Avi Cole

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.

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 moving parties sought to strike two expert reports and their references from the appeal book and compendium (ABCO) and the responding party's factum, arguing they were not evidence at trial.

The court, citing precedent, found that while the reports were not formally entered as exhibits, they were provided to the trial judge as aides memoire and should have been marked as lettered exhibits, thus forming part of the appeal record.

The motion was allowed in part, directing the responding party to amend the descriptions of the reports in the ABCO and factum to clearly state their non-evidentiary status.

The defendant, Robert G. Green Equipment Sales Ltd. (Green Equipment), brought a motion for summary judgment to dismiss the plaintiff's claim and a co-defendant's crossclaim.

The action arose from a fire that damaged an excavator, with the plaintiff alleging negligence, breach of contract/warranty, and negligent misrepresentation against both defendants.

The court found that there were genuine issues requiring a trial, including whether Green Equipment was a "seller" under the Sale of Goods Act, the extent of reliance for negligent misrepresentation, and the responsibility for servicing the excavator.

Given the disputed facts and credibility issues, the court determined that summary judgment was not appropriate and dismissed the motion.

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 applicant, Ontario, sought a declaration that its insurer, St. Paul, owed a duty to defend it in an underlying class action regarding bail system delays.

Ontario argued St. Paul was estopped from denying coverage due to its delay in communicating its position.

The court found no estoppel, as Ontario controlled its own defence and suffered no prejudice.

On the coverage issue, the court held the true nature of the underlying claims involved harms that were expected from Ontario's policy choices, which fell outside the policy's definition of an 'occurrence' or 'accident'.

The application was dismissed.

The defendant fuel oil distributor was sued after a fuel oil tank it sold leaked, causing property damage.

The defendant brought a third-party action against its insurers seeking a declaration of a duty to defend.

One insurer argued the claim was barred by a one-year contractual limitation period incorporated from statutory fire conditions.

The court held that the fire statutory conditions could not be applied to third-party liability coverage without anomalous consequences, meaning the general two-year statutory limitation period applied and the claim was not barred.

The court found the first insurer had a duty to defend as there was a mere possibility the damage occurred during its policy period.

However, the court dismissed the claims against the other insurers, finding that pollution exclusions and specific policy definitions precluded coverage.

In a personal injury action, the defendants inadvertently disclosed a litigation‑privileged witness statement to the plaintiff’s counsel during documentary discovery.

Despite the document being listed in Schedule B of the affidavit of documents as privileged, plaintiff’s counsel reviewed and relied upon it during discovery and in litigation materials, and refused to return it for an extended period after the error was identified.

The court applied the framework from Celanese Canada Inc. v. Murray Demolition Corp. to determine whether counsel should be removed following the breach of privilege.

The court held that the privileged nature of the document remained intact, prejudice was presumed and not rebutted, and the plaintiff’s counsel’s conduct in reviewing and using the document aggravated the breach.

The plaintiff’s motion for leave to seek production of witness statement summaries after setting the matter down for trial was denied, and the plaintiff’s law firm was removed as counsel of record.

A defendant electrical contractor brought a motion for summary judgment seeking dismissal of the action and a cross-claim arising from an accident allegedly caused by non-functioning streetlights on a boundary bridge between two municipalities.

The responding municipality argued the contractor should remain in the action pending trial because the municipalities’ respective jurisdiction over the streetlights might still be determined.

The court held that both the municipality and the contractor mutually understood under their Streetlighting Services Agreement that the bridge streetlights were outside the municipality’s jurisdiction.

Because the cross-claim was contractual and there was no possible breach under the agreement as interpreted by the parties’ mutual intention, there was no viable claim against the contractor.

Summary judgment dismissing the action and cross‑claim against the contractor was granted.