boat held a TD homeowner's policy that covered the driver, who was driving the boat with the owner's permission. The driver was also covered by his own homeowner's policy, issued by Intact. Both insurance policies contained identical “other insurance” clauses, stipulating that the policy would be considered excess if there was other insurance that applied to a claim.

Our previous article covered a pushing incident on a Toronto Catholic District School Board (“TCDSB”) playground in March 2015. Following our previous article, the mother of the injured boy discontinued the lawsuit in question. The TCDSB later discontinued their crossclaim against the two students. While some school boards, students, and parents may be relieved to hear this news, a discontinued claim should not lead them to believe similar claims will simply disappear in the future.

You have been retained to act for the insurer and the driver as a result of a rear-end motor vehicle accident in which the driver has been rear-ended. There is likely no liability against your client and there are no mechanical issues with the vehicle. Unfortunately, and not surprisingly, you encounter a difficult insured who refuses to co-operate and fails to reply to your letters, phone calls, or requests (pleas), that they attend examination for discovery. What do you do?

To what extent must service technicians warn their customers of particular risks associated with the product they are servicing? After presiding over a seven-day trial on liability alone, Madame Justice S. Gomery grappled with this very question and provided a framework to help answer it in her recent decision in Maxrelco v Lumipro Inc., 2018 ONSC 3638.

This decision explains what factors would trigger the duty to warn and in what circumstances would they attract liability.

In Ontario (Children's Lawyer for Ontario) v Ontario (Information and Privacy Commissioner) 2018 ONCA 599, the Court of Appeal for Ontario considered the novel issue of whether a child-client's litigation records with the Children's Lawyer should be subject to a father's freedom of information access request. The Adjudicator at first instance determined that the records were “in custody or under the control” of the Attorney General (“MAG”) and ordered that MAG respond to the father's request. On judicial review at the Divisional Court, the court upheld the order of the Adjudicator. In a rare move, the Children's Lawyer appealed...

In a decision that will likely be replicated by other courts nationwide, Master MacAfee in Robichaud v McAulay, 2018 ONSC 3636, ordered production of an insurer's underwriting file along with the relevant insurance broker's file.

The underlying litigation involved a 2012 motor vehicle accident. The defendant, Kyriakos Constantinidis, was driving his mother's car and rear-ended the plaintiff. The insurer denied coverage to Kyriakos, claiming that he did not have consent to possess his mother's vehicle. The plaintiff pled that Kyriakos had consent, whereas the mother denied providing consent.

In a recent decision, the Federal Court of Appeal confirmed that common interest privilege (“CIP”) is a principle of Canadian law. This principle is unlike solicitor-client privilege, in that communication between counsel and a third party may be considered privileged if the shared information is to benefit both parties, especially with respect to the furtherance of a commercial transaction. The court overturned a Federal Court decision which held that that CIP is not a principle of Canadian law.

Does the duty of good faith require a disability insurer to inform a claimant of a legislative limitation period?

The end of 2017 brought the dismissal of a leave application at the Supreme Court of Canada that relates to this issue and which will be of interest to insurers throughout Ontario and throughout the country.

In Usanovic v. Penncorp, the Ontario Court of Appeal had decided that insurers were not obligated to inform insureds of the two-year limitation period when denying benefits.

Recently in Middleton v Pankhurst,1 the Court of Appeal confirmed the parameters in which insurers may deny coverage on the basis that the insured was not a “person authorized by law” in accordance to Statutory 4 (1) Condition of O. Reg. 777/93:

Authority to drive 
4 (1) The insured shall not drive or operate or permit any other person to drive or operate the automobile unless...

The Office of the Information and Privacy Commissioner of Ontario (“IPC”) recently considered whether and under what circumstances insurers could collect health card numbers from their insureds.

The issue arose when the Ministry of Health and Long-term Care informed the IPC that individuals’ health card numbers were compromised by criminal activity and were being used to file fraudulent claims...

