Neil Colville-Reeves

The applicant, having successfully obtained a declaration that the respondent insurer had a duty to defend, sought costs of the application on a substantial indemnity basis.

The applicant argued that the respondent's position was contrary to established law and that the respondent caused undue delay.

The court found that while there were some delays, they did not warrant substantial indemnity costs.

Costs were awarded to the applicant on a partial indemnity scale in the amount of $18,000 inclusive of disbursements and HST.

The applicant construction contractor sought a declaration that an insurer owed it a duty to defend as an additional insured under a project‑specific commercial general liability policy issued to a subcontractor.

The underlying action involved a pedestrian trip‑and‑fall allegedly caused by a sunken paver installed during a streetcar island construction project.

The insurer argued the policy only applied to liability arising from the subcontractor’s operations and that the pleadings did not allege such liability.

The court held that the pleadings contained undifferentiated negligence allegations against all defendants and could potentially attribute liability to the subcontractor’s work.

Applying established duty‑to‑defend principles, the court found that any ambiguity must be resolved in favour of the insured and concluded the insurer had a duty to defend.