Court of Appeal for Ontario
Date: 2025-05-07
Docket: COA-24-CV-0452 & COA-24-CV-0621
Panel: Grant Huscroft, J. George, L. Favreau JJ.A.
Parties
COA-24-CV-0452
Between:
Brian Kashin, Alison Kashin and Sheryl Lipton
Plaintiffs
and
G.E.S. Construction Limited and Land Pride Group Inc.
Defendants (Appellant)
and
Can-Sure Underwriting Ltd., Kenair Apartments Limited, Toronto Standard Condominium Corporation No. 1516, David Fortier, Marcello Dias and Lloyd’s Underwriters
Third Parties (Respondent)
COA-24-CV-0621
And Between:
Toronto Standard Condominium Corporation No. 1516, Elizabeth Margaret Siemens, Lesley Binstock Offman, Kenair Apartments Limited, Arnold Schonberg, Diane Knowlton, Michael Knowlton, Irene Devine, Paul Halpern, Natalie Stein, Bernard Irvine Ghert, Jo’ann Alderson, Susan Muskat, Sheryl Pamela Lipton, Marni Ellen Lokash, Joseph Schachter, Roberta Schachter, Alison Maayan Kashin, Felice Guberman, John Gable and Barbara Gable
Plaintiffs
and
G.E.S. Construction Limited, Land Pride Group Inc., John Doe Contractor and John Doe Sub-Contractor
Defendants (Appellant)
and
Can-Sure Underwriting Ltd., Kenair Apartments Limited, David Fortier, Lloyd’s Underwriters and Marcello Dias
Third Parties (Respondent)
Counsel:
Christopher R. Dunn, for the appellant G.E.S. Construction Limited
Gerry Gill, for the respondent Lloyd’s Underwriters
Heard: 2025-05-02
On appeal from the orders of Justice Markus Koehnen of the Superior Court of Justice, dated July 25, 2024 and September 9, 2024.
Reasons for Decision
Introduction
[1] G.E.S. Construction Limited (“G.E.S.”) appeals from the orders of the motion judge dismissing its motion for a declaration that Lloyd’s Underwriters (“Lloyd’s”) has a duty to defend and indemnify it under a 2015 insurance policy between Land Pride Group Inc. (“Land Pride”) and Lloyd’s (the “2015 Policy”), to which G.E.S. was added as an additional insured.
[2] G.E.S. argues that Lloyd’s attempt to void the policy is of no force or effect. It argues that the motion judge erred by:
- failing to find that Lloyd’s waived its right to void the 2015 Policy;
- failing to find that Lloyd’s was estopped from voiding the 2015 Policy; and
- failing to address the pressure placed on Land Pride by Lloyd’s to withdraw its claim for coverage under the 2015 Policy.
[3] We dismissed the appeal without calling on the respondent. These are the reasons for our decision.
Lloyd’s Did Not Waive Its Right to Void the 2015 Policy
[4] The appellant argues that Lloyd’s knew as of June 10, 2016 that it could void the policy ab initio for material misrepresentation, but instead of doing so it sought to retain the premium for the 2015-16 year and renew the policy for 2016-17 without any restrictions on coverage. The appellant submits that Lloyd’s did not void the policy ab initio and return the premium even after Land Pride cancelled the 2015 Policy. The appellant characterizes these as active steps that clearly and unequivocally validated the 2015 Policy.
[5] We do not agree.
[6] The motion judge applied the test for waiver set out by the Supreme Court in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490. He found that there was no evidence that Lloyd’s had an unequivocal and conscious intention to abandon its right to void the 2015 Policy. He found that Land Pride knew all along that Lloyd’s considered that it had no liability under the 2015 Policy. Moreover, Lloyd’s actions in renewing the 2015 Policy and accepting premiums occurred in the context of resolving Lloyd’s obligation to respond to the claim made under the 2015 Policy. The motion judge carefully reviewed all the relevant circumstances and communications and found that Lloyd’s always maintained the position that the appellant must withdraw the claim if the renewal was going to work.
[7] The appellant’s argument is, in essence, an invitation to this court to re-do the motion judge’s analysis. That is not our function on appeal. The motion judge was entitled to conclude that, although Lloyd’s timing was not perfect, its brief delay did not preclude it from voiding the 2015 Policy for misrepresentation. There is no error here, let alone palpable and overriding error that would permit this court to intervene.
Lloyd’s Was Not Estopped from Voiding the 2015 Policy
[8] The appellant argues that Land Pride relied to its detriment on Lloyd’s renewal of the 2015 Policy for the 2016-17 year. It says that it was left without coverage between the renewal date and the date the 2016-17 policy was cancelled. The appellant argues that this exposure constituted detrimental reliance sufficient to estop Lloyd’s from voiding the 2015 Policy.
[9] The motion judge found no evidence that Land Pride took or failed to take any steps because of Lloyd’s conduct. In any event, no detrimental reliance could have arisen with respect to the 2015 Policy because Land Pride could not have obtained replacement coverage under that policy after the loss occurred. These findings were available on the record and are entitled to deference. The appellant’s argument must be rejected.
The Motion Judge Did Not Fail to Address Whether Lloyd’s Pressured Land Pride to Withdraw Its Claim for Coverage
[10] The appellant argues that Lloyd’s improperly pressured Land Pride to withdraw its claim for coverage in exchange for Lloyd’s agreement to maintain the 2015 Policy and offer to renew for the 2016-17 term. The appellant describes this as bad faith conduct that ought to have precluded Lloyd’s from voiding the 2015 Policy.
[11] There is no merit to this submission. The motion judge carefully reviewed the evidence. He found that Lloyd’s sought to reach an agreement to withdraw the claim. Lloyd’s never deviated from its position as to the appellant’s misrepresentation. The appellant offers no reason why Lloyd’s was not entitled to act as it did beyond bald suggestions that its actions were taken in bad faith.
Disposition
[12] Accordingly, the appeal is dismissed.
[13] The respondent is entitled to costs fixed at $12,500, all inclusive.
“Grant Huscroft J.A.”
“J. George J.A.”
“L. Favreau J.A.”