Marcus Blair Snowden

The appellants appealed a motion judge's decision that their insurers had no duty to defend them in an underlying action regarding defective septic systems.

The Court of Appeal found that the motion judge erred by applying the 'Your Work' exclusion after correctly identifying that the underlying pleadings raised the mere possibility of consequential damages.

Because consequential damages are not excluded by the 'Your Work' exclusion, the mere possibility of such claims triggered the insurers' duty to defend.

The appeal was allowed and a declaration compelling the insurers to provide a defence was granted.

The defendants, Economical Mutual Insurance Company and Firstbrook, Cassie & Anderson Limited, brought motions for leave to amend their statements of defence under Rule 26.01.

The plaintiff opposed several proposed amendments, arguing they improperly pleaded res judicata, issue estoppel, withdrew admissions, and pleaded evidence rather than facts.

The Master granted leave to both defendants to amend their pleadings, finding no non-compensable prejudice to the plaintiff and concluding that the proposed amendments were legally tenable and properly pleaded the necessary elements of the defences.

The plaintiff, Sky Solar (Canada) Ltd., brought a motion for costs on a substantial indemnity basis after the defendant broker, Firstbrook, Cassie & Anderson Limited (FCA), abandoned its motion for summary judgment.

The court found that Sky Solar was prima facie entitled to costs under Rule 37.09(3) and that FCA failed to displace this entitlement.

Furthermore, the court determined that FCA acted unreasonably in bringing the summary judgment motion, particularly by ignoring judicial caution regarding expert evidence and proceeding without sufficient evidence, thus warranting substantial indemnity costs under Rule 20.06.

Contractors sought declarations compelling three commercial general liability insurers to defend them in an underlying construction action concerning alleged defects in septic systems installed in a residential subdivision.

The court considered whether the pleadings disclosed “property damage” caused by an “occurrence” under the policies and whether exclusions, including the “your work” and “professional services” exclusions, applied.

Although the pleadings raised a mere possibility of property damage caused by an occurrence, the court found that the “your work” exclusion applied and that the subcontractor exception was not established on the pleadings because the alleged supplier of filter sand was merely a supplier and not a subcontractor.

As a result, the insurers had no duty to defend.

The motion for a declaration compelling a defence was dismissed.

The applicant, who operated a wood shavings business, was sued for negligence after a tree he was cutting down fell and injured the plaintiff.

The applicant sought a declaration that his homeowner's insurer (Northbridge) and his commercial general liability insurer (Economical) had a duty to defend the action.

The court held that Northbridge had no duty to defend because the tree cutting was an occasional pursuit undertaken for financial gain, falling squarely within the policy's business exclusion.

However, the court found that Economical had a duty to defend because the policy covered the applicant as a sole owner of a business, and it was possible the tree cutting arrangement did not constitute a joint venture or partnership that would fall outside coverage.

The applicant's request to appoint independent counsel was dismissed as premature.

On motions under Rule 21, the court considered insurance coverage issues arising from alleged failures of valves installed in condominium HVAC systems that led to flooding claims.

The court held that the duty to defend could be determined on the pleadings and policy wording, notwithstanding unresolved factual disputes relating to waiver, estoppel, misrepresentation, fortuity, and exclusions.

Reading the underlying claims broadly and drawing reasonable inferences, the court found a mere possibility that the defective valves deteriorated progressively from installation through failure, thereby constituting property damage during both insurers' policy periods.

Continental's motion denying any duty to defend was dismissed, and declarations were granted that the claims potentially fell within both policies, with Continental bound to defend.

The appellant insurer appealed a summary judgment ordering it to pay US$15 million for defence costs under a directors' and officers' liability policy.

The dispute centered on whether an exclusion clause (Endorsement #14) unambiguously excluded coverage for claims against the insured's directors and officers acting in their capacity as executives of a bankrupt former subsidiary.

The Court of Appeal found the exclusion clause ambiguous, as it could reasonably be interpreted to either exclude or preserve coverage depending on the capacity in which the executives were sued.

Because the factual matrix did not resolve the ambiguity and the motion judge had not made findings regarding the parties' reasonable expectations, the Court of Appeal allowed the appeal, set aside the summary judgment, and returned the matter to the Superior Court for trial.