In his infamous article, “The Sharing Revolution – It's About More Than Just Getting Twice the Value For Half the Cost”, Paul Z. Pilzer, an American economist and self-proclaimed ‘social entrepreneur', discusses a phenomenon he refers to as “the sharing revolution”. He calls it the most significant change in the history of the Western world since the nineteenth century when the creation of affordable automobiles forever shaped our society. Mr. Pilzer argues that Uber is only a part of this Sharing Revolution in which everything – how we drive, what we eat, where we sleep – is becoming shared by more than one individual in order to halve the cost. It is this sharing revolution that, according to Mr. Pilzner, will surpass our conventional service providers, will allow for cheaper goods and services and ultimately revolutionize our society.

Recently, the public learned of a lawsuit against two children regarding a schoolyard incident in 2015. With school back in session, what does this current state of affairs mean for students, school boards – and even parents moving forward? Furthermore, what should insurers be thinking about as children fill the halls and playgrounds for another year?

After the Event Insurance (“Trial Insurance”) is a type of insurance that protects personal injury plaintiffs against their own disbursements incurred and opposing counsel's costs if they are unsuccessful at trial. Generally, unsuccessful parties bear the responsibility of paying a, sometimes significant, portion of the successful side's legal costs in addition to their own. The availability of Trial Insurance changes the landscape of personal injury litigation for everyone involved. While the concept of Trial Insurance is relatively new in Ontario, it is already rapidly evolving and becoming more prevalent. How it Works...

This first of its kind collision sparked concern in the technology industry. Debates ensued as to whether the safety feature created to eliminate (or at the very least, reduce) motor vehicle accidents was the cause of the accident, whether human error was to blame, or some combination of the two...

The absence of a law on parental waivers is of particular concern for the countless number of businesses and organizations such as schools, recreational sport facilities, and children's summer camps (to name a few) that rely on these waivers in carrying out their regular activities. However, it appears that clarity may be forthcoming as indicated in a recent New Brunswick case, Dewitt v. Strang...

The last 20 years have seen radical advances in technology, the like humankind has never known. The revolutionary way in which data can now be stored, catalogued, and shared has arguably led to a significant “digitization” of individuals. Simply, more of our lives are being recorded than ever before, whether it be voluntary (Facebook, Instagram, Snapchat etc.) or involuntary (intelligence gathering, surveillance etc.).

In light of this digitization, there has been a growing pressure to carve out a space where neither corporations nor government can intrude on the individual, and when they do, to govern what can be made of that information. This is essentially the concept the law recognizes as “privacy”.

Due to the dangers associated with attending professional sporting events, such as hockey and baseball, leagues across North America have taken action to limit sports-related injuries through the implementation of various safety regulations. 

With the commencement of the annual winter ski season, the legal exposure to ski hill and resort operators arising from injuries suffered by skiers and resort guests alike consequently increases. One of the most common forms of protection from this increase in risk is through the use of waivers.

Pursuant to Rule 30.03 of the Rules of Civil Procedure, a party shall serve an affidavit of documents disclosing all documents within their knowledge, information and belief relevant to any matter in issue in the action that are in the party's possession, control or power.

We will focus on what needs to be included in the affidavit of documents for first party actions.

We have compiled a non-exhaustive list of considerations for the drafting of pleadings for first party actions between the insurer and insured...

Statutory conditions contained within the policy, relief from forfeiture, and limitation period issues, are examples of special considerations when dealing with first party claims...

In your drafting of a Statement of Claim, consider whether there is sufficient evidence to support a finding of bad faith against the insurer. If an insured can prove bad faith against an insurer on a first party claim, the court may award punitive damages against the insurer. However, in our experience, insurers react to a claim for bad faith in a different manner than to a claim for other damages, so you will ‘up the ante' if you plead bad faith... 

The insurance contract is a contract of utmost good faith. This duty is reciprocal. This duty not only requires insurers to respond to and investigate claims in good faith, but also requires insureds to present their claims in good faith. This duty of utmost good faith is an implied term of the insurance contract and should be maintained throughout every step of the claim process.

