Anthony J. Bedard

The insured property owner appealed the dismissal of its claim for coverage following a wall collapse, while the insurer appealed the finding of coverage for a subsequent arson fire at the same vacant building.

The Court of Appeal dismissed both appeals.

The wall collapse was not proven to be a fortuitous event.

For the fire loss, the insurer was bound by promissory estoppel preventing reliance on a vacancy exclusion, and its unilateral attempt to amend the policy to exclude arson was invalid under s. 124 of the Insurance Act for lack of written consent.

The Court of Appeal for Ontario allowed an appeal, reversing a Divisional Court decision that had quashed an umpire's assessment of actual cash value (ACV) for a fire-damaged business premises under section 128 of the Insurance Act.

The Court found that the Divisional Court erred by giving undue weight to market value and by failing to defer to the umpire's reasonable assessment.

It clarified that "actual value" means the value to the insured, which can exceed market value, and that repair estimates are relevant to ACV.

The umpire's pragmatic approach in choosing between parties' proposed ACV amounts was upheld as non-arbitrary, reinforcing the deferential standard of review for such appraisals.

This endorsement addresses two motions for leave to appeal before the Divisional Court.

The Plaintiffs' motion for leave to appeal a "set aside" order was dismissed with costs awarded to the Defendants.

Concurrently, the Defendants' motion for leave to appeal earlier certification decisions was dismissed without costs, having become moot.

The plaintiffs brought motions to certify three proposed class actions against Aviva Insurance for the blanket denial of coverage for COVID-19-related business loss claims.

The claims focused on 'restricted access' and 'negative publicity' coverage provisions in Aviva's standard-form policies.

The court found that the requirements for certification under the Class Proceedings Act were met, noting the commonality of the standard-form policies and the identical denial letters.

The two Lerners Actions were certified, and the Nordik Action was conditionally certified pending a motion regarding the representative plaintiff.

The plaintiff, Champion Products Corp., sought partial summary judgment for replacement costs under a multi-peril insurance policy following a significant fire.

The parties had entered into two settlement agreements, the first establishing a 24-month deadline for replacement and the second modifying terms for a specific property in Scarborough.

Champion failed to complete the Scarborough transaction and subsequently sought to substitute a Pickering property.

The defendant insurer, Intact, argued that Champion had forfeited its right to recoverable depreciation due to missed deadlines.

The court found that Intact had waived its right to claim forfeiture through its conduct, which included assessing the substitute Pickering property over an extended period.

Champion was awarded $3,000,000 for replacement costs, representing the amount agreed upon in the second settlement, and its request for a further appraisal to determine a higher amount was dismissed.

The defendant insurer brought a motion seeking dismissal of two related actions for failure to comply with a prior court order requiring the plaintiffs to serve an expert report within 60 days and pay $40,000 in costs thrown away after a last-minute trial adjournment.

Despite the peremptory order, the plaintiffs neither retained an expert nor paid the ordered costs.

The court emphasized that parties must comply with court orders to preserve the integrity of the administration of justice.

While dismissal was available under Rule 60.12 of the Rules of Civil Procedure, the court granted a final “last chance” order permitting the plaintiffs 30 days to comply with the earlier order.

Additional costs of $3,500 were awarded to the defendant.

The plaintiffs' income property was destroyed by fire.

They sought a declaration that they were entitled to the full replacement cost under their insurance policy with the defendant to build an 8.5-storey condominium development.

The defendant argued the proposed development was not of 'like kind and quality' to the original structures.

The court held that the policy required replacement with property of like kind and quality to minimize moral hazard.

The court concluded the proposed condominium development was significantly different in size, utility, and design from the original property and did not meet the definition of replacement under the policy.

The motion was dismissed.

The defendant brought a motion to set aside service of a statement of claim and stay an Ontario action alleging a historical sexual assault that occurred decades earlier in Ontario.

The plaintiff resided in the Middle East and had not lived in Canada for approximately 30 years, while the defendant had resided in Manitoba since the early 1970s and had serious health issues.

Applying the real and substantial connection test and forum non conveniens principles, the court held that the connection between the claim and Ontario was insignificant and that the presence of plaintiff’s counsel in Ontario did not establish jurisdiction.

The court further determined that Manitoba was the more appropriate forum, given the defendant’s residence and health circumstances.

Service was set aside and the proceeding was stayed.