Hillel David

The applicant property manager sought a declaration that the respondent insurer had a duty to defend it in an underlying slip-and-fall action.

The applicant was an additional insured on a commercial general liability policy obtained by a floor mat supplier.

The court found no duty to defend, as the underlying statement of claim alleged independent negligence against the applicant regarding its property management duties, rather than liability arising solely out of the operations of the floor mat supplier.

The court also held that even if a duty to defend existed, the applicant would not be entitled to appoint independent counsel at the insurer's expense, as there was no reasonable apprehension of a conflict of interest.

Following summary judgment dismissing the plaintiff’s claim against all defendants, the court addressed supplementary costs submissions from a defendant who did not participate in the summary judgment motion and from several third parties added to the litigation by defendants.

The court reviewed the discretionary framework for costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

While plaintiffs are generally not liable for costs incurred by third parties, the court noted that such costs may be ordered where the third party proceedings flowed naturally from the plaintiff’s claim.

The court awarded the non‑participating defendant partial indemnity costs and exercised its discretion to award approximately half of the third parties’ requested costs against the plaintiff.