Insurer

The duty of good faith of the insurer towards the insured has two components...

Generally, an insurance policy will contain the following key information:...

An insurance policy is a contract between the insurer and the insured. A ‘first party' is the party who is insured under an insurance policy and is often referred to as the policyholder or the insured. If an insured makes a claim directly against his/her own insurance company (the ‘insurer') in reliance on an insurance policy, this is referred to as a ‘first party claim'.

Some common examples of a first party claim are...

One of the hardest decisions to make is when to deem an elder relative incapable of caring for themselves independently. When does a duty arise on behalf of an adult child to supervise an elderly relative who is living independently? This question and its possible ramifications provide an opportunity to revisit the case of Morrison, et al. v. Hooper and v. Young, et al.

Justice Pollak's recent decision in Matthew Linton et al v. Tholos Restaurant et al.1 raises the old issue of the extent to which a restaurant must take positive steps to keep an intoxicated patron from hurting himself.

In my opinion, Justice Pollak's decision could extend the liability of a restaurant and make it an insurer of its patrons' safety. This could increase the risk of taverns and their insurers, and expose them to near-unlimited liability.

The main purpose of commercial general liability insurance policies (“CGL policies”) is to provide protection to an insured party against financial losses which may be incurred if the insured is sued by a third party. The relationship between an insurer and an insured party is dependent on the wording of the relevant insurance contract. Typically though, CGL policies, similar to other liability insurance policies, require an insurer to fulfill two distinct, but related duties... 

In R v Villaroman, the Supreme Court of Canada recently dealt with the issue of circumstantial evidence and the inferences that can be reasonably drawn from that evidence in order to find an accused guilty beyond a reasonable doubt.  

PIPEDA requires the full and timely disclosure of personal information generated in the course of commercial activity. However, personal information does not need to be disclosed when the information is generated in the course of a “formal dispute resolution process”, such as an arbitration. For years now, all insurance companies incorporated in Canada have been required to establish procedures for dealing with complaints. The question then arises: does personal information generated in the course of the complaint become subject to PIPEDA?

It is often said that a bill of lading is not a contract of carriage, but is merely “excellent evidence” of its terms. However, the courts are divided on how far beyond the bill of lading we can go, specifically in terms of declaring the value of a shipment. This unpredictability in the law can mean the difference of hundreds of thousands of dollars for a carrier who has lost or damaged cargo in its possession.

The Court of Appeal released a new decision last week on dependency in a priority dispute between Intact and Allstate.

The Court of Appeal reviewed the circumstances of the relationship of the claimants, a woman (Paula) and her two children, who moved in with Paula’s boyfriend (Kyle) only seven weeks before the accident, in order to determine priority...

Pokémon Go, a new app for Android and iOS users, has captured the attention of smartphone users worldwide since its release on July 6, 2016. The app uses the digital camera and GPS technologies in smartphones to create an augmented reality in which users can capture, train, and battle their Pokémon in real life settings. Although a fun and perhaps nostalgic activity for some, Pokémon Go will soon become a real concern for liability insurers.

You will recall that the Ontario Court of Appeal in Keam v Caddey, 2010 ONCA 565 awarded the plaintiff $40,000 in additional costs after an insurer refused (twice) to participate in mediation prior to trial. Aviva Canada took the position that the plaintiff would not be able to meet threshold and therefore Aviva did not believe it was obligated to attend mediation as there was nothing to negotiate.

The Court of Appeal found that the Insurance Act imposes two obligations on the insurer. First, the insurer is obligated to participate in mediation when requested. Second, the insurer is obligated to attempt to settle the claim as expeditiously as possible.

There can be no doubt that cyberbullying is a new and disturbing development that significantly impacts society these days. It has resulted in various high-profile suicides involving teens and has contributed to some of the most horrific events of recent years.

