Christopher Reain

The decision addresses whether coverage for Extra Expense and Professional Fees under insurance policies issued to two Ontario summer camps is subject to the $1,000,000 sublimit in the Infectious Disease Extension, following business interruption due to COVID-19.

The court finds that both Extra Expense and Professional Fees are subject to the $1,000,000 sublimit, rejecting the plaintiffs’ arguments for additional coverage.

The court also addresses principles of insurance contract interpretation and the onus of proof in such disputes.

This endorsement addresses the costs of a successful motion by the plaintiffs to add new defendants and amend their Statement of Claim.

The plaintiffs sought substantial indemnity costs, arguing the motion was unnecessarily complicated by the responding parties.

The court found the plaintiffs were entitled to costs but not on a substantial indemnity basis, as there was no reprehensible conduct by the opposing parties.

The court fixed the plaintiffs' costs at $25,000, inclusive of disbursements and HST, payable jointly and severally by the responding parties within 30 days, rejecting the suggestion to reserve costs to the trial judge.

The plaintiffs brought a motion to add a new corporate defendant and several individual defendants, and to amend their Statement of Claim to increase damages to $8,000,000 and assert claims of fraud.

The plaintiffs alleged that the original defendant transferred its business and assets to the new corporate defendant to defeat the plaintiffs' claims regarding environmental contamination advice.

The court granted the motion, finding that the plaintiffs moved with sufficient dispatch upon discovering the new corporation and that the allegations were more conveniently dealt with in the present action.

The respondent bank sought indemnity under an insurance policy for losses arising from a Ponzi scheme operated by a customer.

The bank obtained partial summary judgment on the interpretation of the "direct financial loss" element of the fidelity coverage section.

The appellants (insurers) appealed, arguing the motion judge erred in granting partial summary judgment on a constituent element of a claim rather than on the claim itself, failed to interpret the policy as a whole, adopted a theory of liability not advanced by the parties, and misconstrued the relief sought by the appellants.

The Court of Appeal allowed the appeal, set aside the order, and directed the action to proceed to trial.

The third parties, EMK, brought a motion for summary judgment to dismiss the defendants' third party claim for contribution and indemnity arising from a fire at a poultry processing plant.

EMK also sought a declaration that Belgian law governed the contract for the sale of a boiler to the defendants.

The court applied the closest and most substantial connection test and determined that Belgian law governed the contract.

However, the court dismissed the motion for summary judgment, finding that a fair and just determination of whether EMK had knowledge of the alleged defects under the Uniform Law on the International Sale of Goods could not be made prior to the trial of the main action, as it risked inconsistent findings of fact.

The third party brought a motion for summary judgment to dismiss the defendants' third party claim for contribution and indemnity as statute-barred under s. 18 of the Limitations Act, 2002.

In a previous motion in the same action, another third party successfully struck the defendants' third party claim on the basis that the two-year limitation period commenced upon service of the statement of claim, without regard to discoverability.

The court held that the defendants were precluded by the doctrine of issue estoppel from relitigating the limitation period issue.

The motion was granted and the third party claim was dismissed.

This is a costs endorsement following several motions in complex insurance litigation between TD Bank and its fidelity insurers, primarily concerning a successful partial summary judgment motion by TD Bank.

The court addressed the administrative issue of simplifying the style of cause and then considered the principles for awarding costs, emphasizing the "culture shift" towards efficient litigation.

The court confirmed costs in the cause for an earlier production motion and awarded TD Bank $330,000 in all-inclusive costs for the motion for directions and the partial summary judgment motion, to be paid jointly and severally by the defendant insurers, allocated pro rata to their policy exposure.

The respondent, Old Republic Insurance Company of Canada, brought a motion for leave to deliver an amended factum to withdraw an admission of liability coverage made in its original factum.

The applicant, Coast Capital Equipment Finance Ltd., opposed the motion, arguing prejudice.

The court granted the motion, finding that the interests of justice dictate deciding the underlying application on its merits, not on a solicitor's error, and that the prejudice to the applicant was not so great as to dismiss the motion, especially given prior costs awards.

An insurance broker appealed a summary judgment dismissing its action against an insurer for indemnification.

The broker had arranged insurance for a client's vehicle but failed to properly communicate the vehicle model to the insurer, resulting in a policy issued for the wrong vehicle.

When the client's vehicle was damaged in an accident, the insurer denied coverage.

The broker's errors and omissions insurer paid the client's claim, and the broker sought recovery from the insurer.

The motion judge granted summary judgment to the insurer.

The Court of Appeal found the motion judge's reasons insufficient for appellate review as they did not address the key contractual indemnification provisions.

The appeal was allowed and the matter was directed to trial.

The defendants, a consortium of insurers, brought a motion to clarify TD Bank's discovery obligations regarding documents subject to solicitor-client, litigation, and settlement/mediation privilege.

TD Bank was seeking indemnity under fidelity policies for amounts paid to settle 19 underlying lawsuits related to a Ponzi scheme.

The court ruled that TD Bank had not implicitly waived solicitor-client privilege through its pleadings.

It also found that litigation privilege for documents created for the underlying litigation was not lost upon settlement, given the close connection to the current coverage dispute.

However, the court determined that TD Bank could not assert settlement privilege over documents related to the underlying settlements, as these were crucial for the insurers to assess the reasonableness and allocation of damages for coverage purposes.

An insurance broker mistakenly arranged automobile insurance for a client's older vehicle instead of the newer replacement.

Following a collision involving the newer vehicle, the insurer voided the policy.

The broker's errors and omissions insurer indemnified the client and then brought a subrogated action against the original insurer, seeking recovery and a declaration of the insurer's duty to defend and indemnify.

The insurer successfully moved for summary judgment, with the court finding that the brokerage agreement provided a complete defence and that the insurer owed no duty of care to the broker to ascertain the insured's specific vehicle requirements.

The court also dismissed the claim for equitable recoupment, emphasizing the contractual terms and the role of the broker's errors and omissions insurance.

The plaintiff hospital sued the general contractor (Compass) and subcontractor (Black Creek) for water damage caused during a kitchen renovation.

Black Creek brought a motion under Rule 21 to determine whether Compass's cross-claim against it for contribution and indemnity was barred by the 'covenant to insure' in the general contract.

Black Creek argued the tort immunity principle barred the cross-claim for damage to the entire hospital.

Compass argued the immunity only applied to the 'work' (the kitchen project) and not the adjacent property (the rest of the hospital).

The court held that the covenant to insure and the builder's risk policy only covered the project site (the kitchen), not the entire hospital.

Therefore, Compass's cross-claim against Black Creek for damages outside the kitchen was not barred.

The defendant brought a motion to strike portions of a statement of claim as an abuse of process after an oppression application under the Ontario Business Corporations Act was converted into an action.

The moving party argued that the plaintiff improperly added allegations and prayers for relief against her that were not contained in the original notice of application and did so without leave of the court.

The court held that the conversion order authorized delivery of a statement of claim and imposed no requirement that it mirror the originating application.

The court found the moving party had long been aware of the nature of the claims against her and that no new cause of action was asserted.

The motion was dismissed and the plaintiff was awarded costs.