Cameron L. Foster

An appeal concerning the vicarious liability of co-owners of a motor vehicle under the Highway Traffic Act and the scope of insurance coverage under the Insurance Act.

The appellant insurance company argued that where two co-owners jointly own a vehicle, only the co-owner who consented to a third party's possession of the vehicle should be vicariously liable for negligent operation by that third party.

The court rejected this argument, holding that if either co-owner consents to possession by a non-owner, both co-owners are vicariously liable under section 192(2) of the Highway Traffic Act.

The court also clarified that section 239(1) of the Insurance Act does not create liability but merely requires coverage of liabilities imposed by law.

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.

These supplementary reasons correct a previous decision regarding liability under s. 192 of the Highway Traffic Act.

The court, upon discovering a Court of Appeal decision (Mazur v. Elias et al.), clarified that co-owner consent is not required for liability to attach to both owners under the Act.

This correction amends paragraph 29 of the original reasons, affirming that liability attaches to co-owners regardless of consent flow.

The plaintiff and her insurer brought a motion for a determination of a question of law regarding whether the "personal" consent of a co-owner is required for a motor vehicle policy to provide insurance coverage for liability arising from the use of an insured automobile.

The court examined the interplay between section 239(1) of the Insurance Act and section 192(2) of the Highway Traffic Act, particularly in light of the 1990 amendment to the Insurance Act which removed the word "personally." The court determined that the personal consent of the co-owner was not required, as consent could flow through an intermediary, and the two statutory schemes operate independently.

The Co-operators General Insurance Company, successful in a prior application, sought substantial indemnity costs of $103,375.96 against Definity Insurance Company, an intervenor.

Definity argued for partial indemnity costs of $58,884.

The court declined to award substantial indemnity, citing Co-operators' own conduct, including late disclosure of key documents and a last-minute re-election to proceed by judge alone after initially seeking a jury trial, which unnecessarily lengthened the proceedings.

The court awarded $70,000 inclusive of costs, disbursements, and HST to Co-operators from Definity.

The applicants sought a declaration that the respondent insurer owed a duty to defend the applicant business owner in three underlying actions arising from a fire.

The fire allegedly started when the business owner used an insured truck to boost a forklift.

The respondent argued that boosting a forklift was not an ordinary use or operation of a motor vehicle.

The court applied the test for duty to defend and the test for use or operation of a motor vehicle, finding that using a truck to boost another vehicle is an ordinary and well-known activity to which motor vehicles are put.

The court declared that the respondent owed a duty to defend and ordered it to pay a one-half share of past and ongoing defence costs.

The respondents, facing multiple class actions related to the manufacture and distribution of opioids over a 20-year period, sought coverage for defence costs from their successive primary and excess liability insurers.

The application judge allowed the respondents to select a single primary insurer to fund the entire defence, permitted the exhaustion of self-insured retentions (SIRs) using payments from other insurers, granted relief from forfeiture for pre-tender defence costs, and required insurers to sign a Defence Reporting Agreement (DRA) to receive privileged defence information.

The Court of Appeal allowed the insurers' appeals in part, holding that defence costs must be allocated on a pro rata time-on-risk basis, that the insureds must exhaust each applicable SIR before an insurer's duty to defend is triggered, and that relief from forfeiture was unavailable for pre-tender costs.

The Court upheld the DRA requirement for insurers seeking to associate in the defence to mitigate reasonable apprehensions of conflict of interest.

The Applicants sought costs following a partial success in an application concerning insurance coverage, specifically the duty to defend and equitable allocation among insurers.

The court awarded full indemnity costs to the Applicants against AIG and Royal & Sun Alliance Insurance Company of Canada (RSA) for the duty to defend issue, finding the Applicants overwhelmingly successful on that point.

Costs related to the exhaustion of self-insured retentions (SIRs)/deductibles were deferred to a future trial of the issue, as neither party fully succeeded.

Zurich Insurance Company Ltd. was ordered to pay reduced costs due to its partial success on a specific "Single Retention Endorsement" interpretation.

Supplemental reasons issued to correct an error in the court's previous decision (2022 ONSC 12).

The court corrected paragraph 4 to clarify that Lloyds should not have been listed as a party challenging the forum of the action.

Vale Canada and its primary insurer, RSA, brought actions against numerous excess insurers for coverage of environmental remediation costs incurred primarily in Ontario.

Several foreign excess insurers brought motions challenging the jurisdiction of the Ontario court or seeking a stay based on forum non conveniens in favour of an action in New York.

The court found it had jurisdiction over all moving insurers except North River Insurance Company, concluding that the insurers were 'carrying on business' in Ontario by participating in a global insurance program for an Ontario-based company.

The court declined to stay the actions for forum non conveniens, finding Ontario to be the 'centre of gravity' for the dispute.

Claims by Vale Canada against two UK insurers were stayed pending arbitration.

The plaintiffs brought an action against multiple insurers for indemnity regarding environmental damage.

Several foreign defendants failed to deliver statements of defence within the required time limits, and one was noted in default.

The defendants sought an extension of time to defend or bring jurisdictional motions, arguing the court should wait for the outcome of a parallel proceeding commenced by one of the insurers in the United States.

The court refused to delay the Ontario proceeding, finding no prejudice to the defendants in requiring them to respond timely, and ordered the defendants to deliver their statements of defence or motion records by a specified deadline.