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August 2022

The Mechanics of The Duty to Defend, The Duty to Indemnify, And Additional Insureds

Garett Harper
Garett Harper


by Garett Harper

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 entails the insurer paying for, and instructing, legal counsel in the defence of a claim brought against its insured by a third party. The second obligation is called the "duty to indemnify". This duty requires the insurer to pay for any judgment awarded to the third party against its insured or any settlement that the parties have reached in lieu of judgment.1

The duty to defend when properly understood from the insurer's point of view is both a contractual obligation and a contractual right. The duty to defend acts as an obligation on an insurer for the obvious reason that it is invoked by its insured to shield the insured from the significant costs associated with defending an action. However, given that a typical CGL policy creates a duty on an insurer to indemnify its insured, having control of the defence of the lawsuit is advantageous for the insurer. Even if it is clear that the insured is liable, the insurer can attempt to minimize the damages attributable to its insured, thereby reducing the financial impact of the insurer's obligation to indemnify its insured. Having control of the defence then can be seen as a benefit to the insurer thus making the duty to defend a contractual right of the insurer as well.2

...the duty to defend (is) a contractual right of the insurer...

An insurer's duty to indemnify its insured will only be triggered after the merits of the law suit have been determined by a court or after a settlement agreement has been reached. This is non-controversial as the determination of liability and the quantum of damages must be resolved in order to determine if, and to what extent, they fall within the indemnity coverage provided by the liability insurance policy. This is not the case with an insurer's obligation to defend an insured against a lawsuit from a third party. Although the duty to defend is triggered well before the merits of the lawsuit are determined, when exactly the duty arises is a question courts have grappled with.3

In 1990, the Supreme Court of Canada ruled in Nichols v. American Home Assurance Co., that an insurer's duty to defend arises only if, assuming that the facts as alleged in the pleadings were proven true, an insurer would have an obligation to indemnify its insured.4 This decision cites a judgment from the British Columbia Superior Court that held, "the pleadings govern the duty to defend".5 Nichols stands for the proposition that in order for the duty to defend to arise, it is not necessary to prove that the duty to indemnify will certainly arise. Rather the "mere possibility that a claim within the policy may succeed" is enough to trigger the duty to defend.6

The True Nature of the Claim

Ten years after the decision in Nichols, a problem developed. It was thought that the ruling in Nichols incentivized parties who were issuing claims against defendants who were insured, to draft their pleadings in as broad a manner as possible to capture at least one allegation that would be covered by the "four corners" of the defendant's insurance policy. In doing so, plaintiffs were thought to be intentionally triggering the duty to defend on the part of the defendant's insurer and presumably hoping that the insurer would settle the claim before the merits of the action could be decided by a judge.7 Therefore in order to address this concern, the Supreme Court of Canada in Non-Marine Underwriters, Lloyd's of London v. Scalera, clarified what the analysis should be when determining whether an insurer's duty to defend is triggered.8

The facts of the Scalera decision are illustrative. Mr. Scalera was sued for damages arising from a series of sexual assaults that were allegedly perpetrated by him against a young woman over a period of several years.9 The pleadings raised numerous allegations including an allegation of negligent battery.10 Mr. Scalera sought coverage for the defence of this claim pursuant to his homeowner's insurance policy, as some of the allegations dealt with negligence, which he argued fell within the ambit of the policy.11 The insurer refused to provide a defence, because the policy specifically excluded coverage for bodily injury caused by intentional or criminal acts, and the insurer claimed that sexual assault is always intentional.12 The Court sided with the insurer and found that all of the allegations that were in the pleadings were based on the same set of facts and were "derivative of the claim for sexual battery" and therefore were also covered by the exclusion for injuries intentionally caused.13 The Court in Scalera clarified the Nichols ruling by stating that the connection between the duty to defend and the pleadings is not determined solely with regards to the language of the pleadings. Instead, the determination is based on what the pleadings reveal to be the "true nature of the claim".14 After the ruling in Scalera, the decision in Nichols can be said to stand for the proposition that, "having determined the nature of the claim, an insured need not further prove that the claim would succeed" in order for the duty to defend to be triggered.15

