Eric J. Adams

The appellants, small and mid-size businesses, appealed a class action decision regarding business interruption insurance claims stemming from the COVID-19 pandemic.

They sought coverage for revenue losses, arguing that the presence of SARS-CoV-2 or civil authority orders constituted "physical loss or damage" to their property under their insurance policies.

The Court of Appeal upheld the trial judge's finding that neither the virus's presence nor the civil authority orders met the "physical loss or damage" criteria for business interruption coverage.

The appeal was dismissed, and costs were awarded to the respondents.

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

The applicant sought indemnification from the respondent insurer for defence costs incurred in a defamation lawsuit, arguing he was an insured under a Media Professionals Insurance Policy issued to his publisher.

The insurer denied coverage, asserting the applicant was not an independent contractor performing the publisher's professional business.

The court applied principles of contractual interpretation and found that the publishing agreement was a personal service contract and the applicant was an independent contractor engaged in the publisher's professional business.

The court ordered the insurer to pay the defence costs but dismissed the claim for punitive damages, finding no bad faith.

The defendant brought a motion seeking answers to undertakings and questions refused during the continued examination for discovery of the plaintiff's representative.

The dispute centered on the plaintiff's claim of lawyer-client and litigation privilege over a draft internal report (the ASD Report) prepared in December 2002.

The court found that the plaintiff failed to provide sufficient evidence to establish, on a balance of probabilities, that the report was prepared for the dominant purpose of litigation or for seeking legal advice.

The court ordered the plaintiff to answer the refused questions and produce the report.

The defendant, Chubb Insurance Company of Canada, brought a motion to transfer the action from the Central East Region (Newmarket) to the Toronto Region, pursuant to Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiffs, Smartcentres Management Inc. and North Park Shopping Centres Limited, opposed the motion.

The court granted the transfer, finding that the events, subject matter, and damages were primarily located in Toronto, and that Toronto was "significantly better" in the interests of justice after a holistic application of the factors outlined in Rule 13.1.02(2)(b).

The applicant, Wawanesa, withdrew its application for a declaration of coverage and duty to defend, leading to a costs dispute.

The respondent, Dominion, sought costs for work incurred.

The court, exercising its discretion under the Courts of Justice Act and Rule 57.01, found that costs should follow the event, as Wawanesa abandoned its application.

Despite Dominion's excessive costs claim, the court fixed costs at $10,000 plus HST and disbursements, deeming it a fair and reasonable amount for the unsuccessful applicant to pay.

At the opening of a scheduled 7-week trial, the defendant insurer brought a motion for an adjournment due to the plaintiff's late disclosure of physical evidence and additional documents.

The plaintiff had disclosed the existence of particles and other physical evidence relevant to the cause of the equipment failure just weeks before trial.

The court found that it would be unjust to force the defendant to proceed without an opportunity to obtain expert advice and conduct further discovery on the newly disclosed evidence.

The motion for an adjournment was granted.

The applicants, two municipalities, sought a declaration entitling them to appoint their own counsel and manage their defence in a main action at the expense of the respondent insurers.

The municipalities argued a clear conflict of interest existed because the insurers were also defending contractors (Miller and Langley) against whom the municipalities had alleged negligence and sought indemnification.

The court found an irremediable conflict of interest, as the insurers' pecuniary interests in limiting the contractors' liability directly conflicted with the municipalities' defence strategy.

The application was granted, allowing the municipalities to appoint independent counsel at the insurers' expense and be reimbursed for past defence costs, with reporting limited to settlement issues of covered claims.

Atomic Energy of Canada Ltd. (AECL) sought to amend its statement of claim in a long-running insurance indemnity action against Allianz Global Risks US Insurance Company (Allianz).

Allianz opposed the amendments, arguing they introduced new causes of action, were time-barred, lacked particulars, and caused prejudice due to inordinate delay and loss of evidence.

The court found that amendments related to causation theories advanced by Allianz's experts were not new causes of action, but the claim based on assignment of rights from MDS Nordion and Comstock was a new cause of action and time-barred.

The court granted leave to amend certain paragraphs, denied others, and required AECL to provide better particulars for the causation amendments to limit their scope to the theories advanced by Allianz's experts.

The plaintiff condominium corporation sued the developer and vendor for negligence and breach of warranty regarding HVAC system deficiencies.

The defendants and third parties moved for summary judgment, arguing the claim was statute-barred by the limitation period.

The court found a genuine issue requiring trial due to insufficient explanatory expert evidence regarding discoverability of the systemic defect versus localized leaks.

The motion for summary judgment was dismissed.

Following a summary judgment motion where the court found the plaintiff's claim for a duty to defend was time-barred, the court clarified that the claim for indemnification was premature and dismissed it without prejudice.

On the issue of costs, the court apportioned the defendant insurer's costs between the duty to defend and indemnification issues.

The court awarded the defendant $8,000 in costs for the duty to defend issue, payable within 60 days, and $5,000 for the deferred indemnification issue, payable in any event of the cause after the underlying actions are concluded.

The insured sought a declaration that his home insurer was required to defend and indemnify him in a personal injury action arising from a cycling accident with a pedestrian.

The insurer had denied coverage by letter and the insured commenced an action nearly three years later.

On cross-motions for summary judgment, the court considered whether the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The insured argued that an additional policy condition created ambiguity and delayed the limitation period until the underlying action was resolved.

The court rejected that interpretation, holding the condition applied only to indemnification claims and not to the duty to defend.

