Joyce Tam

Great American Insurance Company appealed a judgment finding it had a duty to defend the City of Thunder Bay against claims related to property damage from sodium hydroxide in the water supply.

Great American argued a lead exclusion in its policy precluded coverage.

The Court of Appeal upheld the application judge's finding that a section of the lead exclusion was ambiguous, thus triggering the duty to defend based on the "mere possibility" of coverage, as per *Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada*.

The appeal was dismissed, and costs were awarded to the respondents.

The appellant insurer challenged a trial judgment awarding compensatory and punitive damages to the respondents for a stolen jewellery claim.

The insurer had denied the claim and defended the action by requiring the insureds to prove pre-policy ownership, despite having accepted their ownership at policy issuance and admitting no material misrepresentation.

The Court of Appeal upheld the trial judge's finding of bad faith warranting punitive damages, ruling that the insurer's conduct was an unreasonable and unfair interpretation of the policy.

The Court also affirmed the compensatory damages award based on appraised replacement value, as the insurer failed to provide evidence that actual cash value was lower.

This appeal addressed whether relief from forfeiture is available to an insured under a professional liability insurance policy when the claim was not reported to the insurer during the policy period.

The Court of Appeal affirmed the application judge's finding that the policy was a "claims made and reported" policy, meaning that reporting the claim within the policy period was a condition precedent to coverage.

As coverage was not triggered due to the late reporting, relief from forfeiture was not available.

The court clarified that the principle from *Stuart v. Hutchins* remains undisturbed by *Kozel v. Personal Insurance Co.*, maintaining the distinction between non-compliance with a condition precedent and imperfect compliance.

The appellants, small and mid-size businesses, appealed a class action decision regarding business interruption insurance claims stemming from the COVID-19 pandemic.

They sought coverage for revenue losses, arguing that the presence of SARS-CoV-2 or civil authority orders constituted "physical loss or damage" to their property under their insurance policies.

The Court of Appeal upheld the trial judge's finding that neither the virus's presence nor the civil authority orders met the "physical loss or damage" criteria for business interruption coverage.

The appeal was dismissed, and costs were awarded to the respondents.

The plaintiffs, representing a class of small to medium-sized businesses, sought coverage under their business interruption insurance policies for losses sustained due to the COVID-19 pandemic and related civil authority orders.

The court held a common issues trial to determine whether the presence of the SARS-CoV-2 virus or government lockdown orders could cause 'physical loss or damage to property' within the meaning of the policies.

The court concluded that the virus does not physically alter or damage inanimate surfaces, and that the loss of use of the premises due to government orders does not constitute physical loss or damage.

Consequently, the court answered the certified common issues in the negative, finding no coverage under the business interruption provisions.

The Applicants sought a declaration that the Respondents were responsible for coverage of a professional liability claim under an excess liability policy.

The policy was a "claims made and reported" policy, requiring claims to be made and reported during the policy period.

The Applicants' insurance broker failed to report the claim to the Respondents until three years after the policy period expired.

The court found that the "claims made and reported" requirement was a condition precedent to coverage and was not met.

The court rejected arguments that the Respondents suffered no prejudice or that other policy conditions were inconsistent.

The court also declined to grant relief from forfeiture, noting that the Applicants would not suffer prejudice as their broker had admitted negligence and agreed to indemnify them.

The application was dismissed, and costs were awarded to the Respondents.

The appellant, Antonio Doria, appealed the dismissal of his action against the respondents, which was brought after he had already received and collected an arbitration award for the same damages.

The motion judge dismissed the action as an abuse of process under Rule 21.01(3)(d), finding that the plaintiff was attempting to re-litigate damages claims.

The Court of Appeal upheld the dismissal, confirming that Section 139 of the Courts of Justice Act does not confer an absolute right to pursue separate actions against jointly liable parties if it constitutes an abuse of process, especially when a full opportunity to adjudicate the claim has already occurred and the award collected.

The Court also dismissed the appellant's request for leave to appeal the costs award.

The applicants sought indemnity under a professional liability 'claims made' policy.

The insurers denied coverage based on an exclusion clause for claims arising from wrongful acts committed prior to the policy period if the insured's Chief Legal Counsel knew or could have reasonably foreseen that such acts would result in a claim.