A troubling variation of the commonly understood scope of cyberbullying is the sharing online of private and highly intimate videos of a sexual nature that were never intended to be shared publicly, colloquially referred to as 'revenge porn'.

Not surprisingly, this new form of bullying raises new societal issues, including new potential exposure for insurers.

A recent dismissal by the Court of Appeal for Ontario reaffirms that plaintiffs are required to commence their actions for underinsured, uninsured or unidentified coverage in the jurisdiction in which the contract was made, and for tort actions to be made in a jurisdiction with a presumptive connecting factor.

The Court of Appeal for Ontario recently handed down its latest views regarding when an Ontario court can assume jurisdiction over a non-resident defendant. 

First presented at a Client Seminar, December 16, 2015

In order to determine whether or not subrogation is a viable option with respect to any loss, it is first necessary to consider the cause of the loss, followed closely by who is responsible for the loss.

The purpose of a full and final release is simple. It is an explicit acknowledgement by the settling Plaintiff that it has agreed to resolve its claims as against one or more Defendants, and as a result of that settlement, it is releasing those Defendants from the claims at issue. A full and final release acts as a complete defence in the event that a subsequent action is brought by the same party, for the same cause of action.

Sport and recreational activities invite a certain type of participant. Typically, these participants are committed to the activity they are taking part in and, in most cases, have a drive to be the best at that activity. However, what if during the course of taking part in an activity, the participant suffers an injury? 

This paper will present strategies that can be employed by defendants in shifting the cause of the plaintiff’s injuries back onto the plaintiff themselves.

Today the Ontario Court of Appeal released its long-awaited decision inMoore v. Getahun, dealing with significant issues in relation to the preparation and use of expert witness reports at trial, including the scope of permissible communications between counsel and expert witnesses.

This paper provides an overview of the law of causation as it pertains to a plaintiff that suffers from chronic pain as the result of an injury. It will begin with an analysis of recent Supreme Court of Canada jurisprudence regarding how a plaintiff can establish factual causation through the “but for” test. It will then provide an analysis of legal causation, which has also been referred to as “remoteness”. In the remoteness analysis, the paper will clarify when chronic pain can be considered a foreseeable injury, and discuss the principle of the “thin-skulled plaintiff”. It will conclude by exploring how the courts apportion damages when faced with pre-existing injuries, and in particular, the principle known as the “crumbling skull”.

Surveillance is a powerful tool in cases involving plaintiffs with chronic pain, because it can lend objectivity to a case rife with subjective reporting. 

Overall, the relative cost of surveillance evidence as compared to its benefit, often makes it a cost-effective tool in personal injury litigation.

There are, however, important rules that defence counsel must abide by when gathering surveillance. These disclosure requirements are discussed below, and they suggest that surveillance should be gathered and disclosed early in the litigation process in order to encourage early resolution of the matter, if at all possible.

We believe that Farrell Estates Ltd. v Canadian Indemnity Co. and Zurich Insurance Co. v Ison T.H. Auto Sales Inc. were incorrectly decided.

At common law, an insurer’s right of subrogation did not arise until the insured had been fully indemnified for both insured and uninsured losses. One consequence was the subsidiary rule that the insurer had no right to control the action against the wrongdoer until that full indemnity had been achieved by the insured. That common law rule has, however, typically been altered by the terms of the insurance policy and by statute.  Continued... 

Why would a settling defendant who has paid the plaintiff money ever want to remain in a lawsuit and incur the costs of going to trial? The fact that there are not many good answers to this question is the reason why Mary Carter agreements are rarely used except in high-exposure cases.

For practical purposes, the only two characteristics of a modern Mary Carter agreement are as follows:

In a recent Supreme Court of Canada decision, Sable Offshore Energy Inc. v. Ameron International Corp. the SCC provided clarification pertaining to what may be considered a customary demand from defendants’ counsel during the course of settlement negotiations involving co-defendants who have reached settlement by way of Pierringer Agreements (“settling defendants”). In such contexts, defendants’ counsel have been known to request the terms of settlement, and on occasion, the settlement amount reached. In clear and explicit terms, the SCC in Sable enunciated the extent to which non-settling defendants are entitled to such information; and by extension, the extent to which plaintiff’s counsel may deny such requests.