To determine the "true nature" of the claim, Courts have been encouraged to "look behind the literal terms of the pleadings" in order to assess which of the legal claims put forward by a plaintiff could be supported by the factual allegations.16 The purpose of the analysis is to discern the true "substance" of the allegation. The analysis should be framed by assuming the truth of the plaintiff's factual allegations and asking whether the pleadings could possibly support the plaintiff's allegations.17 In undertaking this analysis, courts are allowed to look at any extrinsic evidence that has been explicitly referred to within the pleadings to assist in determining "the substance and true nature of the allegations".18 However, the Ontario Court of Appeal recently clarified that extrinsic evidence not mentioned in the underlying action or "premature" evidence should not be considered in a duty to defend application, to avoid the risk of it becoming a "trial within a trial" and ensuring an expeditious determination of the issue.19 For the purpose of determining what the "true nature" of the claim is and whether a duty to defend arises from it, the term "pleadings" includes any cross claims or third party claims, in so far as they are relevant in defining the substance of the allegations.20 Pleadings are also to be interpreted broadly, and any doubt is to be resolved in favour of the insured.21

Once the true nature of the claim has been determined, one must then consider whether the policy is triggered by the allegations. It is at this step of the process where the value of precise and unambiguous language in a CGL policy shines.

The Importance of Good Contract Drafting

In Ontario Society for the Prevention of Cruelty to Animals v. Sovereign General Insurance Co., the Ontario Court of Appeal dealt with an insurer's duty to defend under a CGL policy of insurance.22 In that case, three separate actions for malicious prosecution were brought against the Ontario Society for the Prevention of Cruelty to Animals (the "OSPCA") who had charged three individuals with animal cruelty offences. After those charges were ultimately withdrawn, the three individuals launched a civil suit against the OSPCA. The OSPCA reported the claims to its insurer and requested that it provide a defence. The insurer refused to defend the actions as they relied on, an exclusion clause in the policy that stated no coverage would be granted when there are allegations of willfully violating a penal statute. The insurer's position was based on an allegation in the pleadings that the OSPCA violated an order of the Animal Care Review Board, which is an offence under the OSPCA Act. The insurer further argued that the OSPCA Act was a penal statute and therefore the exclusion clause is triggered.

At the court of first instance, the insurer was ordered to defend the actions.23 The Court of Appeal upheld that decision and dismissed the insurer's appeal. The Court found that the interpretation of insurance contracts involves a unique blend of the general principles of interpretation applicable to all contracts and the unique principles applicable in the insurance setting.24 While courts have found that the "language of the policy" is the most important factor in determining whether coverage is granted or excluded, courts have found that where there is genuine ambiguity or doubt, the duty to defend ought to be resolved in favour of the insured.25 Similarly other insurance law principles should be considered, such as the principle that coverage provisions should be construed broadly and exclusion clauses should be construed narrowly.26 It was this last principle that the Court looked to in making a decision in this case.

The Court determined that, notwithstanding the prohibitions that the OSPCA Act creates, the object of the legislation taken as a whole is not to punish behaviour that is morally blameworthy, but rather to prevent cruelty to animals. The Court found that the statute was remedial, rather than penal, and therefore the exclusionary clause in the insurance policy was not triggered.27 One of the key lessons about careful policy drafting is the importance of considering the implications of the language being used in the policy, in light of who the insured is and what risks they may face in the course of carrying out their functions. If the OSPCA's insurer had drafted the policy in a broader manner, to include the willful violation of, for instance "any and all statutes", the insurer would have been able to rely on the exclusionary clause.

...where there is genuine ambiguity or doubt, the duty to defend ought to be resolved in favor of the insured...

Although courts have established that where there is genuine ambiguity or doubt, the duty to defend ought to be resolved in favour of the insured, the Ontario Court of Appeal has said that this principle of interpretation "has no application where the wording of the policy is plain on its face and capable of only one meaning. Trite though it may be, an insurer has the right to limit coverage in a policy issued by it and when it does so, the plain language of the limitation must be respected".28 Insurers should ensure that exclusionary clauses are drafted clearly, unambiguously and as broadly as possible in order for a court to uphold the clause and decide the issue in the insurer's favour, as occurred in the case detailed below.

In Panasonic Eco Solutions Canada Inc. v. XL Specialty Insurance Company, the Ontario Court of Appeal allowed the insurer's appeal and held that there was no duty to defend against two claims of breach of contract brought against the insured.29 In this case, a group of companies operating collectively as Solar Flow-Through Fund ('Solar') brought these claims against the insured party, Panasonic Eco Solutions Canada Inc. ('Panasonic'). Panasonic had entered into two agreements with Solar. The first was an Engineering, Procurement, and Construction Agreement ('Engineering Agreement') that required Panasonic to procure, construct and install solar electricity generating systems by a certain date. They failed to do so, which resulted in Ontario's Independent Electricity System Operator ('IESO') cancelling several of their contracts with Solar. Following the cancellation, Panasonic, Solar, and the IESO entered into a second Proceeds Agreement where some of the contracts were re-issued, but to Panasonic. Solar claimed liquidated damages and alleged that Panasonic was in breach of its contractual obligations under the Engineering Agreement because it failed to achieve substantial completion of the generating systems by the agreed date. It also claimed damages for breach of contract related to the second Proceeds Agreement, or in the alternative, negligent misrepresentation, or in the further alternative, unjust enrichment.

