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 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.