Sébastien A. Kamayah

Three consolidated applications concerning the duty of various insurers to defend Ontario in connection with a bridge collapse in Elgin County in 2018.

Ontario sought orders requiring Aviva Insurance Company of Canada and Royal & Sun Alliance Insurance Company of Canada to defend two related lawsuits and to share defence costs equally.

The insurers argued they had no duty to defend or, alternatively, that defence costs should be allocated on a "time on risk" basis.

The court found that Aviva and RSA owed a duty to defend based on the allegations of property damage to anchor rods occurring during their respective policy periods, despite the loss of use occurring after the policies expired.

The court rejected the "all sums" approach and adopted a "time on risk" allocation, requiring Aviva to pay 5.5% and RSA to pay 11.1% of defence costs.

The secondary applications by Aviva and RSA against AIG and St. Paul were dismissed as moot.

This appeal addressed whether two insurers, AIG and Lloyd's, had a duty to defend a mutual policyholder (the City of Timmins) in a progressive property damage claim.

The key issues were the role of "premature" evidence in duty to defend analysis, the interpretation of an "Expected or Intended Injury" exclusion clause, and whether a "crystallizing event" (an AMEC Report) triggered this exclusion.

The Court of Appeal upheld the application judge's decision, finding that the AMEC Report was "premature" evidence and not a "crystallizing event" that would negate Lloyd's duty to defend.

The court affirmed that the underlying claim was based on negligence, not intentional conduct, and therefore the exclusion clause did not apply, triggering Lloyd's duty to defend.

The applicant and respondents both provided professional liability insurance to a nurse facing a disciplinary complaint from the College of Nurses of Ontario.

Both insurers acknowledged a duty to defend.

The applicant sought an order that the respondents share the defence costs equally, arguing their 'other insurance' clauses were irreconcilable.

The court found that the 'other insurance' clause in the applicant's policy only applied to claims for compensatory damages ('professional incidents'), not disciplinary complaints.

Therefore, the clauses could be read together, making the applicant the primary insurer for the disciplinary complaint.

The application was dismissed.

This endorsement concerns a request to reconsider a costs disposition made on July 27, 2021.

The moving party for the reconsideration (respondents in the underlying appeal) had their costs submissions filed late and not forwarded to the panel.

The court reviewed the submissions but found no reason to vary the original costs order, confirming the previous disposition.

AIG Insurance Company of Canada brought an application seeking equitable contribution from Lloyd's Underwriters towards the cost of defending the City of Timmins in an underlying property damage action.

AIG and Lloyd's provided consecutive liability insurance policies to the City.

Lloyd's denied coverage, arguing the damage was not an 'occurrence' or fell under the 'expected or intended' exclusion due to a preliminary engineering report received by the City.

The court found the engineering report was not definitive enough to crystallize the loss or make the ongoing damage expected or intended.

The court held that the underlying claim raised a mere possibility of coverage, triggering Lloyd's duty to defend, and ordered Lloyd's to pay 50% of the defense costs.

AIG Insurance Company of Canada sought substantial indemnity costs against The Corporation of the City of Markham and Lloyd’s Underwriters following a motion for reconsideration of an appeal decision.

The court found the reconsideration motion to be entirely without merit, having put AIG to needless expense.

Consequently, the court awarded AIG $13,000 in substantial indemnity costs, inclusive of disbursements and taxes, payable forthwith.

The respondents (moving parties on the motion) sought reconsideration of a Court of Appeal decision rendered 15 months prior.

The motion was dismissed as lacking merit, with the court emphasizing the principle of finality.

Reconsideration is rarely granted, especially when the moving party has already unsuccessfully sought leave to appeal to the Supreme Court of Canada on the same arguments, which was dismissed.

This appeal concerns a dispute between two insurers, AIG Insurance Company of Canada and Lloyd's Underwriters, regarding their respective duties to defend the City of Markham in a personal injury action.

The application judge had found AIG solely responsible for the defence and denied AIG the right to participate in the defence.

The Court of Appeal allowed the appeal, holding that both AIG and Lloyd's had a concurrent duty to defend the City, and must share defence costs equally, subject to reallocation at the conclusion of the action.

Furthermore, the Court found that AIG has a right to participate in the defence, including retaining and instructing counsel, provided a "split file" protocol with additional safeguards is implemented to manage potential conflicts of interest.