Kurt K. Pereira

The Court of Appeal for Ontario dismissed an appeal by S.D.M.O. Industries (Kohler-SDMO) and Kohler Co., who sought to stay proceedings on the basis of lack of jurisdiction or a forum selection clause favoring a French court.

The court held that Ontario had jurisdiction, the forum selection clause was not proven to be valid or applicable, and the motion judge made no reviewable error.

The appeal was dismissed with costs.

This appeal addresses an insurer's duty to defend and fund defence costs for mixed claims (covered and uncovered).

The Court of Appeal clarified the application of the pleadings rule to determine coverage and whether an insurer can seek equitable contribution from an insured.

The application judge erred in characterizing all claims as covered and in finding equitable contribution inapplicable between insurer and insured.

The Court found that statutory negligence claims were not covered by the Aviva policy, but upheld the initial 100% funding by Aviva, subject to reallocation after trial or settlement, as equitable contribution is only available between concurrent insurers, not from an insured.

The plaintiffs brought an action for damages arising from catastrophic failures of emergency generators at a hospital.

Defendants SDMO and Kohler moved to stay proceedings, arguing lack of jurisdiction or that Ontario was not an appropriate forum.

The court found Ontario had jurisdiction simpliciter as the torts (property damage, failure to warn, negligent misrepresentation) occurred in the province.

The court also found the forum selection clause in the contract between SDMO and GAL Power was not properly before the court and would not apply to third parties or be enforceable against GAL Power.

Finally, the court determined Ontario was the most appropriate forum, considering the location of parties, witnesses, and evidence, and the existence of related proceedings.

The motion for a stay was dismissed.

This application concerned a dispute between Live Nation and Aviva regarding which of two insurance policies (Aviva's or Live Nation's Starr policy) should primarily cover Live Nation's defence costs in a related claim.

Live Nation, as an additional insured under Aviva's policy (issued to its security contractor NWP), argued Aviva's policy was primary.

Aviva contended its policy was excess and sought equitable contribution from Live Nation's policy.

The court found Aviva's policy to be primary, rejecting the equitable contribution argument based on policy language and commercial intent, and ordered Aviva to pay 100% of defence costs, subject to a future re-apportionment application.

Following a motion to strike evidence where the determination was reserved to the application judge, the parties made submissions on costs.

The responding party sought an immediate award of costs, while the moving party submitted costs should be reserved.

The court applied previous jurisprudence holding that where the merits of a motion to strike are not decided, costs should be reserved.

Costs of the motion were reserved to the judge hearing the application on its merits.

The respondent club brought a motion to strike out portions of an affidavit filed by the applicant in support of an application, arguing the impugned paragraphs contained argument, contentious facts based on information and belief without a specified source, and privileged information.

The court considered whether it should rule on the admissibility of the evidence prior to the hearing of the application on its merits.

Applying the principle that evidence should generally not be struck on an interlocutory motion absent special reasons, the court declined to decide the admissibility issues.

The motion was dismissed, leaving the evidentiary rulings to the judge hearing the application.

The applicant soccer clubs sought judicial review of decisions by the respondent soccer associations denying the transfer of three competitive youth soccer teams from a financially troubled club.

The court held a trial of an issue to determine if the respondents had promised the transfers would be approved, and also considered whether it had jurisdiction to review the decisions.

The court declined jurisdiction, finding the respondents were voluntary associations making operational policy decisions that did not prevent any individual from playing soccer, but merely affected team composition.

Furthermore, the court found on the evidence that the respondents never represented that the transfers would be approved.

The application was dismissed.

The plaintiffs moved under the Rules of Civil Procedure for leave to amend their statement of claim to add three individuals associated with the Ontario Soccer Association as personal defendants and to plead breach of fiduciary duty.

The action arose after a soccer player was rendered a partial quadriplegic during an association-sanctioned game and alleged inadequate insurance coverage for catastrophic injuries.

Applying the “plain and obvious” test for pleadings, the court held it was arguable that the proposed individual defendants may have owed a duty of care in relation to the procurement and communication of insurance coverage for association members.

Leave was therefore granted to add the individuals as defendants and to amend the negligence claims.

However, the court found it plain and obvious that a fiduciary relationship could not exist between the individual defendants and the injured member, and that proposed fiduciary duty claims against them should be struck, though such a claim against the association itself could proceed.