Avi Sharabi

The plaintiff, a land developer, sought insurance coverage from the defendant insurer for five underlying actions alleging misrepresentation of lot sizes, leading to claims of reduced property size and loss of use.

The defendant moved for a declaration that the alleged smaller lot sizes did not constitute "property damage" under its Comprehensive General Liability policy, and thus it had no duty to defend.

The plaintiff cross-moved for an order that the defendant did have a duty to defend.

The court found that the underlying claims for "loss of use of tangible property that is not physically injured" could constitute "property damage" as defined in the policy, particularly given the purchasers' equitable interest in the land.

Consequently, the court dismissed the defendant's motion and granted the plaintiff's cross-motion, declaring that the defendant had a duty to defend.

The court also addressed the issue of counsel selection, stating that merely disputing the duty to defend or indemnify does not automatically create a conflict requiring the insurer to surrender control of counsel appointment.

The City of Markham applied for a declaration that Intact Insurance Company had a duty to defend the City in a main action arising from a slip and fall incident.

The City also sought an order allowing it to appoint its own counsel at Intact's expense due to a conflict of interest, and reimbursement for past legal expenses.

The court found that Intact had a duty to defend the City as an additional insured under VTA Construction Limited's policy, as the claims arose from VTA's operations.

A real conflict of interest was identified due to VTA's cross-claim attempting to shift liability to the City, thus entitling the City to independent counsel.

Intact was ordered to pay all defence costs, including past expenses, on a full indemnity basis, as it was impractical to apportion costs between covered and uncovered claims.