Marcus Blair Snowden

Panasonic Canada Inc. brought an application for a declaration that its insurance claim with XL Specialty Insurance Company was subject to a $1.5 million USD retention and sought coverage for replacement laptops purchased as reasonable mitigation following a cyber-attack.

XL contended that a $3 million USD retention applied because the claim involved a "ransomware event" under Endorsement 23 of the policy.

The court found that Panasonic's claim attracted the lower $1.5 million USD retention, that the laptop purchases were reasonable and necessary mitigation expenses, and that the property damage exclusion did not apply.

The court granted Panasonic's application, save for six laptops that were not shown to be necessary.

This decision concerns the interpretation of an insurance policy following a flood at the City of Thunder Bay’s wastewater pollution control plant.

The central issue was whether increased repair costs required by building code upgrades were subject to a $10 million sub-limit.

The court found that the policy was unambiguous and that the sub-limit applied to all code compliance costs, rejecting the City’s argument that broader coverage was available.

The court also addressed costs, awarding the insurers $25,000.

This appeal concerns whether Honda Canada Inc. is entitled to indemnity from Tokio Marine & Nichido Fire Insurance Ltd. for class counsel fees and settlement administration costs arising from the settlement of class actions related to defective air bag actuator components.

The court upheld the arbitration award requiring Tokio to indemnify Honda for class counsel fees under the umbrella liability policy, but not for settlement administration costs, which were found to be excluded as recall or product withdrawal expenses.

The Insurers brought a motion for a declaration that the "Prior Acts Exclusion" in their Directors and Officers (D&O) insurance policies barred coverage for a claim asserted against Just Energy's D&Os.

The claim, filed by a representative plaintiff in a class action, sought unpaid wages and benefits from a period prior to Just Energy's Companies’ Creditors Arrangement Act (CCAA) filing.

The court found the Prior Acts Exclusion to be clear and unambiguous.

It determined that the exclusion applied to acts or omissions committed by anyone prior to the CCAA filing date, and that this interpretation was consistent with the commercial context of the policies, which were intended to cover post-filing D&O liability during insolvency.

The court concluded that applying the exclusion did not nullify the policy's main purpose or contradict the reasonable expectations of the parties.

The Insurers' motion was granted, and the representative plaintiff's request for relief against the Insurers was denied.

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.

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.

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 endorsement concerns a request to reconsider a costs disposition made on July 27, 2021.

The moving party for the reconsideration (respondents in the underlying appeal) had their costs submissions filed late and not forwarded to the panel.

The court reviewed the submissions but found no reason to vary the original costs order, confirming the previous disposition.

AIG Insurance Company of Canada sought substantial indemnity costs against The Corporation of the City of Markham and Lloyd’s Underwriters following a motion for reconsideration of an appeal decision.

The court found the reconsideration motion to be entirely without merit, having put AIG to needless expense.

Consequently, the court awarded AIG $13,000 in substantial indemnity costs, inclusive of disbursements and taxes, payable forthwith.

The respondents (moving parties on the motion) sought reconsideration of a Court of Appeal decision rendered 15 months prior.

The motion was dismissed as lacking merit, with the court emphasizing the principle of finality.

Reconsideration is rarely granted, especially when the moving party has already unsuccessfully sought leave to appeal to the Supreme Court of Canada on the same arguments, which was dismissed.

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 applicants brought a motion to compel the representative of Liberty Mutual Insurance Company to answer questions refused during cross-examination and to reattend.

Prior to the hearing, the parties settled the motion on consent.

The court granted the relief sought in accordance with the draft order.

The appellant developer contracted with an electrical contractor to construct two solar energy projects.

The contractor named the appellant as an additional insured under its commercial general liability policy for liability arising out of the contractor's operations.

After fires caused by transformers selected by the appellant, the appellant settled claims with the project purchaser and sought coverage from the insurer.

The Court of Appeal upheld the trial judge's finding that the appellant's liability did not arise out of the contractor's operations, as the contractor merely installed the transformers chosen by the appellant.

The appeal was dismissed.

