Andrew Lawrence Mercer

The court considered whether damage to Mr. Hood’s seasonal cabin was caused by an insured peril (windstorm) or by settling, which was excluded under the insurance policy.

After reviewing expert evidence and witness affidavits, the court found that a windstorm was the direct cause of the loss and that the exclusion for settling did not apply.

The court declared the loss covered under the policy.

The appellant appealed the dismissal of his challenge to his involuntary status and incapacity finding by the Consent and Capacity Board, arguing abuse of process due to alleged illegal detention and recertification after initial Board decisions in his favour.

The Court of Appeal dismissed the appeal, finding no abuse of process or res judicata, as new evidence of the appellant's deteriorating condition and previously unconsidered criteria justified the subsequent certification process.

The court emphasized the flexibility of the abuse of process concept in administrative proceedings and the importance of considering all circumstances, especially new and significant evidence, when determining capacity and involuntary status under the Mental Health Act.

The insured sought reimbursement of defence costs incurred in responding to Human Rights Tribunal proceedings, arguing that information disclosed in a policy renewal application constituted notice of a claim under a “claims made and reported” liability policy.

The court held that the disclosure merely referenced the retention of outside counsel and did not objectively communicate a claim or potential claim to the insurer within the policy period.

The insurer had no duty to inquire further upon receiving the renewal application, as the obligation to provide notice rested on the insured.

The late notice deprived the insurer of opportunities to investigate, control the defence, and attempt early resolution, constituting actual prejudice.

Relief from forfeiture under s. 129 of the Insurance Act was unavailable because timely notice is a condition precedent to coverage under claims-made-and-reported policies.

Following a successful application concerning the disposition of funds held in trust, the court addressed the costs payable to a responding party that had been unsuccessful on the merits but was entitled to costs under the terms of the earlier order.

The party sought costs on a substantial indemnity basis or alternatively on a partial indemnity basis, while the opposing party argued that only partial indemnity costs were appropriate and challenged the hourly rates claimed.

The court held that substantial indemnity costs were not justified but accepted the reasonableness of the partial indemnity hourly rates claimed.

However, the total amount sought was considered higher than the reasonable expectations of the party exposed to the costs award.

The court therefore fixed an all-inclusive costs award on a reduced partial indemnity basis.