The action against the insurer was therefore commenced out of time.

A snow removal contractor brought a motion for summary judgment dismissing a personal injury slip-and-fall claim and related cross-claims.

The plaintiff filed no responding evidence and did not appear on the motion.

The court held that the absence of any admissible evidence regarding the fall, injuries, or sidewalk condition meant there was no genuine issue requiring a trial as against the contractor, and the claim against it was dismissed.

However, the municipality’s cross-claim for contribution and indemnity raised unresolved factual issues, including the interpretation of meteorological evidence and whether contractual snow-removal obligations were met.

Those issues required expert evidence and were determined to be genuine issues for trial.

Following a short civil trial in which the defendant obtained dismissal of the plaintiff’s claim, the court determined the appropriate costs award.

The parties had streamlined the trial through an agreed statement of facts and the legal issue was comparatively narrow.

The defendant sought approximately $30,000 in costs while the plaintiff argued that approximately $18,645 would be reasonable given proportionality and the amount claimed.

Applying the principles governing costs, including reasonable expectations and proportionality, the court fixed costs payable to the defendant at $20,000 inclusive of disbursements and taxes.

The plaintiff brought an action against the LCBO for damages in conversion after his credit card was used without authorization to purchase approximately $37,000 worth of alcohol for a nightclub.

The plaintiff failed to notify his credit card company of the unauthorized charges within the required 30-day period.

The court dismissed the action, finding that the LCBO did not commit the tort of conversion as it merely processed the orders and delivered the goods in the normal course of business without any wrongful act or intent to negate the plaintiff's title.

The court noted that had the action been framed in negligence, the plaintiff would have been found wholly responsible for his losses due to his failure to monitor his credit card statements.

Following earlier motion decisions involving crossclaims between defendants in an action arising from an oil spill at a residence, the successful defendant sought substantial indemnity costs exceeding $25,000.

The responding defendant argued for a significantly lower award.

The court rejected the request for substantial indemnity costs, finding no misconduct warranting a punitive award and emphasizing the governing principle of reasonable expectations of the unsuccessful party.

Although the moving party obtained partial summary judgment and a declaration regarding future defence costs, the success was only partial.

The court fixed costs at $12,000 inclusive.

The plaintiffs sued the defendants for property damage caused by an oil spill.

The defendant Bluewave brought a motion for partial summary judgment against the co-defendant Daniel Charles Transport for the costs of defending the action, arguing that Daniel Charles Transport breached a contractual obligation to obtain liability insurance naming Bluewave as an additional insured.

Daniel Charles Transport brought a motion to withdraw admissions and a cross-motion to dismiss Bluewave's crossclaim based on a Pierringer Agreement it had reached with the plaintiffs.

The court dismissed Daniel Charles Transport's motions, finding no justification to withdraw the admissions and that the Pierringer Agreement did not extinguish Bluewave's crossclaim for several liability.

The court granted Bluewave's motion for summary judgment, finding that Daniel Charles Transport breached its covenant to insure and that the pleaded allegations triggered a duty to defend.

Applying the principle of equitable contribution, the court ordered Daniel Charles Transport to pay 50% of Bluewave's past and future defence costs.

Following a 20‑day trial in which the plaintiffs obtained judgment exceeding $2.3 million against their insurance broker for failure to procure appropriate coverage, the court determined issues relating to the calculation of the judgment, costs, and interest.

The plaintiffs had delivered a Rule 49 offer to settle for $1.95 million plus interest and costs, which was less than the amount ultimately awarded at trial.

Applying Rule 49.10 of the Rules of Civil Procedure, the court held that the plaintiffs were entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

Considering proportionality, the conduct of the parties, the length of the trial, and duplication arising from a change of counsel, the court reduced the plaintiffs’ claimed costs and fixed total costs at $475,000 plus disbursements.

The applicants sought a determination of whether a lessee of a leased vehicle could access the lessor’s insurance coverage beyond the statutory $1 million cap under s. 267.12 of the Insurance Act following a motor vehicle accident.

They argued that a legislative gap existed between the 2006 amendments to the Insurance Act limiting lessor liability and the later approval of the OEF 110 endorsement restricting coverage for lessees, allowing lessees to access the lessor’s insurance as unnamed insureds during the interim.

The court rejected this argument, holding that s. 267.12 must be interpreted in light of the legislative purpose of protecting lessors and their insurers by capping exposure.

Interpreting the statute to permit lessees to access excess or umbrella policies would undermine the legislative scheme.

The court further held that the excess and umbrella policies at issue did not provide coverage to the lessee based on their wording and the fact that the lessor was not a named insured under the relevant policies.

The application was dismissed.

Homeowners sued their insurance broker alleging negligence and breach of contract after a burglary resulted in the theft of a safe containing jewellery and cash exceeding insurance policy limits.

The broker had placed policies that limited jewellery coverage to $10,000 without advising the plaintiffs of the limitation or recommending additional coverage.

The court held that an insurance broker who assumes responsibility for a client’s insurance program must review the client’s circumstances, identify coverage gaps, and advise on available insurance products.

The broker failed to meet the standard of care by not conducting a proper review, failing to warn of jewellery coverage limits, and failing to recommend scheduling valuable items.

The court found that the plaintiffs would have obtained adequate coverage if properly advised and rejected arguments of contributory negligence.

Damages were assessed based on the coverage that likely would have been obtained, subject to deductions for premiums and amounts already paid.