The insurer, XL, had entered into a contract with Panasonic that stipulated the insurer would cover any losses arising from the company's errors in providing professional services. The contract contained the following exclusion:


"This policy does not apply to any Claim, Professional Loss…

B. Contractual Liability

arising from the Insured's:

1. Assumption of liability in a contract or agreement; or
2. Breach of contract or agreement.

This exclusion does not apply to: (i) liability that the Insured would have in the absence of the contract or agreement…"30


Citing the policy, XL denied Panasonic coverage for Solar's claims, as breach of contract was not covered under their policy of insurance. The application judge disagreed, finding XL had a duty to defend one of the claims but not the other. They held that Solar's claim for liquidated damages from the first Engineering Agreement arises out of Panasonic's "acts or omissions" and could have been caused by its negligence, which would fall within coverage.31 However, the second Proceeds Agreement was effectively a debt claim arising out of the contract, and the alternative claims of negligent misrepresentation and unjust enrichment were excluded under the policy.

On appeal, the application judge's decision was partially overturned. The Ontario Court of Appeal found that while the contractual exclusion in the XL had no ambiguity, the exception in the last line is ambiguous because the insured would have no relationship with the claimant without a contract or agreement. As such, the court applied the principles of contractual interpretation to interpret the terms in accordance with the reasonable expectations of the parties and provide a realistic result.32 They determined that XL's policy covers professional losses caused by the performance of its professional functions regardless of the terms of the contract.

With respect to the Engineering Agreement, the court found that while the delay was caused by an act or omission that would ordinarily be covered by XL's policy, Panasonic had agreed to a 'liquidated damages clause' in the agreement which effectively contracted out of its insurance coverage.33 The obligation to pay liquidated damages is thus purely contractual and would not arise otherwise.34 The application judge had erred in his interpretation as he failed to note that Solar had contracted out of any claims against Panasonic for negligence. Regarding the Proceeds Agreement, the Court agreed with the application judge that the claim fell squarely within XL's policy exclusion. The claim arises out of the contract and there would be no claim without it. It is therefore crucial for insurers when drafting exclusionary language that the wording is clear and unambiguous. Otherwise, courts will resort to principles of interpretation as they did in this case. Additionally, this case serves as a signal of how courts will interpret similarly worded contractual liability exclusions in insurance policies.

In Kohanski v. St. Paul Guarantee Insurance Co. the Ontario Court of Appeal similarly allowed an insurer's appeal of an order requiring it to defend its insured.35 Here, the insured was sued by an association for which the insurerd had formerly acted as a director. The association claimed the insured had breached his fiduciary duty and had committed the tort of conspiracy. The insurer took the position that the policy did not cover actions brought by the association against the insured, as the association was also an insured under the policy. The policy contained an exclusion for claims brought by other insured parties under the same policy.


"Section IV(7) of the Policy provides: The Insurer shall not be liable to make any payment for loss in connection with any claim made against the Directors and Officers:

(7) which is brought by or at the behest of the Corporation, or any affiliate of the Corporation, or by any security holder of the Corporation whether directly or derivatively except where such security holder bringing such claim is acting totally independently of, and totally without the solicitation of, or assistance of, or participation of, or intervention of, any Director or Officer, or the Corporation or any affiliate of the Corporation."36


The Court referred to this type of exclusion clause as "the insured versus insured exclusion"37 The Court agreed with earlier jurisprudence that found that the language of these clauses is "in no way ambiguous" and that this type of clause operates to exclude coverage when one insured sues another insured.38 The Court said that in such circumstances, its obligation is to give effect to the language of the contract unless to do so would "defeat the main object of the contract or virtually nullify the coverage".39 The Court ruled that since the claim was clearly excluded from coverage by reason of an unambiguous clause, the insurer did not have a duty to indemnify its insured, and therefore did not have a duty to defend him in the underlying action. The Court found that where the language of the contract is clear and unambiguous, it must give effect to that language.40