This appeal concerns a dispute between two insurers, AIG Insurance Company of Canada and Lloyd's Underwriters, regarding their respective duties to defend the City of Markham in a personal injury action.

The application judge had found AIG solely responsible for the defence and denied AIG the right to participate in the defence.

The Court of Appeal allowed the appeal, holding that both AIG and Lloyd's had a concurrent duty to defend the City, and must share defence costs equally, subject to reallocation at the conclusion of the action.

Furthermore, the Court found that AIG has a right to participate in the defence, including retaining and instructing counsel, provided a "split file" protocol with additional safeguards is implemented to manage potential conflicts of interest.

Following the dismissal of the plaintiff's action for insurance coverage, bad faith, and professional negligence, the successful defendants sought costs.

Economical sought substantial indemnity costs based on unaccepted offers to settle.

The court rejected this, finding no egregious misconduct by the plaintiff, and awarded costs on a partial indemnity scale.

The court fixed the partial indemnity hourly rates at 60% of actual rates and assessed the reasonableness of the time and disbursements claimed, including expert witness fees.

The court awarded $356,452.49 in costs to Economical and $183,979.82 to FCA, emphasizing the objective of fixing an amount that is fair and reasonable for the unsuccessful party to pay.

The City of Markham brought an application seeking a declaration that AIG had a duty to defend it in an underlying personal injury action, and that the City was entitled to appoint independent counsel at AIG's expense due to a conflict of interest.

AIG conceded the duty to defend but disputed the right to independent counsel, pre-tender costs, and argued Lloyd's should share defence costs.

The court found a reasonable apprehension of conflict of interest, entitling the City to independent counsel.

The court denied pre-tender costs based on policy wording and held AIG responsible for all defence costs, including uncovered claims, subject to a right of reimbursement from Lloyd's.

The City of Markham brought an application seeking a declaration that AIG had a duty to defend it in an underlying personal injury action, and that the City was entitled to appoint independent counsel at AIG's expense due to a conflict of interest.

AIG conceded the duty to defend but disputed the right to independent counsel, pre-tender costs, and argued Lloyd's should share defence costs.

The court found a reasonable apprehension of conflict of interest, entitling the City to independent counsel.

The court denied pre-tender costs based on policy wording and held AIG responsible for all defence costs, including uncovered claims, subject to a right of reimbursement from Lloyd's.

Sky Solar, a solar energy project developer, sued its contractor's insurer (Economical) and insurance broker (FCA) after two fires involving transformers at its solar projects.

Sky Solar was an additional insured under the contractor's commercial general liability (CGL) policy.

After the second fire, Sky Solar settled with the project buyer (Firelight) for remediation costs and lost income, then sought indemnity from Economical.

Economical denied coverage, arguing Sky Solar's liability did not arise from the contractor's operations and that Sky Solar breached a policy condition by settling without consent.

Sky Solar also claimed negligence and bad faith against FCA for issuing certificates of insurance.

The court dismissed Sky Solar's action against both Economical and FCA, finding no coverage under the policy and no breach of duty by the broker.

Her Majesty the Queen in Right of Ontario (HMQ), as an additional insured under an AIG policy, applied for an order entitling it to appoint independent counsel at AIG's expense for two underlying actions and for reimbursement of pre-tender legal and administrative expenses.

AIG acknowledged its duty to defend but asserted its right to select counsel and denied pre-tender costs.

The court dismissed HMQ's application, finding that AIG's "split file" protocol adequately addressed any "party-based" conflict of interest and that HMQ failed to establish a "coverage-based" conflict.

The court also held that pre-tender defence costs were not recoverable due to voluntary payment wording in the policy.

In this addendum to a previous judgment, the Court of Appeal amended its declaration regarding the duty to defend under commercial general liability policies.

The court removed Royal & Sunalliance Insurance Company of Canada from the declaration, as it had settled prior to the appeal.

The court also removed a stipulation regarding a Professional Services Exclusion, which the insurers had withdrawn reliance upon.

Finally, based on a prior agreement between the parties, the court vacated its previous costs award and directed submissions for full indemnity costs.