Christopher R. Dunn

The court considered whether Aviva Insurance Company of Canada was required to defend or indemnify Udo Haan under a homeowner’s policy after Haan, found not criminally responsible for killing his wife and causing an explosion that damaged neighbouring homes, was sued by neighbours.

The court found that Haan’s actions were both intentional and criminal, triggering the policy’s exclusion clause.

As a result, Aviva had no duty to defend or indemnify Haan in the civil actions brought by his neighbours.

G.E.S. Construction Limited appealed the dismissal of its motion seeking a declaration that Lloyd’s Underwriters had a duty to defend and indemnify it under a 2015 insurance policy.

The Court of Appeal upheld the motion judge’s decision, finding no waiver or estoppel by Lloyd’s and no bad faith in its conduct.

The appeal was dismissed and costs were awarded to the respondent.

The appellants, Enhanced Care Pharmacy and 2819826 Ontario Inc., appealed an order directing them to cease pharmacy operations in a condominium building.

The respondents, World Medpharm Inc., held an exclusive right to operate a pharmacy in the building, granted by an Exclusive Use Agreement and enforced by a Declaration.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that the appellants were aware of the prohibition, the respondents had standing to enforce the declaration, and there was no basis to exercise discretion to relieve the appellants from compliance.

The court found no error in the application judge's rejection of arguments regarding the impact on the respondents' business or harm to patients.

The defendant, G.E.S. Construction Limited, brought a motion seeking a declaration that the third-party defendant, Lloyd’s Underwriters, had a duty to defend and indemnify G.E.S. in the action.

G.E.S. argued that Lloyd's attempt to void the insurance policy was ineffective due to waiver or estoppel.

The court dismissed the motion, finding that Lloyd's conduct did not demonstrate an unequivocal and conscious intention to waive its right to void the policy, nor was there evidence of detrimental reliance by the insured to establish estoppel.

The applicants, a consortium of insurers, sought a declaration that the respondent's (Sahara Restaurant) claim for water damage under a hospitality insurance policy was statute-barred due to the expiry of a one-year limitation period.

The respondent argued that the insurers' ongoing communications constituted promissory estoppel, extending the limitation period, and that its demand for an appraisal suspended the limitation period.

The court found that the insurers had explicitly warned the respondent of the limitation period and that normal dealings did not extend it.

Furthermore, the court held that a demand for appraisal does not suspend the limitation period, requiring an action to be commenced to preserve the claim.

Consequently, the respondent's claim was dismissed as statute-barred, and its application to compel appraisal was also dismissed.

The applicants, who operate a pharmacy in a condominium building with an exclusive use agreement, sought a compliance order against the respondents for operating a competing pharmacy in a neighbouring condominium building in violation of that building's declaration.

The court granted the compliance order, finding the respondents were in clear breach of the declaration and had attempted to circumvent it.

The court also granted an interlocutory injunction preventing the respondents from taking steps to amend the declaration pending the hearing of cross-applications for oppression remedies.

The condominium corporation was found to have taken reasonable steps to enforce the declaration and was awarded costs against the respondents.

The applicant insurer sought a declaration that it had no duty to defend or indemnify the respondent insured in a class action arising from a cyber attack and data breach.

The insurer relied on a Data Exclusion Endorsement in the commercial liability policy.

The court found that while the endorsement excluded coverage for personal injury claims arising from the distribution of data, it did not exclude coverage for bodily injury claims.

Because the underlying class action included allegations of bodily injury resulting from the insured's negligence in safeguarding data, the insurer owed a duty to defend and indemnify.

The application was dismissed.

The applicant developer sought declarations that its insurers, Aviva and Northbridge, owed a duty to defend and indemnify it in a class action.

The class action alleged the developer negligently misrepresented that condominium units would include a heating system and storage locker, which were not provided.

The insurers denied coverage on the basis that the developer's failure to provide the items was an intentional business decision, not an 'occurrence' or accident.

The court agreed with the insurers, finding that the negligent misrepresentation claims were entirely derivative of the intentional breach of contract.

The applications for coverage were dismissed.

The third party brought a motion to vary the court's reasons for judgment on a previous motion, seeking to remove adverse credibility findings made against him.