The court found that prior to the policy commencing, the applicants' Chief Legal Counsel had sufficient knowledge of alleged wrongful acts by an employee to reasonably foresee that a claim would be brought.

The application was dismissed and costs were awarded to the respondents.

The moving parties sought leave to appeal the order of Belobaba J. dated May 18, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the agreed-upon amount of $6,000.

The plaintiff rented his home for a film production, during which his floor was scratched.

He previously arbitrated a claim for $680,000 against the production company and was awarded $49,668.38.

Dissatisfied with the award, the plaintiff commenced a new action against different defendants (Warner Bros. entities) seeking over $500,000 for the same damage.

The defendants moved to strike the claim as an abuse of process.

The court granted the motion, finding that section 139 of the Courts of Justice Act does not permit a plaintiff to relitigate a fully adjudicated claim simply because they are dissatisfied with the damages awarded in the first proceeding.

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

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.

The plaintiff municipality sought a declaration that its insurers had a duty to defend it in relation to a Director's Order issued by the Ministry of the Environment and Climate Change regarding environmental contamination.

The defendant insurers brought a Rule 21 motion to determine whether the Director's Order constituted a 'civil action' under their respective liability policies.

The court held that a regulatory proceeding, including an appeal of a Director's Order to the Environmental Review Tribunal, is not a 'civil action' as defined by the Rules of Civil Procedure or the Courts of Justice Act.

Consequently, the insurers had no duty to defend the municipality.

The applicants, former directors of PACE Savings & Credit Union, sought a declaration that CUMIS General Insurance Company had a duty to defend them in an action brought by the Financial Services Regulatory Authority (FSRA) as administrator of PACE.

CUMIS denied coverage based on the 'Insured vs. Insured' exclusion in the Directors' and Officers' Liability Policy.

The court held that while the exclusion applied, the 'derivative action' exception restored coverage because the FSRA, acting as a 'person', brought the claim on behalf of the corporation.

The court also ruled that applicants facing fraud claims were entitled to independent counsel due to a conflict of interest, while those facing only negligence claims were not.

The applicant sought a declaration that its insurer had a duty to defend it in an underlying lawsuit.

The insurer argued that coverage was excluded under Exclusion 20 of the claims-made policy, which excluded claims of which the insured was aware as of the 'inception date of this Policy'.

The court found the phrase 'inception date' to be hopelessly ambiguous, as it could refer to either the initial policy issuance date or the most recent renewal date.

Applying the principles of contract interpretation, the court construed the ambiguous exclusion clause against the insurer and granted the application, ordering the insurer to provide a defence.

This appeal addressed the application of Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act) to a negligence claim.

Subway sued Trent University for negligence and defamation after Trent's testing of Subway's chicken products was featured on a CBC "Marketplace" broadcast.

The motion judge dismissed Trent's anti-SLAPP motion, finding the negligence claim did not arise from an expression.

The Court of Appeal allowed Trent's appeal, holding that the negligence claim did arise from an expression related to a matter of public interest.

Furthermore, the Court found that Subway's negligence claim lacked substantial merit because no duty of care existed between Trent and Subway, as there was no undertaking of responsibility by Trent in favour of Subway, nor any reliance by Subway on Trent's services or statements.

The motion judge's order was set aside, and Subway's negligence claim was dismissed.

The appellant held an unsatisfied default judgment against a contractor for defective sewer installation and sought to recover the judgment from the contractor's insurer under s. 132 of the Insurance Act.

The insurer denied coverage because it did not receive notice of the action until nine years after it was commenced.

The application judge dismissed the claim, finding the insured breached the policy's timely notice condition and refusing relief from forfeiture due to prejudice to the insurer.

The Court of Appeal dismissed the appeal, holding that notice provided by the appellant under Statutory Condition 8 did not cure the lack of timeliness, and that the appellant stood in no better position than the insured.

The insured renewed a travel insurance policy by telephone, providing answers about medical conditions.

After hospitalization, the insurer denied the claim due to alleged misrepresentation.

The insured's estate argued that the insurer could not rely on oral statements, asserting that Statutory Condition 2 of the Insurance Act required written statements.

The court dismissed the application, holding that the insurer's practice of providing a written application for review and correction after the telephone interview satisfied the statutory requirement and the consumer protection objectives of the Insurance Act.