In ACE INA Insurance v. Associated Electric, the Ontario Court of Appeal upheld an Ontario Superior Court of Justice decision which held that unless prescribed otherwise by statute, an excess insurer is only required to contribute to defence costs if it has a duty to defend or if such contribution is expressly stated in the policy.

The court looked at the doctrine of equitable contribution and its application to an excess policy which contained no duty to defend.

There have been a number of interesting tort decisions over the last twelve months, some providing much needed clarification to the existing common law and some creating brand new law. As has been a trend in the past few years, damage awards have also seen an increase, primarily as a result of rising future care costs damages.

This paper examines five interesting tort decisions that were released over the course of the past year and have received substantial attention. It also examines the state of increasing future care costs awards and provides some helpful case law to consider when facing a significant future care costs claim.

Insurance brokers must be cautious when dealing with corporations that opt their executive officers out of Ontario's workers' compensation scheme. A failure to appreciate the relationship between statutory and private coverage risks inadvertent exposure to significant liability.

Unfortunately for one insurance brokerage, this is exactly what happened in the recent Ontario Court of Appeal decision of Sam's Auto Wrecking Co Ltd (Wentworth Metal) v Lombard General Insurance Company of Canada. The unforeseen gap between workers' compensation coverage and general liability insurance coverage ended up costing Dalton Timmis Insurance Group ("Dalton Timmis") hundreds of thousands of dollars.

In Boyce v. Co-Operators General Insurance, 2013 ONCA 298, the Boyces owned and operated a women's fashion boutique. One day, Ms. Boyce entered the boutique to discover a foul odour, and contacted the boutique's insurer the Co-Operators to report the claim. The business was closed for a time because substantial clean-up costs were incurred and a great deal of inventory could not be salvaged. Co-Operators took the position that the smell was caused by a skunk and that the damage was not covered by the policy. The Boyces claimed the business had been vandalized, a peril covered by the policy.

The Boyces issued a Statement of Claim against Co-Operators more than one year after they discovered the foul odour, but less than two years after the incident. Co-Operators moved for summary judgment claiming that the action was time-barred by a one-year limitation period. The judge dismissed Co-Operators' motion. Co-Operators' appealed the decision to the Ontario Court of Appeal.

Intact Insurance Company, Belair Insurance, Nordic Insurance Company and Trafalgar Insurance Company (the Insurers) brought a motion for a stay of proceedings¹ in 15 arbitration cases pending at the Financial Services Commission of Ontario (FSCO). The motions were heard together.

Insurance policies must be interpreted in accordance with the well-established rules of policy interpretation... ambiguities in insurance contracts are to be construed against the insurer. This paper will give you tips and samples on watching for industry jargon, fancy grammar, consistency and broad terms.

Today, preparation for and seeking opportunities to avoid litigation prior to the loss even occurring is an integral part of the claim management process. It has become more complex not only because insurers and their insureds are more educated but they also, separately and together, want to be involved and understand the litigation process. It is also important to highlight that insureds, in particular, have developed higher expectations not only of the information they receive, but also the service they receive and the overall experience from the time they report the claim until resolution.

The Ontario Court of Appeal recently released this important decision on the position of an insurer whose subrogated claim is combined, as it must be, with the insured's uninsured loss claim in a single action.

The underlying action arose out of a fire and explosion as a result of which numerous new cars belonging to the insured, an automobile dealer, were damaged.

The matter was somewhat complicated by the fact that a class action had been commenced as a result of the loss event, and the insured had opted out of that class action, although the separate action commenced by the insured was ordered to be tried together with the class action and the two actions were being jointly case-managed.

