John Nicholl

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.

The plaintiff, Jeff Mailloux, brought a motion under s. 29 of the Class Proceedings Act, 1992, for leave to discontinue a proposed class action against Nissan Canada Inc. with prejudice and without costs.

Nissan consented to the motion.

The class action concerned a products liability claim for pure economic losses related to defective Takata airbag inflators.

The motion for discontinuance was brought due to significant changes in the legal landscape regarding compensation for pure economic loss from negligent supply of faulty goods, which greatly diminished the prospects of a substantial economic recovery for the class members.

The court granted the motion, finding that the action was commenced for a proper purpose, putative class members were not prejudiced, and the proposed notice of discontinuance was satisfactory.

Following the dismissal of the applicants' insurance coverage application, the parties made written submissions on costs.

The respondent sought $100,000 based on a pre-hearing costs agreement, or alternatively $254,566.28 on a partial indemnity basis.

The applicants argued the agreement should not be enforced because the respondent's evolving position caused them to incur significant additional costs.

The court enforced the costs agreement, finding no breach or vitiating factors, and awarded the respondent $100,000 for the application plus $8,136 for the costs submissions.

The applicant restaurant chain sought a declaration of coverage under its commercial 'all risks' insurance policy for business interruption losses caused by government-mandated closures during the COVID-19 pandemic.

The applicant argued that coverage was triggered under the policy's civil authority and ingress/egress extensions.

The court dismissed the application, finding that the policy required 'direct physical loss or damage' to trigger coverage.

The court held that the COVID-19 virus and the resulting government orders did not cause direct physical loss or damage to the insured's property, and therefore the losses did not fall within the policy's coverage.

The moving parties, Hyundai Motor Company and Hyundai Auto Canada Corp., sought leave to appeal the order of Barnes J. dated June 10, 2022.

The Divisional Court dismissed the motions for leave to appeal.

Costs of $4,000 were awarded against each moving party, payable to the respondent within 30 days.

The applicants sought declarations concerning insurers’ duty to defend multiple opioid class actions, the insureds’ right to select a single defending policy, allocation of defence costs, exhaustion of SIRs and deductibles, and the terms on which insurers could receive defence-side reporting.

The court held that, subject to exhaustion of the relevant SIRs or deductibles, each applicant could select any single policy under which there was a duty to defend, and the selected insurer was required to pay all reasonable defence costs associated with covered claims even if those costs also furthered uncovered claims.

Time-on-risk allocation was accepted only as an equitable mechanism among insurers with concurrent obligations, not as a basis to reduce contractual defence obligations owed to the insureds.

The court further held that pre-tender defence costs could attract relief from forfeiture, that disputed SIR exhaustion issues required a trial, and that insurers seeking privileged defence-side reporting had to maintain robust ethical screens through a defence reporting agreement because both party-based and coverage-based conflicts were present.

Tbaytel, the moving party, sought to strike an affidavit filed by Optiva Inc., the responding party, in connection with Optiva's pending motion for leave to appeal an arbitration award.

The affidavit, from J. Brian Casey, aimed to provide factual information regarding the public importance of issues raised in the leave to appeal motion, specifically concerning the availability of summary judgment in arbitration without consent and the arbitrator's use of case law.

The court partially granted the motion, striking parts of the affidavit that expressed opinions on the legal importance of issues or buttressed attacks on the correctness of prior decisions, while allowing factual descriptions of common arbitration practices to remain.

The applicants brought a motion for leave to amend their Amended Notice of Application to add Sentry Insurance Company, Teva Canada Limited, and National Union Fire Insurance Company of Pittsburgh, PA as respondents.

The proposed respondents consented to the relief sought.

The court granted the motion on consent, with the application against the newly added parties to be adjourned to a later date.

The appellant insurer appealed a judgment of the Superior Court of Justice regarding insurance policy interpretation.

The insurer argued that there was no "Claim" against an "Insured Person" for a "Wrongful Act" nor was there a "Loss" within the policy's definitions.

The Court of Appeal found no error in the application judge's interpretation of the governing principles or the policy language, and dismissed the appeal.

The respondent was awarded costs of $16,000.

Liberty Silver Corporation sought indemnification from Liberty Insurance Underwriters Inc. for legal costs incurred by its officers and directors during an investigation by the United States Securities and Exchange Commission (SEC) and the Ontario Securities Commission (OSC).

Liberty Insurance denied coverage, arguing the investigative order and subpoenas did not constitute a "Claim" against an "Insured Person" for a "Wrongful Act" and that Liberty Silver was no longer "legally obligated to pay" due to an assignment agreement.

The court found the investigative order was a "formal regulatory investigation" and thus a "Claim" and that a holistic interpretation of the policy meant "Wrongful Act" included matters giving rise to such an investigation.

The court also rejected arguments regarding the assignment agreement and statute of limitations.

The application for indemnification was allowed, and Liberty Silver's proposed allocation of defence costs was accepted.

The receiver of the appellant appealed a motion judge's interpretation of an accounts receivable insurance policy with the respondent insurer.

The motion judge found that buyers' claims for set-off against amounts owing to the appellant constituted a 'dispute' under clause 7 of the policy, which deferred the insurer's liability to pay claims.

The Court of Appeal upheld the decision, finding no ambiguity in the clause and confirming that a dispute is not restricted to claims arising out of the unpaid shipment of goods.

The appeal was dismissed.

In a receivership motion concerning accounts receivable insurance, the moving party sought a declaration that no outstanding disputes remained under the policy so as to trigger payment by the insurer.

The court held that the policy’s Dispute Clause was broadly worded and suspended payment where any legitimate dispute between the insured and the buyer called into question the amount owing, including set-off claims arising from unrelated shipments.

The court rejected the argument that the clause was shipment-specific and found that the policy contemplated an ongoing buyer relationship in which unresolved unrelated complaints could affect the calculation of loss.

The motion was dismissed and costs were fixed in favour of the responding party.

The appellant purchased assets from a bankrupt company.

The agreement provided that the inventory valuation would be reviewed by the bankrupt's auditors, the respondents, whose opinion would be final and binding.

The appellant later sued the respondents for negligence in their valuation.

The respondents filed a declinatory exception, claiming immunity as arbitrators.

The Supreme Court of Canada held that the respondents were acting as experts, not arbitrators, because there was no existing or potential dispute at the time of their appointment.

Consequently, they did not enjoy immunity from civil liability, and the action for damages was allowed to proceed.