Heather Gray

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.

This appeal addressed whether two insurers, AIG and Lloyd's, had a duty to defend a mutual policyholder (the City of Timmins) in a progressive property damage claim.

The key issues were the role of "premature" evidence in duty to defend analysis, the interpretation of an "Expected or Intended Injury" exclusion clause, and whether a "crystallizing event" (an AMEC Report) triggered this exclusion.

The Court of Appeal upheld the application judge's decision, finding that the AMEC Report was "premature" evidence and not a "crystallizing event" that would negate Lloyd's duty to defend.

The court affirmed that the underlying claim was based on negligence, not intentional conduct, and therefore the exclusion clause did not apply, triggering Lloyd's duty to defend.

The plaintiffs brought a motion for leave to maintain their action under the Business Names Act after it was automatically stayed due to their failure to register their business name.

They also sought to deliver a reply to the defendant's amended statement of defence.

The court granted leave to maintain the action, as the defendant did not oppose it.

However, the court restricted the proposed reply, finding that many paragraphs improperly raised new issues or responded to unamended portions of the defence.

The defendant was awarded costs for its prior motion to amend, costs thrown away due to the trial adjournment, and costs of the current motion.

AIG Insurance Company of Canada brought an application seeking equitable contribution from Lloyd's Underwriters towards the cost of defending the City of Timmins in an underlying property damage action.

AIG and Lloyd's provided consecutive liability insurance policies to the City.

Lloyd's denied coverage, arguing the damage was not an 'occurrence' or fell under the 'expected or intended' exclusion due to a preliminary engineering report received by the City.

The court found the engineering report was not definitive enough to crystallize the loss or make the ongoing damage expected or intended.

The court held that the underlying claim raised a mere possibility of coverage, triggering Lloyd's duty to defend, and ordered Lloyd's to pay 50% of the defense costs.

The applicant excess insurers sought a declaration that claims against a lawyer and his firm for negligent tax advice did not constitute a 'single claim' or 'related claims' under the respondent primary insurer's professional liability policy.

The lawyer had advised multiple clients to participate in a charitable donation tax shelter that the Canada Revenue Agency later disallowed as a sham.

While the claims shared common elements regarding the donation plan, one client also claimed negligence regarding a separate life and disability plan.

The court applied the test from Simpson Wigle and found that the advice regarding the life and disability plan was a distinct error, different in nature and kind from the donation plan error.

Consequently, the claims were not related, and the respondent's $2 million aggregate policy limit was available.

The appellant insurer appealed a motion judge's decision that it had a duty to defend the respondents under a professional liability insurance policy.

The respondents, an appraiser and his company, were sued for vicarious liability arising from the alleged negligence of another appraiser (Barkley).

The respondents sought coverage under their own insurance contract (Van Huizen contract).

The Court of Appeal found that the motion judge erred by conflating a master policy with individual insurance contracts.

The court clarified that the master policy merely sets out terms, while individual certificates evidence separate contracts.

The Van Huizen insurance contract only covered the professional negligence of the named insured (Van Huizen), not vicarious liability for another appraiser's actions.

Therefore, the appellant had no duty to defend under the Van Huizen contract.

However, the court declined to grant summary judgment to the appellant, noting that the question of coverage under the other appraiser's (Barkley's) insurance contract remained a live issue to be determined.

The defendant insurer, Trisura, brought a motion for summary judgment seeking a declaration that it had no duty to defend the plaintiff, John Van Huizen, a real estate appraiser, in three underlying lawsuits.

These lawsuits arose from a negligent appraisal prepared by David Barkley, an alleged employee or agent of Van Huizen's business, Hastings Appraisal Services.

Van Huizen, also an insured under the same professional liability policy, sought a declaration that Trisura did have a duty to defend him.

The court found that the insurance policy provided coverage for Van Huizen's vicarious liability as an employer, interpreting the "Wrongful Act" definition consistently with the "Claim" and "Insured" definitions.

The court dismissed Trisura's motion and granted partial summary judgment to Van Huizen, affirming Trisura's duty to defend.

The appellant challenged the application judge's finding that the respondent's insurance policy was excess to the appellant's policy.

The appellant argued the application judge erroneously applied the Minnesota approach to determine policy priority.

The Court of Appeal found no error, as the application judge properly interpreted the policy terms to determine that the respondent's policy was specifically made excess to the appellant's.

The appeal and cross-appeal were dismissed.

Fresh evidence indicated the underlying claim had been settled within the appellant's policy limits, rendering the cross-appeal issues moot.

The plaintiff exporter claimed under an accounts receivable insurance policy issued by the defendant for unpaid shipments and demurrage charges.

The defendant indemnified the plaintiff for completely unpaid shipments but denied coverage for partially paid and unreleased shipments, relying on an exclusion clause for changed payment terms and a dispute clause.

On cross-motions for summary judgment, the court found the exclusion clause did not apply as there was no agreement to change payment terms.

However, the court held the dispute clause applied because there were tenable disputes between the plaintiff and the buyer regarding the partially paid and unreleased shipments.

The court also found the defendant was not estopped from relying on the dispute clause and that the policy explicitly excluded demurrage.

The plaintiff's action was dismissed.

The applicant insurer brought an application to determine priority of coverage under s. 277(1.1) of the Insurance Act following a rental car accident.

The driver, acting in the course of her employment, rented the vehicle using a corporate credit card.

The court found that the employer, not the employee, was the lessee of the vehicle, and therefore the employer's non-owned automobile liability policy with the respondent was first in priority to respond to the claim.

The court also dismissed the respondent's limitation period defence, finding the claim was not discoverable until the driver was served with the underlying action.

The applicant insurer (LawPRO) sought a declaration that the respondent insurer (Lloyd's) was obliged to contribute to the costs of defending their common insured.

The respondent argued the application was untimely under the Limitations Act and that its policy was excess, not primary.

The court found Lloyd's policy to be in an excess position and that the case was not analogous to situations where equitable contribution applies between primary and excess insurers (e.g., Broadhurst).

The application was dismissed as premature, though the court also ruled that the claim was not statute-barred under the Limitations Act, as the claim had not yet been "discovered" given the ongoing litigation against the insured.

The defendants, DaimlerChrysler Services Canada Inc. and Daimler Chrysler Financial Services Canada Inc., brought four motions for summary judgment in four related actions arising from a fatal motor vehicle accident.

They argued the actions against them were statute-barred because they were commenced outside the applicable limitation periods under the Limitations Act, 2002 and the Trustee Act.

The plaintiffs had initially sued the driver as the owner based on a police accident report, only discovering later that DaimlerChrysler was the true owner.

The court dismissed the motions for summary judgment, finding that the plaintiffs exercised reasonable diligence in relying on the police report and the driver's statement of defence admitting ownership.

For the Trustee Act claims, the court found special circumstances existed to allow the claims to proceed despite the expiration of the limitation period, noting the lack of prejudice to DaimlerChrysler.

The plaintiffs brought a motion seeking extensive documentary and oral discovery in a motor vehicle accident action and requesting that the defendants be prevented from bringing a summary judgment motion until discovery was completed.

The defendants argued that discovery should be deferred because they intended to move for summary judgment based on a limitations defence.

The court held that disclosure obligations under the Rules of Civil Procedure are not automatically suspended because a party intends to bring a summary judgment motion.

The court found that the requested disclosure was necessary for the plaintiffs to properly respond to any summary judgment motion and to prepare the case generally.

Most discovery relief was granted, including an order requiring a formal reply to a demand for particulars identifying the owner and lessor of the vehicle, but the request to prohibit the summary judgment motion was dismissed without prejudice.