The precise language of an insurance policy can be the determinative factor as to whether an insurer owes a duty to defend its insured or not, as was the case in Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, a 2006 decision of the Supreme Court of Canada.41 At issue in the appeal was whether an insurance policy issued by the Guardian Insurance Company of Canada ("Guardian") to the Jesuit Fathers of Upper Canada ("Jesuits") imposed on Guardian the duty to defend certain actions for damages arising out of the operation of the Jesuits residential school in Ontario. The allegations related to physical and sexual abuse of students at the school. The policy in question was a "claims-made" policy. At issue in this appeal was the scope of the coverage provided by the insurance agreement, which read in part:


"To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages, because of injury arising out of the rendering of, or failure to render professional services in the practice of the Insured's profession, provided, however, that coverage as provided herein shall apply only to claims which are first made against the Insured during the policy period as stated in the Declarations".42


In order to understand the decision, in this case, it is important first to appreciate the various types of policies that are available when insuring against risks arising from the offering of professional services. The Court in paragraph 23 of their decision summarized this succinctly:


"Significant variation may be observed in the nature and structure of policies insuring against risks arising from the offering of professional services. Generally, the drafting of such policies reflects two main approaches for the determination of whether a claim is captured, from a temporal perspective. The first and more traditional approach, the occurrence-based approach, focuses on the occurrence of the negligent act. If the negligent act giving rise to the damages occurred during the policy period, the insurer is required to indemnify the insured for any damages arising from it regardless of when the actual claim is made. The second approach, the claims-made approach, focuses on the claim made by the third party. If a claim is made by a third party during the policy period, the insurer is required to indemnify regardless of when the negligent act giving rise to the claim occurred. Naturally, a particular policy may use the first or the second approach or a hybrid of both. The issue is always what a particular policy dictates".43


The policy at issue in this case, was crafted in such a way that in order to engage the insurer's duty to defend, it required the communication, during the policy period, by a third party, of an intention to hold the Jesuits responsible for damages.44 In this case, it was accepted by the parties, that if the claims were made within the temporal limits of the Policy, the duty to defend would have been engaged as the claims allege injuries that would fall within the policy.45 In fact, the Court found one of the claims was made within the policy period and, therefore, did trigger the insurer's duty to defend.46 The rest of the claims, however, were found not to have been communicated during the policy period and, as a result, the insurer did not have a duty to defend the actions.47 The determination of whether a policy will be "claims-made" or "occurrence based" will depend on many factors. However, it's clear that prior to drafting a particular CGL policy, an insurer should be fully cognizant of who the intended insured party is and what sort of potential claims they might face, before determining which type of policy should be drafted.

D.E v. Unifund Assurance Co is another important decision of the Ontario Court of Appeal that shows why clearly drafted exclusion clauses are crucial to the determination of whether a duty to defend will be triggered or not. In this case, the Court was tasked with determining whether an insurer had a duty to defend its insured under a homeowner's policy against a claim alleging that the insured's Grade 8 daughter had bullied her classmate, causing physical and psychological injuries.48 The claim alleged that the insured was negligent in their failure to control their daughter. The insured requested that their insurer defend and indemnify them under the policy. The insurer refused on the basis that the claims fell outside of the policy's scope of coverage, due to exclusionary clauses with respect to intentional assault. The motion judge rejected the insurer's position and granted the insured a declaration that the insurer had a duty to defend and indemnify them. The insurer succeeded on appeal. The key provisions of the insurance policy were:


"SECTION II -- Liability Coverage

Coverage E -- Personal Liability
This is the part of the policy you look to for protection if you are sued. We will pay all sums which you become legally liable to pay as compensatory damages because of unintentional bodily injury or property damage arising out of:

1. your personal actions anywhere in the world...

Exclusions -- SECTION II
We do not insure claims arising from:

6. bodily injury or property damage caused by an intentional or criminal act or failure to act by:

(a) any person insured by this policy; or
(b) any other person at the direction of any person insured by this policy;

7.(a) sexual, physical, psychological or emotional abuse, molestation or harassment, including corporal punishment by, at the direction of, or with the knowledge of any person insured by this policy; or

(b) failure of any person insured by this policy to take steps to prevent sexual, physical, psychological or emotional abuse, molestation or harassment or corporal punishment".49


The Court found that the language of the plaintiff's claim made it obvious that the claim was a negligence claim.50 The Court then compared the language in the claim to the language in exclusionary clause 7(b) cited above. MacPherson JA, writing for the unanimous court, stated, "I see no ambiguity in the wording of this clause. The first word of the clause is ‘failure' which…is also the centrepiece of the Amended Statement of Claim".51 The court concluded that "exclusion clause 7(b) is clear on its face and it applies to the lawsuit".52 The insurer, therefore, did not owe a duty to defend in this circumstance.

