Pearl Rombis

The Insurers brought a motion for a declaration that the "Prior Acts Exclusion" in their Directors and Officers (D&O) insurance policies barred coverage for a claim asserted against Just Energy's D&Os.

The claim, filed by a representative plaintiff in a class action, sought unpaid wages and benefits from a period prior to Just Energy's Companies’ Creditors Arrangement Act (CCAA) filing.

The court found the Prior Acts Exclusion to be clear and unambiguous.

It determined that the exclusion applied to acts or omissions committed by anyone prior to the CCAA filing date, and that this interpretation was consistent with the commercial context of the policies, which were intended to cover post-filing D&O liability during insolvency.

The court concluded that applying the exclusion did not nullify the policy's main purpose or contradict the reasonable expectations of the parties.

The Insurers' motion was granted, and the representative plaintiff's request for relief against the Insurers was denied.

Echelon General Insurance Company brought two motions: one to strike paragraphs from the plaintiffs' solicitor's affidavit for lack of personal knowledge/source, and another to stay the action due to the plaintiffs' alleged failure to disclose a Pierringer agreement from a separate construction action.

The court dismissed the motion to strike, finding the affidavit information uncontested background facts.

The court also dismissed the motion to stay, ruling that the "Aecon principles" of disclosure of settlement agreements do not extend to settlements in entirely separate proceedings where the non-settling party (Echelon) was not a party and had opportunities to protect its interests (e.g., by joining third parties or pursuing subrogated claims) but failed to do so.

Costs were awarded to the plaintiffs.

The applicants, CRD Construction Ltd. and Rob Leshuk, sought a declaration that their insurers, Aviva Insurance Company of Canada and Economical Mutual Insurance Company, had a duty to defend them against a counterclaim and to reimburse their legal fees.

The court found that Economical had waived its right to deny the duty to defend due to a reservation of rights letter and its acceptance.

However, the court found that the applicants' breaches of the duty of cooperation constituted non-compliance, making relief from forfeiture unavailable against Aviva, and that the applicants failed to prove their conduct was reasonable for relief from forfeiture against either insurer regarding the duty of cooperation.

Economical was ordered to defend and reimburse the applicants, while the application against Aviva was dismissed.

Following the dismissal of the plaintiff's action for insurance coverage, bad faith, and professional negligence, the successful defendants sought costs.

Economical sought substantial indemnity costs based on unaccepted offers to settle.

The court rejected this, finding no egregious misconduct by the plaintiff, and awarded costs on a partial indemnity scale.

The court fixed the partial indemnity hourly rates at 60% of actual rates and assessed the reasonableness of the time and disbursements claimed, including expert witness fees.

The court awarded $356,452.49 in costs to Economical and $183,979.82 to FCA, emphasizing the objective of fixing an amount that is fair and reasonable for the unsuccessful party to pay.

The City of Markham brought an application seeking a declaration that AIG had a duty to defend it in an underlying personal injury action, and that the City was entitled to appoint independent counsel at AIG's expense due to a conflict of interest.

AIG conceded the duty to defend but disputed the right to independent counsel, pre-tender costs, and argued Lloyd's should share defence costs.

The court found a reasonable apprehension of conflict of interest, entitling the City to independent counsel.

The court denied pre-tender costs based on policy wording and held AIG responsible for all defence costs, including uncovered claims, subject to a right of reimbursement from Lloyd's.

The City of Markham brought an application seeking a declaration that AIG had a duty to defend it in an underlying personal injury action, and that the City was entitled to appoint independent counsel at AIG's expense due to a conflict of interest.

AIG conceded the duty to defend but disputed the right to independent counsel, pre-tender costs, and argued Lloyd's should share defence costs.

The court found a reasonable apprehension of conflict of interest, entitling the City to independent counsel.

The court denied pre-tender costs based on policy wording and held AIG responsible for all defence costs, including uncovered claims, subject to a right of reimbursement from Lloyd's.

Sky Solar, a solar energy project developer, sued its contractor's insurer (Economical) and insurance broker (FCA) after two fires involving transformers at its solar projects.

Sky Solar was an additional insured under the contractor's commercial general liability (CGL) policy.

After the second fire, Sky Solar settled with the project buyer (Firelight) for remediation costs and lost income, then sought indemnity from Economical.

Economical denied coverage, arguing Sky Solar's liability did not arise from the contractor's operations and that Sky Solar breached a policy condition by settling without consent.

Sky Solar also claimed negligence and bad faith against FCA for issuing certificates of insurance.

The court dismissed Sky Solar's action against both Economical and FCA, finding no coverage under the policy and no breach of duty by the broker.

Her Majesty the Queen in Right of Ontario (HMQ), as an additional insured under an AIG policy, applied for an order entitling it to appoint independent counsel at AIG's expense for two underlying actions and for reimbursement of pre-tender legal and administrative expenses.

AIG acknowledged its duty to defend but asserted its right to select counsel and denied pre-tender costs.

The court dismissed HMQ's application, finding that AIG's "split file" protocol adequately addressed any "party-based" conflict of interest and that HMQ failed to establish a "coverage-based" conflict.

The court also held that pre-tender defence costs were not recoverable due to voluntary payment wording in the policy.