Eric A. Dolden

Oscar Furtado appealed a decision denying him Directors and Officers insurance coverage and relief from forfeiture.

The Ontario Securities Commission (OSC) initiated an investigation against Furtado's real estate development business, Go-To, during the policy period.

While a confidentiality order initially prevented disclosure to the insurer, the law changed in December 2019 to permit such disclosure.

Furtado was explicitly notified of this change in February 2021 but did not report the investigation to Lloyd's Underwriters until February/March 2022, after the OSC commenced formal proceedings.

The Court of Appeal upheld the application judge's finding that Furtado's failure to report the investigation once legally permitted constituted non-compliance with a condition precedent to coverage, rather than imperfect compliance.

Consequently, relief from forfeiture was unavailable, as granting it would extend coverage beyond the bargained-for terms of the claims-made and reported policy.

The appeal was dismissed.

The applicant sought relief from forfeiture for late notice of a claim under a Directors and Officers' Liability Policy, arguing imperfect compliance.

The respondent denied coverage, asserting non-compliance with a condition precedent.

The court found the applicant's delay in notifying the insurer, after the Securities Act amendment permitted disclosure, constituted a substantial breach and caused prejudice to the insurer in a claims-made policy.

Consequently, relief from forfeiture was not available, and the application was dismissed.

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 defendants Xytex Corporation, Xytex Cryo International Inc., Mary Hartley, and Dr. James Todd Spradlin brought a motion to dismiss the action based on res judicata, arguing that the plaintiffs' identical action in Georgia had already been dismissed on the merits.

The plaintiffs opposed, contending the Georgia decision was not on the merits due to a procedural dismissal of their appeal.

The court found that the Georgia Superior Court's dismissal was a decision on the merits, and the subsequent procedural dismissal of the appeal did not negate its finality.

Applying the principles of res judicata, the court dismissed the plaintiffs' action in Ontario, finding no genuine issue requiring a trial and no special circumstances to permit re-litigation.

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.