Anthony H. Gatensby

The insurer of a Hindu temple moved for summary judgment seeking a declaration that it owes no duty to defend the temple in a claim brought by a plaintiff alleging sexual abuse by a temple employee.

The insurer argued that the loss was excluded from coverage under Common Exclusion 7 (sexual abuse exclusion) and that the temple breached its obligation to report the claim, resulting in irreparable prejudice.

The court granted the motion, finding that Common Exclusion 7 applied to exclude the loss in its entirety, making the other issues moot.

The Dominion of Canada General Insurance Company (Dominion) sought equitable contribution from Bay of Quinte Mutual Insurance Company (BOQM) for defence costs in an underlying claim.

The underlying claim involved allegations of negligent construction (covered by Dominion's policy from 2010-2013) and negligent misrepresentation by the vendors (covered by BOQM's homeowner's policy from 2020-2021).

Dominion had undertaken to defend the construction claims but explicitly excluded vendor-related allegations and property damage outside its policy period.

The court dismissed Dominion's application, finding that Dominion had no right to equitable contribution because its defence coverage was limited to claims within its policy period, and the risks covered by the two insurers were distinct and did not overlap in a manner that would trigger equitable contribution.

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 appellants, a landlord and its beneficial owner, appealed a motion judge's decision that a subrogated action by the landlord's insurer against the tenant for fire damage was barred by the commercial lease.

The motion judge had found that the tenant's contribution to the landlord's fire insurance precluded such an action, despite an indemnity provision, as the lease did not explicitly state otherwise.

The Court of Appeal dismissed the appeal, finding no errors in the motion judge's interpretation of the lease, his holistic reading of its terms, or his consideration of relevant case law.

The third-party insurer, United States Liability Insurance Company, brought a summary judgment motion to determine its duty to defend its insureds, Harold Douglas Eakins and Jack-O’s Sports Bar, in a personal injury claim.

The plaintiff alleged over-serving of alcohol, a fall from a barstool, and a subsequent forcible removal and assault by the proprietor.

The insurer relied on broad assault and battery exclusion clauses in its commercial general liability and liquor liability policies, which explicitly included negligence in their definitions of assault and battery.

The court found that the plaintiff's pleadings, even as amended, could not be severed from the factual matrix involving assault or battery as broadly defined in the policy.

Consequently, the court granted summary judgment, dismissing the third-party claim against the insurer, finding no duty to defend.

This appeal addresses issues of jurisdiction simpliciter and forum non conveniens in a complex international insurance coverage dispute.

Vale and RSA initiated actions in Ontario seeking coverage for environmental liabilities, primarily in Ontario, after Travelers commenced a similar action in New York.

The motion judge largely found Ontario had jurisdiction and was not forum non conveniens, except for North River.

The Court of Appeal dismissed the insurers' appeals, affirming Ontario's jurisdiction over them, and allowed Vale's appeal, finding Ontario also had jurisdiction over North River.

The court emphasized that a comprehensive general liability insurer underwriting Ontario risks connects itself to Ontario for jurisdictional purposes, and that the "first-to-file" rule does not automatically determine the appropriate forum.

Supplemental reasons issued to correct an error in the court's previous decision (2022 ONSC 12).

The court corrected paragraph 4 to clarify that Lloyds should not have been listed as a party challenging the forum of the action.

Vale Canada and its primary insurer, RSA, brought actions against numerous excess insurers for coverage of environmental remediation costs incurred primarily in Ontario.

Several foreign excess insurers brought motions challenging the jurisdiction of the Ontario court or seeking a stay based on forum non conveniens in favour of an action in New York.

The court found it had jurisdiction over all moving insurers except North River Insurance Company, concluding that the insurers were 'carrying on business' in Ontario by participating in a global insurance program for an Ontario-based company.

The court declined to stay the actions for forum non conveniens, finding Ontario to be the 'centre of gravity' for the dispute.

Claims by Vale Canada against two UK insurers were stayed pending arbitration.

The plaintiffs brought an action against multiple insurers for indemnity regarding environmental damage.

Several foreign defendants failed to deliver statements of defence within the required time limits, and one was noted in default.

The defendants sought an extension of time to defend or bring jurisdictional motions, arguing the court should wait for the outcome of a parallel proceeding commenced by one of the insurers in the United States.

The court refused to delay the Ontario proceeding, finding no prejudice to the defendants in requiring them to respond timely, and ordered the defendants to deliver their statements of defence or motion records by a specified deadline.

This appeal concerned an insurer's duty to defend its insured, Panasonic Eco Solutions Canada Inc., against two breach of contract claims in an arbitration.

The professional errors and omissions policy excluded contractual liability unless the liability would exist in the absence of the contract.

The application judge found a duty to defend one claim (Engineering Agreement) but not the other (Proceeds Agreement).

The Court of Appeal allowed the insurer's appeal and dismissed the insured's cross-appeal, finding no duty to defend either claim.

The court held that the liquidated damages claim under the Engineering Agreement was purely contractual and the sole remedy, thus falling within the exclusion.

The claim under the Proceeds Agreement was for a contractual debt, and related negligent misrepresentation and unjust enrichment claims were also not covered by the policy.

Panasonic Eco Solutions Canada Inc. sought a declaration that its insurer, XL Specialty Insurance Company, owed it a duty to defend an underlying arbitration claim.

The arbitration involved claims for liquidated damages arising from an Engineering Agreement and damages from a Proceeds Agreement.

The insurance policy was an errors and omissions policy with a contractual liability exclusion.

The court granted the application for a duty to defend in respect of the liquidated damages claim, finding that the facts alleged could support a claim for negligence despite being pleaded as breach of contract.

However, the court dismissed the application for the Proceeds Agreement claim, determining it was purely contractual, a debt claim, or involved negligent misrepresentation of intent to pay, which fell within the contractual exclusion or the policy's exclusion for equitable relief.

XL was granted the right to control the defence of the liquidated damages claim.

Costs were ordered to be borne by each party due to divided success.

This case involves an appeal from an arbitrator's decision in an insurance priority dispute.

The arbitrator found that an employer (insured by Old Republic) made a vehicle available for an employee's regular use at the time of an accident, requiring Old Republic to pay statutory accident benefits.

The employee, a short-haul truck driver, was injured while driving his mother-in-law's car to work, but had permission to sleep in a company truck the night before a haul.

The Superior Court of Justice dismissed Old Republic's appeal, affirming the arbitrator's decision.

The court also clarified that correctness is the appropriate standard of review for such priority decisions where there is no significant factual issue to be decided.