The Ontario Court of Appeal also recently addressed a dispute between two insurers over the duty to defend where there is concurrent insurance coverage involving more than one policy. In Markham (City) v. AIG Insurance Company of Canada, a young boy started a lawsuit against the City of Markham and Hockey Canada after he was struck in the face by a hockey puck while watching a game.53 The City had rented out one of their hockey rinks to Hockey Canada and two other hockey associations. The City was insured by Lloyd's Underwriters under a CGL policy and was also listed as an additional insured under Hockey Canada's policy with AIG. AIG agreed to defend the action, but they claimed that Lloyd's has a concurrent duty to defend and must pay an equitable share of the City's defence costs.

... the two insurance policies provided different coverage and accordingly owed a concurrent duty to defend.

The court found that the two insurance policies provided different coverage and accordingly owed a concurrent duty to defend. While Lloyd's Underwriters' policy provided coverage with respect to all claims of bodily injury, personal injury, or property damage arising out of an "occurrence," AIG only provided coverage in respect of Hockey Canada's operations.54 Since the pleadings included allegations of negligence both related and unrelated to the operations of Hockey Canada, it would permit coverage under both policies if proven true. Accordingly, AIG and Lloyd's must share the defence costs equally, subject to reallocation once the action is concluded. Additionally, AIG has a prima facie right to participate in the defence, including retaining and instructing counsel.

This case is significant as insured organizations and municipalities will often have their own insurance while also requiring additional insurance in their favour when signing contractual agreements. Markham denotes that in situations involving discrete claims covered by separate insurance policies, both insurers may possess a duty to defend and right to participate in the defence.

Requests by Additional Insureds

What does it mean when one party is asked to defend another party under a contractual obligation, and what are the appropriate strategies to use in this situation? In Seidel v. Markham, the Ontario Court of Appeal dealt with this issue.55

The case involved a plaintiff who allegedly slipped and fell on an icy sidewalk in the City of Markham that was maintained by V.T.A. Construction ("V.T.A."). V.T.A had a winter maintenance contract with the city. Under the terms of the agreement, V.T.A had listed Markham as an additional insured under its policy with Intact, "but only with respect to the legal liability arising out of the operations of V.T.A."56

Markham brought a third party claim against V.T.A and Intact, seeking contribution and indemnity as well as a declaration that Intact owed the city a duty to defend and indemnify against the plaintiff's claims. V.T.A was later added as a defendant to the action.

Counsel for V.T.A was instructed to defend Markham. Although an Assumption of Defence agreement was drafted, it was never signed. V.T.A. delivered a Notice of Change of Lawyer confirming it would represent both Markham and V.T.A. Thereafter, V.T.A.'s counsel brought a motion to remove itself as counsel and new counsel was subsequently appointed for V.T.A., but not Markham. In response, the City brought a motion seeking to enforce Intact's duty to defend and indemnify Markham in the proceedings. The motion judge dismissed the motion, finding there had not been a "meeting of the minds" between the parties on whether indemnification was clearly agreed upon.

The decision was reversed on appeal. The Court of Appeal for Ontario found Intact had agreed to defend and indemnify Markham was clear when it appointed common counsel for both parties. In order to deny indemnification, Intact ought to have appointed separate counsel for V.T.A. and Markham as they would have been in a very apparent conflict of interest.

This decision serves as a caution to insurers about choosing to defend an additional party without clearly delineating any reservation of rights or cost-sharing agreement. Options available to insurers when faced with a claim to defend and indemnify an additional party include:

  1. denying any obligation to defend and indemnify; or,
  2. accepting the obligation to defend but enter into a cost-sharing or assumption of defence agreement to preserve the ability to resist indemnification.

Both options would make it clear that the main party and additional insured are still adverse in interest.


When a court is tasked to determine whether an insurer owes its insured a duty to defend them against a claim brought by a third party, the court will first look to the pleadings to assist them in making a determination of what the true nature of the allegations is.

