3 total
Duty to defend in commercial construction contract interpreted strictly against the drafting developer; partial defence costs awarded.
The applicant developer brought an application seeking a declaration that the respondent mechanical trade contractor was contractually required to defend and indemnify it in an underlying construction defect action regarding a condominium project.
The court distinguished the duty to defend in a commercial construction contract from that in an insurance policy, noting the indemnification clause was drafted by the developer and must be interpreted strictly against it (contra proferentem).
The court dismissed the application against the contractor's parent company but ordered the contracting subsidiary to pay 33.33% of the developer's reasonable legal fees in the underlying action, reflecting its limited obligation.
Builder’s risk policy covered corrosion damage despite faulty workmanship exclusion.
Contractors sought indemnity under a builder’s risk insurance policy for costs incurred repairing corroded aluminum window frames during construction of a Toronto building.
The corrosion resulted from exposure to de‑icing chemicals and trapped liquid caused by construction practices.
Insurers relied on policy exclusions for corrosion and faulty workmanship.
The court held the corrosion exclusion did not apply because the corrosion was caused by a peril not otherwise excluded, namely faulty workmanship, which the policy treated as covered resultant damage subject only to deduction of the cost that would have been incurred to rectify the workmanship before the loss occurred.
Coverage therefore applied, but the precise deduction for proper workmanship could not be determined on the record and required further process.
Successful defendant insurers awarded partial indemnity costs following dismissal of plaintiff's complex asbestos coverage motion.
Following a complex motion regarding insurance coverage for asbestos claims where the plaintiff was unsuccessful, the successful defendant insurers sought their costs.
The plaintiff argued for a reduction based on divided success on factual issues and refusal to admit facts.
The court rejected the plaintiff's arguments, finding the defendants were the clear winners and their refusal to admit facts was not unreasonable.
The court awarded partial indemnity costs to the defendants, making some reductions to specific bills for duplication of effort among multiple counsel, totaling approximately $546,887.
