Marc D. Isaacs

The appellants sought a declaration that their insurer had a duty to defend and indemnify them in an underlying action for misrepresentation related to a property sale.

The application judge dismissed the application, finding no duty to defend.

On appeal, the Court of Appeal found the application judge erred in relying on an "entire agreement" clause to deny coverage for negligent misrepresentation claims.

However, the Court upheld the dismissal on an alternative ground: the appellants' failure to provide prompt notice of the claim to the insurer, which constituted a breach of the policy and was not eligible for relief against forfeiture.

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 which party should bear the cost of interim preservation of vehicles in a damages action.

BMW claimed total loss of 2,966 vehicles due to Autoport's negligence and sought to dispose of them, while Autoport required their preservation for inspection.

The Master and Divisional Court ordered Autoport to bear the costs, but the Appeal Judge reversed, placing the burden on BMW.

The Court of Appeal found errors in the lower courts' application of Rule 45.01, emphasizing that the test for interim preservation of evidence should focus on trial fairness, not a rigid "balance of convenience" test.

The court concluded that BMW, as the party in possession of the evidence and with the information needed for Autoport's inspection, must bear the costs of preservation until it provides the necessary disclosure.

The defendant insurer brought a summary judgment motion to dismiss the plaintiffs' claim for insurance coverage after fish were contaminated by oil from an ice-making machine during processing.

The insurer relied on the 'Process Clause' and 'Fault in Preparation' exclusions in the all-risk policy.

The court dismissed the insurer's motion and granted summary judgment in favour of the plaintiffs, finding that the accidental contamination was a fortuitous event not intended as part of the processing or preparation, and therefore the exclusions did not apply.

The plaintiff sued the defendant for $175 million, alleging that 2,966 imported vehicles were damaged by severe winter weather while stored at the defendant's facility.

The plaintiff recalled all vehicles and sought to destroy them, while the defendant sought an order to preserve the vehicles for inspection.

The Master ordered the defendant to assume the $10,000 daily storage costs if it wished to preserve the vehicles.

On appeal, the Superior Court reversed this, finding the plaintiff had a prima facie obligation to preserve evidence.

The Divisional Court allowed the plaintiff's appeal, holding there is no general prima facie duty to preserve property under Rule 45.01, and restored the Master's order requiring the defendant to pay storage costs if it elects to preserve the vehicles.

A boat passenger was injured when the boat struck the shoreline and sued both the driver and owner.

The driver was covered under two insurance policies: the owner's TD policy and his own Intact homeowner's policy.

Both policies contained identical "other insurance" clauses declaring themselves excess to other applicable insurance.

TD sought an order requiring both insurers to share equally in the defence and indemnification of the driver.

The application judge dismissed the application, finding TD's policy provided primary coverage based on a "closeness to the risk" analysis.

The Court of Appeal allowed the appeal, holding that the application judge erred by applying the rejected "Minnesota approach" and that the irreconcilable conflict between the identical excess clauses required equal contribution from both insurers.

The defendant, TD Home and Auto Insurance Company, sought full indemnity costs of over $600,000 after successfully defending a breach of contract claim (arson defence) and succeeding on a counterclaim in a three-week jury trial.

The plaintiff, Nazir Azami, conceded costs but argued the amount was excessive and should be on a partial indemnity scale.

The court, applying Rule 57.01(1) of the Rules of Civil Procedure, found that substantial indemnity costs were warranted due to the plaintiff's deceitful conduct and unfounded allegations of misconduct.

However, the court significantly reduced the claimed amount, finding the defendant's docketed hours (over 1,750 combined hours by six lawyers) and claimed disbursements (over $130,000) to be disproportionate and excessive.

The court also noted the defendant's conduct contributed unnecessarily to the trial's length.

Ultimately, the court ordered the plaintiff to pay the defendant's costs in the total amount of $211,500, inclusive of fees, disbursements, and HST.

The appellant, Broadgrain Commodities Inc., sold sesame seeds to Beidahuang Grain Group Co. Ltd. under a CIF contract.

The goods were damaged during transit.

The appellant obtained marine insurance from the respondent, Continental Casualty Company, but the respondent denied coverage.

The motion judge granted summary judgment dismissing the appellant's action, finding that although the appellant had an insurable interest, it sustained no loss as it was paid in full by Beidahuang.

The appellant appealed, arguing it suffered loss through subsequent short-payments from Beidahuang.

The Court of Appeal upheld the dismissal, finding the appellant failed to provide any credible evidence of loss and that a self-serving affidavit without supporting documentation was insufficient to create a triable issue.

The defendant was wholly successful on a summary judgment motion dismissing the plaintiff's action regarding a marine insurance claim.

The court previously awarded costs to the defendant on a partial indemnity scale and requested submissions on quantum.