Once the nature of the claim being made against the insured has been identified, courts will then turn their attention to the insurance policy wording to assess whether the allegations against the insured are covered by the policy or not. Insurers should be very careful as to how they word the policies they underwrite since as demonstrated by the cases we have discussed, all it takes is the presence or omission of just one word from the policy, to result in the insurer having to incur the costs of defending the claim. Prior to drafting a policy or even determining what the nature of the policy will be (claims based or occurrence based), insurers should be cognizant of who the potential insured party is and what the anticipated risks are, that they are seeking to insure against. Exclusionary clauses should be drafted broadly, but at the same time, insurers should be wary of making the clauses ambiguous, since ambiguity is resolved in favour of the insured.

Pleadings and policy language ought to be carefully analyzed prior to making any determination as to whether a duty to defend or a duty to indemnify exists.

If you are asked to assume the defence of another party pursuant to a contractual obligation, remember to consider the duty to indemnify. As the duty to defend is broader than the duty to indemnify, there is a possibility the former exists without the latter. In these situations, cost-sharing or assumption of defence agreements should be utilized to reserve any rights that may exist to exclude the duty to indemnify, which can only be determined following resolution and/or disposition of the action. Electing to simply defend another party – full stop – without the use of these side agreements will compromise the insurer's ability to argue it has no duty to indemnify that party at a later stage.

  1. Barbara Billingsley, General Principles of Canadian Insurance Law, 1st ed, Student ed, Lexis Nexis, at 233.
  2. Supra note 1 at 234
  3. Ibid.
  4. Nichols v. American Home Assurance Co [1990] 1 SCR 801at para 16-17.
  5. Ibid at 16 citing Bacon v. McBride (1984), 6 DLR (4th) 96.
  6. Ibid at 17.
  7. Supra note 1 at 236.
  8. Non-Marine Underwriters, Lloyd's of London v. Scalera [2000] 1 SCR 551.
  9. Ibid at 56.
  10. Ibid at 57-58.
  11. Ibid at 79.
  12. Ibid at 59.
  13. Ibid at 54.
  14. Ibid at 79.
  15. Ibid at 81.
  16. Monenco Ltd. v. Commonwealth Insurance Co. [2001] 2 SCR 699 a par 34.
  17. Ibid.
  18. Ibid at 36.
  19. IT Haven Inc. v. Certain Underwriters at Lloyds 2022 ONCA 71 at para 23, 39.
  20. Virani v. Intact Insurance Co. 2015 ONCA 400 at para 6.
  21. Panasonic Eco Solutions Canada Inc. v. XL Specialty Insurance Company, 2021 ONCA 612 at para 22.
  22. Ontario Society for the Prevention of Cruelty to Animals v. Sovereign General Insurance Co. 2015 ONCA 702
  23. Ontario Society for the Prevention of Cruelty to Animals v. Sovereign General Insurance Co. 2014 ONSC 3345 at para 113.
  24. Supra note 23 at para 39.
  25. Ibid at para 42.
  26. Ibid citing Reid Crowther & Partners Ltd. v Simcoe & Erie General Insurance Co, 1993 1 SCR 252.
  27. Supra note 21 at 78-86.
  28. Kohanski v. St. Paul Guarantee Insurance Co [2006] OJ No. 157 (ONCA) at para 41 citing Stuart v. Hutchins [1998] OJ No. 3672 at paras 29-30.
  29. Panasonic Eco Solutions Canada Inc. v. XL Specialty Insurance Company 2021 ONCA 612.
  30. Supra note 30 at para 27
  31. Ibid at para 16.
  32. Ibid at para 32, citing Progressive Homes Ltd. v Lombard General Insurance Co. of Canada 2010 SCC 33 at para23.
  33. Supra, note 30 at paras 38-39.
  34. Ibid at 38.
  35. Supra, note 28.
  36. Ibid at para 5.
  37. Ibid at para 13.
  38. Ibid at paras 14, 37.
  39. Ibid at para 38.
  40. Ibid at para 42.
  41. Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada [2006] 1 SCR 744
  42. Ibid at 36.
  43. Ibid at para 23.
  44. Ibid at para 1.
  45. Ibid at para 55.
  46. Ibid at para 14.
  47. Ibid at para 1.
  48. D.E v. Unifund Assurance Co. 2015 ONCA 423.
  49. Ibid at para 11.
  50. Ibid at paras 22-23.
  51. Ibid at paras 25-26.
  52. Ibid at para 28.
  53. Markham (City) v. AIG Insurance Company of Canada 2020 ONCA 239.
  54. Supra note 64 at paras 19,23.
  55. Seidel v. Markham 2016 ONCA 306.
  56. Supra note 65 at para 2.

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