Clarence Lui

His Majesty the King in Right of Ontario appealed a decision denying a declaration that its general liability insurer, St. Paul Fire and Marine Insurance Company, had a duty to defend Ontario in a class action.

The Court of Appeal found that the application judge erred in interpreting the Second Policy's Personal Injury coverage, which did not include the "neither expected nor intended" limitation applicable to Bodily Injury.

However, the appeal was ultimately dismissed because the claim for coverage under the Second Policy was premature.

Ontario had not yet incurred the $5,000,000 "Ultimate Net Loss" self-insured retention, which included defence costs, required to trigger St. Paul's duty to defend.

The applicants commenced an application seeking declarations for insurance coverage and damages following a fire that destroyed their home.

The respondent insurer, who had denied the claim and voided the policy for alleged misrepresentation, brought a motion to convert the application into an action.

The court granted the motion, finding that the proceeding involved multiple issues requiring a trial, including material facts in dispute, credibility issues, and a negligence claim against the insurance broker that could not be bifurcated without consent.

The applicant, Ontario, sought a declaration that its insurer, St. Paul, owed a duty to defend it in an underlying class action regarding bail system delays.

Ontario argued St. Paul was estopped from denying coverage due to its delay in communicating its position.

The court found no estoppel, as Ontario controlled its own defence and suffered no prejudice.

On the coverage issue, the court held the true nature of the underlying claims involved harms that were expected from Ontario's policy choices, which fell outside the policy's definition of an 'occurrence' or 'accident'.

The application was dismissed.

Following a split decision on motions, the defendant sought $1,500 in costs for responding to relief the plaintiffs abandoned during submissions.

The plaintiffs argued for no costs, citing financial hardship.

The court ordered the plaintiffs to pay $500 in costs for the abandoned claims, but deferred payment until the final disposition of the action to avoid creating a barrier to the proceedings.

The plaintiff, Quality Truck Bodyshop Inc., sought summary judgment against Acear Inc. and Scottish & York Insurance Co. Limited for over $300,000 in towing, tear down, and storage fees for a stolen and recovered commercial truck.

The defendants opposed, arguing that granting partial summary judgment would lead to increased costs, delays, and potential inconsistent findings, citing the three-part test from Malik v. Attia.

The court dismissed the motion for summary judgment, agreeing that it was not appropriate given the related ongoing actions and the risk of duplication or inconsistent findings.

M.S. Hardwood brought a motion for substantial indemnity costs against Gaydon Contractors Ltd. following Gaydon's discontinuance of a Fourth Party Claim.

Gaydon had issued the Fourth Party Claim against M.S. Hardwood based on a cursory mention of flooring deficiencies in the Plaintiff's Statement of Claim, despite earlier discoveries indicating no such issues.

Gaydon also brought a cross-motion seeking to recover these costs from the Plaintiff and Defendants.

The court granted M.S. Hardwood's motion, finding Gaydon failed to conduct due diligence and that its claim was frivolous and vexatious.

Gaydon's cross-motion was dismissed, with the court noting minimal culpability for the Plaintiff and none for the Defendants.

The court also commented on the disproportionate costs incurred by all parties in arguing these motions.

The court addressed a motion by Aviva Insurance Company of Canada regarding the sufficiency of answers to undertakings, under advisements, and refusals during discovery in an action alleging fraud against Tracey Brown.

Brown counterclaimed for defamation and intentional infliction of mental suffering.

The court applied principles of proportionality and relevance, ordering Aviva to provide further answers and its deponent to re-attend discovery, while refusing some questions deemed vague or seeking legal opinions.

Case management directions for an upcoming pre-trial were also issued.

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 appellant sought damages of approximately $1 million for losses sustained when a drainage pipe running underneath a floor installed by the respondent caused a flood in its warehouse.

The trial judge dismissed the negligence claim, finding that although the respondent damaged the drainage pipe by puncturing it with a stake used to brace concrete forms, the respondent nevertheless met the standard of care.

The appellant appealed, arguing the trial judge failed to consider contractual duties, erred in foreseeability analysis, and erred in not determining whether industry practice was itself negligent.

The Court of Appeal upheld the trial judge's decision, finding no error in the application of the standard of care, foreseeability analysis, or treatment of industry practice.

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 plaintiff, Mabe Canada Inc., sued the defendant, United Floor Ltd., in negligence for approximately $1 million in damages caused by a flood in its warehouse.

The flood resulted from a damaged drainage pipe located beneath the concrete floor, which the plaintiff alleged was punctured by the defendant's stakes during floor installation in 2004.

The court found that the pipe was indeed damaged by the defendant's stakes.

However, the court concluded that the defendant met the applicable standard of care, as the general contractor (First Gulf) failed to adequately inform United Floor of the shallow and unusual location of the pipes, and industry practice did not require the defendant to proactively locate such unexpectedly shallow pipes.

Consequently, the plaintiff failed to prove negligence, and no damages were awarded.

The subcontractor defendant moved for summary judgment dismissing a negligence action arising from the collapse of a partially constructed riding arena.

The subcontractor argued it was an unnamed insured under the owner’s builder’s risk policy and that the policy’s waiver of subrogation barred the insurer’s subrogated claim.

The court held that the evidentiary record was insufficient to determine whether the subcontractor was an unnamed insured and whether the contractual matrix supported a waiver of subrogation.

The absence of evidence regarding contractual risk allocation and the defendants’ own insurance policies created genuine issues requiring a trial.

The motion for summary judgment was dismissed and the claim was permitted to proceed.

The plaintiff purchased a restaurant business and condominium unit.

After closing, she discovered an outstanding municipal work order against the property.

She settled her claim with the title insurer but sued her real estate solicitor for professional negligence, alleging he failed to conduct necessary searches.

The solicitor third-partied the title insurer, claiming a duty to defend and indemnify under an agreement with the Law Society.

The Superior Court of Justice dismissed the plaintiff's action, finding no negligence as the purchasers had insisted on a short closing and waived searches, and the plaintiff failed to prove any damages.

The court granted the third-party claim, holding that the title insurer had a duty to pay the solicitor's defence costs because the true nature of the plaintiff's claim fell within the scope of the title insurance policy.

A motion was brought to determine whether an insurer or the Motor Vehicle Accident Claims Fund was required to respond to a pedestrian’s tort claim arising from a bus accident where the vehicle was not listed under the insured’s policy at the time of the accident.

Although the insurer had paid statutory accident benefits under the priority rules in O. Reg. 283/95, the issue was whether that payment rendered the claimant an insured entitled to uninsured motorist coverage under the Insurance Act.

The court held that the insurer’s obligation to pay accident benefits arose solely from the statutory priority scheme and not from an existing policy covering the accident.

Entitlement to accident benefits alone did not create insured status for uninsured motorist coverage.

The plaintiff was therefore not entitled to uninsured motorist coverage from the insurer.