Court of Appeal for Ontario

Citation: The Economical Insurance Group v. Fleming, 2009 ONCA 112

Date: 20090205

Docket: C48294

Before: Laskin, Feldman and Cronk JJ.A.

Between

The Economical Insurance Group

Applicant (Appellant)

and

Kenneth Fleming and Gabriele Fleming and Rachel Guay, a minor by her Litigation Guardian, Christina Guay

Respondents (Respondents/Intervener)

Counsel:

Jack F. Fitch and Tyler P. Dellow, for the appellant

John H. Cunningham, for the respondents

Michael L. Bennett, for the intervener

Heard: February 3, 2009

On appeal from the order of Justice K.A. Hoilett of the Superior Court of Justice dated September 27, 2007

APPEAL BOOK ENDORSEMENT

[1] We find no error in the motion judge’s conclusion on waiver. We add that, in our view, this conclusion turns narrowly on the absence of a non-waiver agreement and the particular unambiguous wording and timing of the August 23, 2006 letter.

[2] Our decision is not intended to make any pronouncement on the general effect of a reservation of rights letter.

[3] Accordingly, the appeal is dismissed with costs to the respondent in the amount of $10,000, all inclusive, and costs to the intervener in the amount of $3,000, all inclusive.