Dominic T. Clarke

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 declarations concerning insurers’ duty to defend multiple opioid class actions, the insureds’ right to select a single defending policy, allocation of defence costs, exhaustion of SIRs and deductibles, and the terms on which insurers could receive defence-side reporting.

The court held that, subject to exhaustion of the relevant SIRs or deductibles, each applicant could select any single policy under which there was a duty to defend, and the selected insurer was required to pay all reasonable defence costs associated with covered claims even if those costs also furthered uncovered claims.

Time-on-risk allocation was accepted only as an equitable mechanism among insurers with concurrent obligations, not as a basis to reduce contractual defence obligations owed to the insureds.

The court further held that pre-tender defence costs could attract relief from forfeiture, that disputed SIR exhaustion issues required a trial, and that insurers seeking privileged defence-side reporting had to maintain robust ethical screens through a defence reporting agreement because both party-based and coverage-based conflicts were present.

The defendant insurers brought a motion for further and better affidavits of documents from the plaintiff insureds in a coverage dispute under a builders' risk insurance policy.

The dispute arose from a 15-month delay in completing a light rail transit project, which the plaintiffs attributed to a sinkhole event.

The defendants sought production of subcontractor change orders, native schedules, and delay-related correspondence to explore other potential causes of the delay.

The court dismissed the request for change orders and schedules as premature and insufficiently substantiated, but granted the request for certain delay-related correspondence to assist in identifying other subcontractors who may have caused delays.

The representative plaintiffs moved for approval of a $2.375 million settlement in a class action concerning the under-dosing of chemotherapy drugs at several hospitals.

The defendants, who supplied and administered the drugs, denied liability, arguing there was no evidence of clinical impact on patient outcomes and that the plaintiffs' psychological harm did not meet the legal threshold for a recognizable psychiatric illness.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class given the significant litigation risks, the lack of evidence showing clinical harm, and the recommendations of experienced class counsel.

The court also approved class counsel's requested fees of $400,000.

The appellant appealed an order dismissing its motion to stay the action on the grounds of forum non conveniens.

The Court of Appeal found no error in principle in the motions judge's conclusion that Ontario was the proper forum, noting that Ontario law was likely the proper law of the insurance contract and that key witnesses were located in Ontario.

The appeal was dismissed with costs.

The appellants were injured when a youth, who had left a residential treatment home operated by the respondent without permission, crashed a stolen car into their house.

Over three years later, the appellants moved to add the respondent as a defendant, alleging negligent supervision.

The motions judge dismissed the motion, finding the respondent was protected by the six-month limitation period under the Public Authorities Protection Act and refusing to exercise discretion to add the party due to presumed prejudice.

The Court of Appeal dismissed the appeal, confirming the respondent was acting as a public authority fulfilling a public duty, and the appellants failed to rebut the presumption of prejudice caused by the delay.