Mark M. O’Donnell

An appeal concerning the vicarious liability of co-owners of a motor vehicle under the Highway Traffic Act and the scope of insurance coverage under the Insurance Act.

The appellant insurance company argued that where two co-owners jointly own a vehicle, only the co-owner who consented to a third party's possession of the vehicle should be vicariously liable for negligent operation by that third party.

The court rejected this argument, holding that if either co-owner consents to possession by a non-owner, both co-owners are vicariously liable under section 192(2) of the Highway Traffic Act.

The court also clarified that section 239(1) of the Insurance Act does not create liability but merely requires coverage of liabilities imposed by law.

This endorsement concerns a joint motion brought by the court-appointed Monitors for JTI-Macdonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. in their ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings.

The Monitors sought a Sanction Protocol Order to establish the date for the Sanction Hearing, ratify the litigation timetable, approve the dissemination of the Agenda and Sanction Hearing procedure, approve the Omnibus Sanction Hearing Notice, and set the deadline for Sanction Hearing Objection Notices.

The motion was unopposed and was granted by the court, with three orders signed.

These supplementary reasons correct a previous decision regarding liability under s. 192 of the Highway Traffic Act.

The court, upon discovering a Court of Appeal decision (Mazur v. Elias et al.), clarified that co-owner consent is not required for liability to attach to both owners under the Act.

This correction amends paragraph 29 of the original reasons, affirming that liability attaches to co-owners regardless of consent flow.

The plaintiff and her insurer brought a motion for a determination of a question of law regarding whether the "personal" consent of a co-owner is required for a motor vehicle policy to provide insurance coverage for liability arising from the use of an insured automobile.

The court examined the interplay between section 239(1) of the Insurance Act and section 192(2) of the Highway Traffic Act, particularly in light of the 1990 amendment to the Insurance Act which removed the word "personally." The court determined that the personal consent of the co-owner was not required, as consent could flow through an intermediary, and the two statutory schemes operate independently.

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.

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.

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.

The applicant insurer sought a declaration that it had no duty to defend or indemnify the respondent insured following a motor vehicle accident in California, arguing the insured misrepresented his address and vehicle use.

The court dismissed the application as premature and too broad, noting that under sections 233 and 258 of the Insurance Act, an injured third party maintains the right to collect a judgment against the insurer up to statutory minimums despite the insured's misrepresentation.

The dismissal was without prejudice to the insurer revisiting the issue if claims materialize.

The Applicants sought costs following a partial success in an application concerning insurance coverage, specifically the duty to defend and equitable allocation among insurers.

The court awarded full indemnity costs to the Applicants against AIG and Royal & Sun Alliance Insurance Company of Canada (RSA) for the duty to defend issue, finding the Applicants overwhelmingly successful on that point.

Costs related to the exhaustion of self-insured retentions (SIRs)/deductibles were deferred to a future trial of the issue, as neither party fully succeeded.

Zurich Insurance Company Ltd. was ordered to pay reduced costs due to its partial success on a specific "Single Retention Endorsement" interpretation.

Following the dismissal of an application for a declaration of a duty to defend, the successful respondent insurer sought costs on a substantial indemnity scale.

The court declined to award substantial indemnity costs, finding no malicious or unreasonable conduct and noting ambiguity in the respondent's offer to settle.

The court fixed costs on a partial indemnity scale but reduced the award by 25% due to divided success, as the applicants had to unnecessarily address an exclusion that the respondent had implicitly abandoned.

Costs were fixed at $7,482.62.

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 applicants, R.C. and J.M., sought a declaration that their insurer, Western Assurance Company, had a duty to defend them in an underlying action.

They were sued for alleged negligence in failing to prevent their son's schoolyard assault on a classmate.

Western denied coverage, citing policy exclusions for intentional acts and failure to prevent abuse.

The court found that while the intentional act exclusion did not apply to the parents' negligence claims (as per Unifund and Durham), the "failure to prevent abuse" exclusion did apply.

The court determined that "assault" was synonymous with "physical abuse" in the context of the policy, and the substance of the allegations fell within this exclusion.

Consequently, the application for a duty to defend was dismissed.

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 appellant sought to set aside a motion judge's order dismissing her motion to set aside the administrative dismissal of her appeal.

The appeal had been administratively dismissed twice due to the appellant's repeated failure to meet perfection deadlines, despite extensions.

The Court of Appeal dismissed the appellant's motion, finding no basis to interfere with the motion judge's discretion, noting the extensive delay, the unconvincing justification for non-perfection, and the lack of proof for the appellant's claims of material tampering or respondent non-cooperation.

Two consolidated appeals concerning insurance coverage and the duty to defend.

The application judge found that The Guarantee Company of North America and The Co-operators General Insurance Company had a duty to defend Ryan Reeb in an underlying negligence action, and ordered that three insurers (including Royal & Sun Alliance) share defence costs equally on a going-forward basis.

The appellants challenged the orders on grounds of limitation periods and contractual restrictions.

The Court of Appeal dismissed the appeals, upholding the application judge's reasoning that the duty to defend is an ongoing obligation applied on a rolling basis, that the limitation period does not bar claims for prospective costs, and that the equal cost-sharing arrangement was properly determined.

Ryan Reeb sought a declaration that his homeowner's insurers (The Guarantee Company of North America and The Co-operators General Insurance Company) had a duty to defend him in a negligence action arising from a BB gun incident.

The court found the underlying claim was framed in negligence, not an intentional tort, and that extrinsic evidence should not be considered at this preliminary stage of determining the duty to defend.

The duty to defend was granted.

In a companion application, Royal & Sun Alliance Insurance Company of Canada (RSA), Reeb's other insurer, sought equitable contribution for future defence costs from Guarantee and Co-operators.

The court granted this, rejecting a limitation period argument and ordering the three insurers to share future defence costs equally.

The plaintiff, Zheng Lou, brought a two-branched motion: (1) for court approval of a settlement reached with defendant Baomin Yi, and (2) to convert her individual action against London Life Insurance Company into a class action.

The court dismissed the motion for settlement approval, finding no jurisdiction to approve settlements in regular actions.

The court also dismissed the motion to convert the action into a class proceeding, holding that an additional threshold test beyond Rule 26 of the Rules of Civil Procedure must be met for such conversions.

This threshold was not satisfied due to serious limitation period issues, problems with the proposed class definition, common issues, preferable procedure criteria, and the suitability of the plaintiff as a representative.

Following a trial in which the plaintiff’s claim and related cross-claims were dismissed, the court determined the appropriate costs award.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed the reasonableness of the successful defendant’s bill of costs on a partial indemnity basis.

The court scrutinized preparation time, trial attendance, and written submissions, reducing several claimed amounts and rejecting certain disbursements including unexplained agency fees, meal expenses, legal research charges lacking detail, and stationery costs treated as overhead.

The court fixed reduced amounts for several litigation stages and limited disbursements.

Counsel were directed to calculate the final payable costs based on the court’s determinations.