Following a summary judgment decision where the plaintiffs successfully obtained a declaration that the primary insurer was required to advance defence costs under a D&O policy, the court determined costs and pre-judgment interest.

The plaintiffs were awarded full indemnity costs against the primary insurer due to the breach of the duty to defend.

The court declined to issue a Bullock or Sanderson Order, finding it was the plaintiffs' decision to continue their claim against the excess insurers, who were awarded partial indemnity costs payable by the plaintiffs.

The appellant insurers appealed an order requiring them to pay 90 per cent of the respondents' defence costs under a directors' and officers' liability insurance policy.

The dispute centered on whether Endorsement 3 of the policy applied to allocate defence costs for 'Hybrid Proceedings' that involved both covered and uncovered conduct, despite the claims not being made during the 2001 policy period.

The Court of Appeal dismissed the appeal, finding that the policy's definition of 'Claim' was not time-limited and that Endorsement 3 applied to allocate 90 per cent of the defence costs to the covered loss.

The respondents brought a motion for security for costs against the appellant.

Following the hearing of the motion, the parties were unable to resolve the issue of costs.

The Court of Appeal awarded costs of the motion to each of the moving parties on a partial indemnity basis, fixed at $7,500 each, payable by the responding party.

The respondents brought a motion for security for costs of the appeal.

The appellant argued the issue was res judicata because a pre-trial motion for security for costs had been dismissed.

The Court of Appeal rejected the res judicata argument, noting that the circumstances before and after a trial are different.

The court found that the appellant, a foreign corporation, failed to discharge its burden of proving it lacked access to funds to post security.

The motion was granted, and the appellant was ordered to post $120,000 in security for costs.

The appellant roofing company appealed a declaration that its insurer had no duty to defend an action brought by a motorcyclist who was injured when a ladder flew off the appellant's truck.

The insurer denied coverage based on an automobile exclusion in a rider to the commercial general liability policy.

The Court of Appeal dismissed the appeal, finding that the insurer was entitled to rely on the rider, which excluded coverage for bodily injury with respect to which a motor vehicle liability policy is required by law to be in effect.

The court held that loading and storing the ladder constituted the use or operation of an automobile, and the underlying claim did not allege concurrent non-automobile-related negligence.

The insurer appealed a motion judge's order requiring it to defend the insured against a claim for bodily injury arising from mould and bacteria exposure, and allowing the insured to choose its own counsel.

The Court of Appeal dismissed the appeal, finding that the policy's concurrent exclusion clause for mould did not clearly and unambiguously narrow the duty to defend where non-excluded perils (bacteria) were also alleged.

The Court also upheld the insured's right to choose its own counsel at the insurer's expense due to a reasonable apprehension of conflict of interest regarding the coverage issue.

The appellant appealed a decision of the application judge finding no prejudice resulting from a lack of notice of a letter.

The Court of Appeal dismissed the appeal, holding there was ample evidence to support the application judge's conclusion that the appellant would not have acted differently had it received notice.

The appellant insurers appealed an order finding they had a duty to contribute to the defence costs of the defendant in a property damage action.

The underlying claim alleged that damage by pyrolisis commenced when a fireplace was first used in 1988 and continued until actual combustion in 1997, after the relevant insurance policies had expired.

The Court of Appeal dismissed the appeal, agreeing with the motions judge that there was a possibility of coverage based on the pleadings, as consequential losses manifesting after a policy expires may still be covered if the damage occurred during the coverage period.

The court also rejected the argument that the pleadings were manipulated to trigger the duty to defend.

The appellant, Lloyd's Underwriters, appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal for reasons given in the related appeal C40338.

The plaintiff, an Ontario resident, was injured in a single-car accident in New York State while a passenger in a vehicle owned and driven by Ontario residents.

The plaintiff brought an action in Ontario.

The motions judge applied the lex fori (Ontario law) as an exception to the general rule of lex loci delicti, reasoning that all parties were from Ontario and applying Ontario's no-fault policy was appropriate.

The Court of Appeal allowed the appeal, holding that the lex loci delicti (New York law) must apply.

The Court found that the narrow exception to the rule in Tolofson v. Jensen is only available to avoid an injustice, and mere differences in public policy or damage recovery schemes between jurisdictions do not constitute such an injustice.