The Ontario Court of Appeal recently delivered a decision interpreting the pollution exclusion commonly found in commercial general liability (CGL) insurance policies. Such exclusions typically preclude coverage for the insured's liability for the release or escape of pollutants at or from the insured's premises.

Three important, and in two of the three instances perhaps questionable, principles are considered in this recent decision of the Ontario Court of Appeal. The factual background of the case may be briefly stated as follows:  There was a fire protection system in the insured condominium complex.  As a result of a faulty design/installation an event occurred, resulting in flooding. Although only part of the equipment was damaged, the insured replaced, and made a claim under the policy for, all.  This was based on the position that the system as a whole was damaged and the unsupported allegation that it was a reasonable and responsible step to replace it in its entirety...

The Supreme Court of Canada recently released its decision in the case of Co-operators Life Insurance v. Gibbens, 2009 SCC 59, in which an insured sought coverage under a group accident insurance policy for having contracted a sexual disease after having engaged in unprotected sex with a number of women. 

Primmum Insurance Company v. Allstate Insurance Company, 2010 ONSC 986, involved an application for the appointment of an arbitrator in respect of a loss transfer dispute between Primmum Insurance Company and Allstate Insurance Company.

Rougoor v. Co-operators General Insurance Co., 99 O.R. (3d) 139, involved an action which arose as a result of a dirt-bike incident that occurred in Florida. The appellant was insured under a standard automobile policy with the respondent. Her policy of insurance with the respondent, listed, among other family-owned vehicles, one off-road dirt bike of which she was listed as the principal driver. The appellant was also listed as a secondary driver for another off-road dirt bike under the same policy of insurance.

In Lockhard, the plaintiff Lockhard was injured in a single-vehicle accident when her vehicle was being driven by the defendant Quiroz with her consent. At the time of the accident, the plaintiff's vehicle was insured by the third party C.A.A. Insurance Co. (Ontario) ("CAA"). The plaintiff sued the driver for damages.

The plaintiff, in Tucci v. Pugliese, [2009] O.J. No. 2956, Maria Tucci, was seated in her kitchen when an uninsured motor vehicle driven by the defendant, Giuseppe Pugliese, ran into a wall of her house.  The collision caused a sudden, loud bang and violent shaking of the house, which allegedly caused tremendous shock to the plaintiff and inflicted damage to the home estimated at between $85,000 and $100,000...

In the recent Ontario decision, Winckle v. Siodlowski, [2009] O.J. No. 4807 (Ont. S.C.J.)., Justice Hockin decided the applicability of the statutory deductible in a case where damages were assessed at exactly $100,000.

In Fourniev v. Coachman, the claimant was injured in an MVA on August 11, 2004.  He applied to Coachman Insurance for a determination of catastrophic impairment under the Schedule and Coachman concluded that he was not catastrophically impaired.  The parties applied for Arbitration since they were unable to resolve their dispute through mediation. The issue in dispute was whether the claimant suffered a catastrophic impairment...

Pastore v. Aviva, FSCO A04-002496, involved a claimant, Anna Pastore, who was a pedestrian involved in a motor vehicle accident on November 16, 2002. The matter proceeded to Arbitration on a number of issues including whether Ms. Pastore suffered a catastrophic impairment...

Until the decision in C.C.R. Fishing Ltd. v Tomenson Inc., the element of causation in insurance law, particularly in the context of insuring provisions, revolved largely around the concept of proximate cause, meaning the effective and dominant cause of the loss.  Since that decision, the focus has shifted to a consideration of the impact of concurrent causes, both in regard to insuring agreements and exclusion clauses.

An area that has not, however, received the attention it merits is the distinction between serial and independent concurrent causes.

A long-standing insurance dispute over the failure of a massive tunnel boring machine (“TBM”) ended in late November 2008 with a ruling by the Supreme Court of Canada awarding nearly $40 million to the insured. The decision addresses the “faulty or improper design” exclusion common to most “all-risks” property policies.