Rory Barnable

SIR Corp. appealed the dismissal of its application for insurance coverage for business losses and food spoilage incurred during the COVID-19 pandemic due to government-imposed in-person dining restrictions.

The appellant sought coverage under "Civil or Military Authority" and "Ingress/Egress" clauses of its "all-risk" property insurance policy with Aviva.

The Court of Appeal dismissed the appeal, finding that the policy required direct physical loss or damage for coverage, which the government orders did not cause.

It also held that "catastrophe" in the policy was limited to events similar to "conflagration" (large-scale physical destruction) and did not include the pandemic.

The court also denied leave to appeal the costs award, upholding the application judge's decision.

Following the dismissal of the applicants' insurance coverage application, the parties made written submissions on costs.

The respondent sought $100,000 based on a pre-hearing costs agreement, or alternatively $254,566.28 on a partial indemnity basis.

The applicants argued the agreement should not be enforced because the respondent's evolving position caused them to incur significant additional costs.

The court enforced the costs agreement, finding no breach or vitiating factors, and awarded the respondent $100,000 for the application plus $8,136 for the costs submissions.

The appellant challenged a municipal by-law regulating the destruction or injury of trees and woodlands, arguing it conflicted with Crown patents.

The Court of Appeal upheld the by-law, finding that Crown patents, as grants of title, do not immunize land or owners from municipal regulation exercised under the Municipal Act.

The court also assumed, without deciding, that the appellant had standing.

The appeal was dismissed.

The Applicants sought a declaration that the Respondents were responsible for coverage of a professional liability claim under an excess liability policy.

The policy was a "claims made and reported" policy, requiring claims to be made and reported during the policy period.

The Applicants' insurance broker failed to report the claim to the Respondents until three years after the policy period expired.

The court found that the "claims made and reported" requirement was a condition precedent to coverage and was not met.

The court rejected arguments that the Respondents suffered no prejudice or that other policy conditions were inconsistent.

The court also declined to grant relief from forfeiture, noting that the Applicants would not suffer prejudice as their broker had admitted negligence and agreed to indemnify them.

The application was dismissed, and costs were awarded to the Respondents.

The parties disagreed on the value of a fire loss and proceeded to an appraisal under s. 128 of the Insurance Act.

The insurer nominated a single candidate for umpire and refused to consider any alternatives proposed by the insured.

The insurer brought an application to appoint its nominee, while the insured brought a cross-application seeking an order that the parties agree on an umpire or the insurer select from her list.

The court dismissed the insurer's application, finding that its refusal to collaborate and insistence on its sole nominee created a reasonable apprehension of bias.

The court granted the insured's cross-application.

The applicant restaurant chain sought a declaration of coverage under its commercial 'all risks' insurance policy for business interruption losses caused by government-mandated closures during the COVID-19 pandemic.

The applicant argued that coverage was triggered under the policy's civil authority and ingress/egress extensions.

The court dismissed the application, finding that the policy required 'direct physical loss or damage' to trigger coverage.

The court held that the COVID-19 virus and the resulting government orders did not cause direct physical loss or damage to the insured's property, and therefore the losses did not fall within the policy's coverage.

The applicant sought to quash the Regional Municipality of Niagara's Woodland Conservation Bylaw, arguing it was ultra vires, conflicted with a historic Crown Patent and provincial statutes, and was impermissibly vague.

The applicant contended that the Crown's previous relinquishment of tree reservations meant the municipality could not regulate tree destruction on the property.

The Superior Court of Justice dismissed the application, finding the bylaw was a valid exercise of the municipality's regulatory powers under section 135 of the Municipal Act.

The court held that the Crown Patent did not supersede provincial or municipal authority to regulate land use, and the bylaw's definitions were sufficiently clear.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action regarding a defective boiler system installation, arguing the claim was statute-barred by the two-year limitation period.

The plaintiff argued it did not discover the fundamental incompatibility of the boiler systems until it received a draft engineering report in July 2015, having previously relied on advice that the issues were minor operational problems.

The court dismissed the motion, finding a genuine issue for trial regarding when the plaintiff had actual or constructive knowledge of the material facts giving rise to the claim, particularly given the plaintiff's reliance on the defendants' professional advice.

The applicants brought a motion to oppose the confirmation of a Master's report regarding the amount owing under a boiler and machinery insurance policy issued by the respondent.

The applicants argued the Master erred in law by distinguishing between the valuation clauses in their property policies and the respondent's policy, and by accepting the respondent's valuation evidence which allegedly factored in depreciation improperly.

The Superior Court of Justice dismissed the motion, finding no error in the Master's conclusion that the respondent's policy required replacement with property of 'like kind, capacity, size and quality', which differed from the 'new for old' replacement cost coverage in the applicants' policies.

Following a four-day reference in an insurance application, the successful respondent sought costs on a full or partial indemnity basis.

The applicants argued costs should be reserved to the judge hearing the confirmation of the report.

The Master held that having presided over the reference, they were in the best position to fix costs.

