Dylan Jeffrey Cox

Panasonic Canada Inc. brought an application for a declaration that its insurance claim with XL Specialty Insurance Company was subject to a $1.5 million USD retention and sought coverage for replacement laptops purchased as reasonable mitigation following a cyber-attack.

XL contended that a $3 million USD retention applied because the claim involved a "ransomware event" under Endorsement 23 of the policy.

The court found that Panasonic's claim attracted the lower $1.5 million USD retention, that the laptop purchases were reasonable and necessary mitigation expenses, and that the property damage exclusion did not apply.

The court granted Panasonic's application, save for six laptops that were not shown to be necessary.

This appeal addressed whether relief from forfeiture is available to an insured under a professional liability insurance policy when the claim was not reported to the insurer during the policy period.

The Court of Appeal affirmed the application judge's finding that the policy was a "claims made and reported" policy, meaning that reporting the claim within the policy period was a condition precedent to coverage.

As coverage was not triggered due to the late reporting, relief from forfeiture was not available.

The court clarified that the principle from *Stuart v. Hutchins* remains undisturbed by *Kozel v. Personal Insurance Co.*, maintaining the distinction between non-compliance with a condition precedent and imperfect compliance.

The appellant insurer appealed a decision that found it had a duty to pay defence costs for the respondents in underlying lawsuits.

The insurer had denied coverage based on alleged material misrepresentation in the insurance application regarding the source of financing for the respondents' real estate development companies.

The Court of Appeal found that the failure to disclose syndicated mortgages as the financing source constituted a material misrepresentation by omission, triggering an exclusion clause in the D&O insurance policies.

The appeal was allowed, and the insurer was declared to have no duty to pay defence costs and was entitled to recover previously advanced funds.

The plaintiffs brought a motion to the Superior Court of Justice for the appointment of an umpire to resolve a dispute with Intact Insurance Company regarding the cost of replacing their collapsed rural home and Quonset hut.

The appraisers appointed by each party could not agree on a joint umpire.

The court considered the criteria for umpire selection under the Insurance Act, emphasizing impartiality and breadth of experience over local residence or travel costs.

The court appointed the plaintiffs' nominee, Glenn Gibson, due to his extensive experience as an umpire for both insureds and insurers, and awarded costs to the plaintiffs.

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 a declaration that the respondent insurer had a duty to defend them in an underlying action alleging misappropriation of funds from syndicated mortgages.

The insurer had denied coverage, arguing the applicants made a material misrepresentation in their insurance application regarding their source of financing.

The court found that the email relied upon by the insurer lacked detail and precision, and the insurer failed to clarify the ambiguous answers.

The court concluded there was no misrepresentation and ordered the insurer to resume defending the applicants and pay their incurred defence costs on a full indemnity basis.

The moving parties, Hyundai Motor Company and Hyundai Auto Canada Corp., sought leave to appeal the order of Barnes J. dated June 10, 2022.

The Divisional Court dismissed the motions for leave to appeal.

Costs of $4,000 were awarded against each moving party, payable to the respondent within 30 days.

This grouped appeal concerned four applications seeking declarations that the appellant insurers had a duty to defend the respondent corporations against claims of property damage arising from condominium construction deficiencies.

The application judge found a duty to defend based on the "mere possibility" test and refused ex ante allocation of defence costs.

The Court of Appeal dismissed the insurers' appeal, affirming the application judge's findings that the "mere possibility" test applies to exclusions and that courts should not conduct a "trial within a trial" on duty to defend applications.

The court also upheld the order for pre-notification defence costs and dismissed a cross-appeal regarding the assessment of past defence costs.

The Applicants sought costs following a partial success in an application concerning insurance coverage, specifically the duty to defend and equitable allocation among insurers.

The court awarded full indemnity costs to the Applicants against AIG and Royal & Sun Alliance Insurance Company of Canada (RSA) for the duty to defend issue, finding the Applicants overwhelmingly successful on that point.

Costs related to the exhaustion of self-insured retentions (SIRs)/deductibles were deferred to a future trial of the issue, as neither party fully succeeded.

Zurich Insurance Company Ltd. was ordered to pay reduced costs due to its partial success on a specific "Single Retention Endorsement" interpretation.

Following a successful motion for summary judgment, the plaintiff sought full indemnity costs of $41,852.77.

The court found that the contract between the parties entitled the plaintiff to full indemnity for losses, including legal fees.

The court also noted it would have awarded full indemnity regardless, due to the defendant's high-handed and dishonest conduct in appropriating funds.

The defendant was ordered to pay the full amount sought.

The applicants, Distillery Parties and Rite-Air, sought declarations that their insurers, Temple Insurance Company and Aviva Insurance Company of Canada, had a duty to defend them under a Specific Project Wrap-Up Liability Insurance Policy.

The insurers denied the duty to defend, arguing that the alleged property damage was below the policy's $10,000 deductible, and thus no coverage was triggered.

The court held that the duty to defend is triggered by the mere possibility of a covered claim, regardless of whether the alleged damages exceed the deductible.

The court also rejected the insurers' request for an ex ante allocation of defence costs, stating that such allocation is premature and must be determined ex post facto based on actual legal expenses for exclusively uncovered claims.

The plaintiff corporation brought an action for the tort of conversion against the defendant, who received millions of dollars in Apple products purchased fraudulently by the plaintiff's employee using corporate funds.

The defendant did not attend the trial.

The court found the defendant liable for conversion, as he received, transferred, and sold the products without the plaintiff's permission, thereby negating the plaintiff's possessory interest.

The court awarded damages of over $2.7 million, plus prejudgment interest and costs, and extended a Mareva injunction against the defendant.