The third party argued he was taken by surprise by the credibility attack and had not attended the original motion to provide his explanation.

The court dismissed the motion to vary, finding that the credibility issue was squarely raised in the evidentiary record, specifically during the third party's Rule 39 examination where he was confronted with evidence of an undisclosed commission.

The court held that the findings were not an accidental slip or based on newly discovered facts under Rule 59.06.

The applicant pool manufacturer sought a declaration that the respondent dealer was required to defend it against third party claims pursuant to a hold harmless and indemnity provision in their dealership agreement.

The third party claims sought contribution and indemnity from the applicant for its own alleged negligence in overseeing a pool installation.

The court dismissed the application, finding that the indemnity provision only applied to claims arising out of the respondent's negligence, and did not require the respondent to defend the applicant against allegations of the applicant's own negligence under the Negligence Act.

The applicant insurer sought a declaration that the respondent insurer had a duty to defend their mutual insured in an underlying environmental contamination action.

The underlying action alleged that fuel oil migrated from the insured's property to a neighbouring property.

The respondent denied coverage based on an environmental liability exclusion clause.

The court found that the respondent had a duty to defend because the pleadings left open the possibility that the initial escape of contaminants was 'sudden and accidental', which would trigger an exception to the exclusion clause.

The court ordered the insurers to share the defence costs equally based on equitable principles.

The appellant commercial tenant suffered property damage from a flood and sued the respondent landlord for the uninsured balance of its loss.

The motion judge granted summary judgment dismissing the action, finding that the lease required the tenant to maintain all-risks insurance and barred claims against the landlord for property damage.

On appeal, the tenant argued summary judgment was inappropriate, the expired lease terms did not apply, and the landlord retained liability for failing to repair the premises.

The Court of Appeal dismissed the appeal, holding that summary judgment is appropriate for waiver of subrogation cases, the overholding tenant remained bound by the lease terms, and the lease shifted the risk of damage from an insured peril to the tenant regardless of the landlord's conduct.

The appellant appealed a summary judgment dismissing its action for damages arising from a jewelry theft after its alarm system allegedly failed.

The motion judge granted summary judgment based on an exculpatory clause in the commercial contract between the parties.

The Court of Appeal dismissed the appeal, finding no genuine issue requiring a trial, as there was no misrepresentation inducing the contract and the parties were bound by the ordinary commercial contract.

The appellant tenant sued the respondent landlord for negligence after a fire damaged its leased premises.

The motion judge granted summary judgment dismissing the claim, finding no evidence of the landlord's negligence and holding that expert evidence was required to prove causation.

On appeal, the appellant argued that common sense inferences and the landlord's spoliation of evidence (destroying a space heater) should suffice.

The Court of Appeal dismissed the appeal, agreeing that expert evidence was necessary given the technical nature of the building's electrical system, and noting that an adverse inference from spoliation cannot serve as positive proof of negligence.

The appellant hosted a golf tournament at the respondents' golf course.

A guest was injured in a golf cart accident and sued the respondents for negligent course design.

The respondents brought a third-party claim against the appellant for contractual indemnity based on a clause in the event contract.

The motion judge granted summary judgment to the respondents.

On appeal, the Court of Appeal reversed, holding that the indemnity clause did not clearly and unambiguously shift the risk of the respondents' own negligence to the appellant.

The appellant appealed a summary judgment dismissing its claims.

The underlying dispute involved a subrogated claim by the appellant's insurer against the respondents, who were contractors on a diamond mine project.

The Court of Appeal dismissed the appeal, finding that the contracts required the appellant to obtain insurance for the benefit of its contractors and included a waiver of subrogation.

Applying principles of contract interpretation, the court held that the appellant had waived liability for losses covered by the policy, thereby extinguishing the insurer's right of subrogation.

The appellant appealed a decision upholding a case management master's order that denied full documentary production prior to a motion to stay the action for arbitration.

The Divisional Court clarified the standard of review for orders of case management masters, holding that discretionary decisions and interlocutory matters of law not vital to the disposition of the lawsuit are subject to a standard of deference and should not be interfered with unless clearly wrong.

Finding that the master's decision on documentary production was not vital to the disposition of the lawsuit, the court dismissed the appeal.