The Master rejected the request for full indemnity costs, finding no conduct warranting such an award, and fixed partial indemnity costs at $28,000 payable to the respondent, subject to confirmation of the report.

Donset Construction Limited moved to withdraw admissions regarding the quantification of lien claims and to vary summary judgment orders previously granted in favour of MGI Construction Group and Venture Excavating & Contracting Ltd. Donset argued its failure to appear at the original summary judgment motions was due to mistake.

The court denied the motion to vary, finding Donset's non-attendance was not due to accident or mistake but deliberate avoidance.

Although leave to withdraw admissions was granted for expediency, the court found that even if the new evidence had been considered, it would not have changed the original summary judgment amounts.

The motions were dismissed with costs awarded to MGI, Venture, and Strela Trucking Ltd.

This case involved a reference to determine the valuation of an insurance loss following a water damage incident at the Children’s Hospital of Eastern Ontario (CHEO).

The applicants, property insurers (HIROC, HML, FM), sought to recover the amount they paid to CHEO from the respondent, a boiler and machinery insurer (RSA).

The court found that the applicants' valuation was based on their own replacement cost policies, which differed from RSA's policy mandating repair or replacement with property of 'like kind, capacity, size and quality.' The court accepted RSA's valuation of $104,541.85, which was significantly lower than the applicants' claim of $732,031.41, as it was the only valuation that properly applied the RSA policy's terms.

The defendants brought a motion to compel answers to questions refused on the examination for discovery of the plaintiff Gabriella Brockie.

The plaintiffs had refused to answer based on relevance and claims of solicitor-client, litigation, and common interest privilege.

The court found that solicitor-client privilege had been waived by implication due to fairness, as the plaintiffs were seeking reimbursement of legal costs under an insurance policy, thereby putting the nature of those costs directly in issue.

Litigation privilege was deemed inapplicable because the underlying Competition Bureau investigation had concluded, and the current action for indemnity did not share its essential purpose.

Common interest privilege was also rejected.

The motion to compel answers was granted, and a sealing order was issued for any answers required to be filed with the court.

The defendant brought a motion to set aside an order noting him in default and to vary or set aside the order pursuant to Rules 19.08, 19.03, and 37.14 of the Rules of Civil Procedure.

The court reviewed the circumstances leading to the default, including the defendant’s failure to retain new counsel or file a notice of intention to act in person after his counsel was removed from the record and his decision to leave the country shortly before a motion to strike his defence was heard.

The defendant provided no satisfactory explanation for failing to attend the motion or arrange representation despite receiving notice that the opposing party would not consent to an adjournment.

The court held that the defendant failed to demonstrate an adequate explanation for the default or establish the necessary factors to justify setting aside the noting in default.

The motion was dismissed and costs were awarded to the plaintiff.

In a certified class proceeding arising from explosions at a propane facility, class counsel moved for an order restraining an insurer and its counsel from communicating directly with class members during the court‑approved opt‑out period.

The insurer’s counsel had sent letters stating the insurer would opt insured class members out of the class action and pursue their claims through a subrogated action.

The court held the communications were misleading, interfered with the solicitor‑client relationship between class counsel and class members, and violated the Rules of Professional Conduct.

The court reaffirmed that insureds retain control of litigation until fully indemnified for both insured and uninsured losses.

An order was made prohibiting the insurer and its counsel from communicating with affected class members without court approval or consent of class counsel during the opt‑out period.

Following a complex motion regarding insurance coverage for asbestos claims where the plaintiff was unsuccessful, the successful defendant insurers sought their costs.

The plaintiff argued for a reduction based on divided success on factual issues and refusal to admit facts.

The court rejected the plaintiff's arguments, finding the defendants were the clear winners and their refusal to admit facts was not unreasonable.

The court awarded partial indemnity costs to the defendants, making some reductions to specific bills for duplication of effort among multiple counsel, totaling approximately $546,887.

The plaintiffs sought certification of a proposed class action arising from explosions at a propane facility in Toronto that allegedly caused personal injury, property damage, and evacuation of nearby residents.

The court considered the certification requirements under s. 5 of the Class Proceedings Act, 1992.

It held that the pleadings against certain landlord defendants failed to disclose a viable cause of action because the allegations relying on agency, single‑group enterprise, and alter‑ego theories lacked material facts capable of piercing the corporate veil.

Those pleadings were struck with leave to amend and the certification motion against those defendants was adjourned.

The proceeding was otherwise certified as a class action against the remaining defendants, with common issues approved and representative plaintiffs appointed.

In an appeal from Ontario, the appellants sought a stay of a defamation action on the basis of lack of jurisdiction and forum non conveniens.

The Court held that Ontario had a real and substantial connection because the alleged tort was published in Ontario and the plaintiff pleaded publication and reputational harm in that forum.

The Court also held that the appellants failed to show Quebec was clearly more appropriate, giving deference to the motion judge’s discretionary forum analysis.

The Court discussed concerns about forum shopping and noted, without deciding, that choice-of-law rules in multijurisdictional defamation may warrant future refinement.

The appeal was dismissed with costs.