After considering the complexity of the factual and legal issues, the volume of document production, and the amount claimed, the court fixed the defendant's costs at $50,848.75 inclusive of fees, HST, and disbursements.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's action for compensation under a marine insurance policy for damaged cargo.

The defendant argued the plaintiff lacked an insurable interest and suffered no loss because the buyer paid in full.

The court found the plaintiff maintained an insurable interest throughout the voyage under the broad definition in the Marine Insurance Act.

However, the court granted summary judgment dismissing the action because the plaintiff failed to provide sufficient evidence that it suffered a loss, relying only on a bald assertion that it was short-paid on subsequent shipments.

Following a summary judgment motion where the court found the plaintiff's claim for a duty to defend was time-barred, the court clarified that the claim for indemnification was premature and dismissed it without prejudice.

On the issue of costs, the court apportioned the defendant insurer's costs between the duty to defend and indemnification issues.

The court awarded the defendant $8,000 in costs for the duty to defend issue, payable within 60 days, and $5,000 for the deferred indemnification issue, payable in any event of the cause after the underlying actions are concluded.

The insured sought a declaration that his home insurer was required to defend and indemnify him in a personal injury action arising from a cycling accident with a pedestrian.

The insurer had denied coverage by letter and the insured commenced an action nearly three years later.

On cross-motions for summary judgment, the court considered whether the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The insured argued that an additional policy condition created ambiguity and delayed the limitation period until the underlying action was resolved.

The court rejected that interpretation, holding the condition applied only to indemnification claims and not to the duty to defend.

The action against the insurer was therefore commenced out of time.

This is a companion appeal to Unifund Assurance Company v. D.E. and L.E. The appellant insurance company appealed a declaration that it had a duty to defend and indemnify the respondent parents and their minor daughter in an underlying action relating to alleged bullying and harassment.

Applying the reasons from the companion appeal, the Court of Appeal found the application judge erred in interpreting the exclusion clause.

The court also held that the minor daughter was excluded from coverage as the underlying claim was strictly for intentional torts of assault and battery.

The appeal was allowed, and the court declared the insurer had no duty to defend or indemnify.

In CCAA proceedings involving shipping companies, the court addressed issues arising from a Claims Process Order and a referee’s report adjudicating maritime claims.

The court held that the referee was best positioned to determine entitlement to costs arising from the claims adjudication and directed that the referee address costs in accordance with the draft order.

The court declined to restrict cost submissions to certain claimants, holding that all claimants should be on equal footing.

A request to reconsider the referee’s decision or to receive further evidence was premature because no formal motion had been served.

The referee’s report was confirmed, the monitor’s eighth report was approved, and the monitor was discharged subject to conditions.

The insured was sued for negligent misrepresentation in a seller property information statement, with the plaintiff claiming damages for repair costs and health consequences.

The insurer appealed an application judge's finding that it had a duty to defend the entire action under the insured's homeowner's policy.

The Court of Appeal upheld the finding that the health consequences constituted 'Bodily Injury' triggering a duty to defend, rejecting the argument that the claim was merely derivative of the economic loss claim.

However, the Court allowed the appeal in part, holding that the insurer should not be responsible for 100 per cent of the defence costs since the covered claims represented only a small portion of the total damages claimed.

The cross-appellants (the sellers) appealed a trial judgment finding them liable for negligent misrepresentation regarding the value of business inventory sold to the respondents (the buyers).

The trial judge had awarded damages to the buyers but reduced the award by 20 percent due to contributory negligence.

On appeal, the sellers argued the buyers did not reasonably rely on the misrepresentation and suffered no detriment, while the buyers argued the finding of contributory negligence was inconsistent with reasonable reliance.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings of reasonable reliance, detriment, and contributory negligence were supported by the evidence and could co-exist.

The insured was sued for damages arising from an alleged unprovoked physical attack.

The insurer denied its obligation to defend, relying on the policy's exclusion for intentional acts.

The insured successfully applied for a declaration that the insurer owed a duty to defend, arguing that his actions were in self-defence and therefore not intentional.

On appeal, the Court of Appeal held that the true nature of the claim was for the intentional torts of assault and battery, which were explicitly excluded from coverage.

The court concluded that self-defence does not change the intentional nature of the act, and thus there was no possibility of indemnification to trigger the duty to defend.

The appeal was allowed and the application dismissed.

The applicant was injured in a motor vehicle accident and applied for arbitration claiming ongoing weekly income benefits.

The insurer requested an Insurer's Medical Examination (IME) shortly before the scheduled arbitration hearing, which the applicant refused to attend.

The insurer sought an adjournment of the hearing.

The arbitrator found the insurer's request for an IME unreasonable due to its proximity to the hearing date and the insurer's failure to request it earlier despite having ample opportunity.

The request for an adjournment was dismissed.