Andrew Alfonso Evangelista

Three consolidated applications concerning the duty of various insurers to defend Ontario in connection with a bridge collapse in Elgin County in 2018.

Ontario sought orders requiring Aviva Insurance Company of Canada and Royal & Sun Alliance Insurance Company of Canada to defend two related lawsuits and to share defence costs equally.

The insurers argued they had no duty to defend or, alternatively, that defence costs should be allocated on a "time on risk" basis.

The court found that Aviva and RSA owed a duty to defend based on the allegations of property damage to anchor rods occurring during their respective policy periods, despite the loss of use occurring after the policies expired.

The court rejected the "all sums" approach and adopted a "time on risk" allocation, requiring Aviva to pay 5.5% and RSA to pay 11.1% of defence costs.

The secondary applications by Aviva and RSA against AIG and St. Paul were dismissed as moot.

This appeal concerns whether Honda Canada Inc. is entitled to indemnity from Tokio Marine & Nichido Fire Insurance Ltd. for class counsel fees and settlement administration costs arising from the settlement of class actions related to defective air bag actuator components.

The court upheld the arbitration award requiring Tokio to indemnify Honda for class counsel fees under the umbrella liability policy, but not for settlement administration costs, which were found to be excluded as recall or product withdrawal expenses.

The court was asked to approve a settlement for a minor plaintiff, Allythiah Thomas, arising from a motor vehicle accident.

The proposed settlement allocated $50,000 to Allythiah's claim and included legal fees based on a 30% contingency fee.

The court declined to approve the settlement due to concerns regarding the lack of an up-to-date expert medical report confirming the plaintiff's maximum medical recovery and future prognosis.

Additionally, the court found the proposed 30% contingency fee inappropriate given the minimal disbursements incurred by counsel, suggesting a range of 10% to 15% would be more suitable.

The County of Simcoe appealed a trial judgment finding it 100% liable for catastrophic injuries sustained by Melinda Wasylyk in a motor vehicle accident caused by hazardous road conditions.

The County argued the trial judge erred in finding the road in disrepair, in her causation analysis, and in finding no contributory negligence.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the road was in disrepair due to ice and snow, that these conditions caused the accident, and that the plaintiff was not contributorily negligent, deferring to the trial judge's factual assessments.

The applicants, Toronto District School Board and Simcoe County District School Board, sought leave to appeal an arbitration decision that dismissed their claim for a share of a guarantee fund upon terminating their membership in the Ontario School Boards’ Insurance Exchange (OSBIE).

The court granted leave to appeal, determining that the interpretation of the standard form Reciprocal Insurance Exchange Agreement constituted a question of law, which is subject to correctness review and of precedential value, thus satisfying the criteria for granting leave under the Arbitration Act.

His Majesty the King in Right of Ontario appealed a decision denying a declaration that its general liability insurer, St. Paul Fire and Marine Insurance Company, had a duty to defend Ontario in a class action.

The Court of Appeal found that the application judge erred in interpreting the Second Policy's Personal Injury coverage, which did not include the "neither expected nor intended" limitation applicable to Bodily Injury.

However, the appeal was ultimately dismissed because the claim for coverage under the Second Policy was premature.

Ontario had not yet incurred the $5,000,000 "Ultimate Net Loss" self-insured retention, which included defence costs, required to trigger St. Paul's duty to defend.

The appellant insurer appealed a lower court's interpretation of a business interruption insurance policy's pandemic coverage limit.

The policy covered seven daycare locations, and the dispute centered on whether the $50,000 limit of liability for pandemic losses applied as a global total or per location.

The Court of Appeal, applying principles of insurance contract interpretation, found the clause unambiguous when read in the context of the policy as a whole, concluding that the limit applied on a per-location basis.

The appeal was dismissed, affirming the lower court's decision in favour of the insured.

The appellants appealed the dismissal of their negligence action on summary judgment motions brought by the respondents.

The plaintiff was assaulted after exiting a chartered bus at a plaza in Barrie, sustaining a serious head injury.

The respondents operated a bar with a transportation and security system designed to prevent violence.

The motions judge found the case suitable for summary judgment and held that the respondents met the applicable standard of care.

The Court of Appeal found that the motions judge failed to properly articulate and apply the standard of care, effectively treating the plaintiff's contributory negligence as a bar to the claim.

The court held that the respondents owed a duty not to place the plaintiff in a position where foreseeable injury could occur, and that a trial was necessary to properly assess the standard of care and causation.

The appellant insurer appealed an order requiring it to defend the respondents in an action arising from an ATV accident.

The insurer denied coverage on the basis that the ATV was not required to be insured as it was being operated on private property and did not fall under the definition of "automobile" in the OAP 1.

The Court of Appeal upheld the application judge's decision, finding that the pleadings alleged facts permitting a finding that the respondents were not occupiers of the property at the time of the accident, which was sufficient to trigger the insurer's duty to defend under the policy.

The defendants First Student Canada, David Ribble, 1853780 Ontario Inc. o/a Kee to Bala, and Ryan Zaroski sought summary judgment to dismiss the plaintiffs' claim for damages arising from an assault on Ryan Turcotte.

The assault occurred in a parking lot after Turcotte disembarked from a chartered bus service provided by the defendants.

The plaintiffs alleged negligence under the Occupiers’ Liability Act, Liquor Licence Act, and general negligence.

The court found no evidence that the defendants failed in their duty of care regarding premises safety, bus security, or intoxication monitoring.

The court also rejected allegations that the defendants should have diverted the bus, prevented Turcotte or the assailants from leaving, or provided more explicit warnings, concluding that Turcotte was aware of the potential danger.

The motion for summary judgment was granted, dismissing the action against the moving defendants.

Following a successful appeal overturning the dismissal of an action and awarding damages for false arrest and trespass, the court was tasked with determining trial costs payable by one defendant.

The successful plaintiffs sought full or substantial indemnity costs exceeding $400,000, arguing the litigation raised issues of public importance and that the defendant advanced meritless positions.

The defendant argued the claim was disproportionate to the modest damages award and that much of the trial addressed unsuccessful allegations including conspiracy and punitive damages.

Applying s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized proportionality, the conduct of the parties, and the reasonable expectations of the losing party.

Costs were awarded on a partial indemnity basis in a reduced amount reflecting the complexity and importance of the issues while accounting for excessive litigation steps.