Jessica Forester

An insurance company appealed a decision denying its application for a declaration that it was not obligated to defend or indemnify a policyholder in a negligence action arising from a dirt bike accident.

The insurer had appointed counsel and defended the action for approximately 10 months before denying coverage based on policy exemptions for unregistered vehicles and vehicles used without consent.

The application judge found the insurer was estopped from denying coverage and refusing to defend.

The Court of Appeal upheld this decision, finding no error in the application judge's finding of detrimental reliance and estoppel based on the insurer's conduct in defending the action without securing a non-waiver agreement or reservation of rights letter.

The moving party sought to set aside an administrative dismissal by the Registrar of a motion for leave to appeal from a Divisional Court decision.

The Divisional Court had dismissed an appeal from a Small Claims Court judgment in favour of the respondent insurance company on a defendant's claim.

The motion judge found that the moving party had failed to provide adequate explanation for not completing leave to appeal materials despite multiple extensions and judicial prompting over nearly four years.

The motion judge dismissed the motion, finding delay, lack of confidence in future compliance, prejudice to the respondent, and weak merits.

The plaintiff brought a motion seeking the production of various documents from the defendant insurer, including an independent claims adjuster's file, the Peel Mutual Insurance Company file, and the Dutton Brock LLP file, along with a further and better Affidavit of Documents.

The defendant claimed solicitor-client privilege and litigation privilege over many of the requested documents.

The court dismissed the plaintiff's motion, finding that the Dutton Brock file was protected by solicitor-client privilege and the Peel Mutual claims notes were protected by an enlarged definition of litigation privilege, as the current action against the insurer was considered to be "essentially the same legal combat" as the prior action against the insured, as per the Supreme Court of Canada's ruling in Blank v. Canada (Minister of Justice).