COURT FILE NO.: CV-22-00681532-0000 DATE: 20240405 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: WAWANESA MUTUAL INSURANCE COMPANY Applicant
- and – DAVE WATSON Respondent
Counsel: Jeffrey R. Le Roy for the Applicant Mark Barrett for the Respondent
HEARD: April 4, 2024
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] On August 22, 2015, the respondent, David Watson, was operating a motorboat that collided with another motorboat on Lake Scugog. Mr. Watson was sued for negligence.
[2] In this application, the applicant, Wawanesa Mutual Insurance Company, Mr. Watson’s liability insurer, seeks an Order declaring that it does now owe Mr. Watson a duty: (a) to defend or (b) to indemnify him under the provisions of a homeowner’s policy, no. 6058945, with respect to three actions brought against Mr. Watson as a result of the boating accident.
[3] In this application, in response, Mr. Watson seeks an Order that Wawanesa has both a duty to defend and also a duty to indemnify, although in argument, Mr. Watson conceded that there was no duty to indemnify. Mr. Watson submits, however, that Wawanesa’s duty to defend was triggered and that Wawanesa waived any right to refuse to defend him. He, therefore, seeks a declaration that Wawanesa continues to have a duty to defend and he seeks his costs for having to defend after Wawanesa discontinued providing him with a defence.
[4] I agree with Mr. Watson. For the following reasons, I declare that Wawanesa has a duty to defend Mr. Watson in the boating accident litigations; however, I declare that Wawanesa does not have a duty to indemnify Mr. Watson in the event that it is determined that he is indeed liable in negligence, in whole or in part, for the boating accident. I order that Wawanesa resume providing Mr. Watson with a defence notwithstanding that it has no duty to indemnify.
[5] With respect to costs and with respect to the defence costs incurred by Mr. Watson after Wawanesa’s counsel got off the record, the parties shall make submissions in writing beginning with Mr. Watson’s submissions within twenty days of the release of these Reasons for Decision followed by Wawanesa’s submissions within a further twenty days.
B. Procedural Background
[6] In May 2022, Wawanesa commenced this application. Its application was supported by: (a) the affidavit dated August 23, 2023 of Ryan Haase; (b) the affidavit dated May 2, 2022 of Samantha Mankaran; and (c) the affidavit dated May 5, 2022 of Elizabeth Scott.
[7] Mr. Haase is a Senior Casualty Claims Representative of Wawanesa. He was the adjuster on Mr. Watson’s file from April 8, 2019 to September 2021. His predecessor on the file was Ilan Iankov, who is no longer employed with Wawanesa.
[8] Ms. Mankaran is an Underwriting Technical Specialist – Personal Lines employed by Wawanesa.
[9] Ms. Scott is a lawyer with Smockum Zarnett LLP, Wawanesa’s lawyers for this application.
[10] The application was opposed by Mr. Watson. He relied on the affidavit dated January 20, 2023 of Christine Galea and his own affidavit dated February 3, 2023.
[11] Ms. Galea is a lawyer of the law firm Dolden Wallace Folick LLP. She formerly was a lawyer at Reisler Franklin LLP. Ms. Galea was retained by Mr. Watson with respect to the motorboat vehicular negligence claims brought against Mr. Watson. Ms. Galea was also retained by Lori Watson, Mr. Watson’s sister, who was mistakenly alleged to be the owner of the boat being operated by Mr. Watson.
[12] On September 27, 2023, Ms. Galea was cross-examined.
[13] On January 17, 2024, Mr. Haase was cross-examined.
[14] The application was argued on April 4, 2024.
C. Facts
[15] On July 1, 2013, Ms. Watson sold a 23 foot Doral Phazer motorboat to her brother Mr. Watson. The motorboat was equipped with a 350 hp inbound, outboard engine with eight cylinders. Mr. Watson intended but did not register his ownership of the boat.
[16] At the time of the purchase of the boat, Mr. Watson had a homeowner’s insurance policy issued by Wawanesa (Policy No. HPC7278385). For present purposes the following provisions of the policy are relevant:
SECTION II - LIABILITY COVERAGE
This is the part of the policy "you" look to for protection if "you" are sued.
This insurance applies:
(1) to accidents or "occurrences" which take place during the period this policy is in force;
(2) […]
COVERAGE E – LEGAL LIABILITY
"We" will pay all sums which "you" become legally liable to pay as compensatory damages because of unintentional "bodily injury" or "property damage" arising out of:
(1) "your" personal actions anywhere in the world;
DEFENSE, SETTLEMENT, SUPPLEMENTARY PAYMENTS
If a claim is made against "you" for which "you" are insured under COVERAGE E, "we" will defend "you", even if the claim is groundless, false, or fraudulent. "We" reserve the right to select legal counsel, investigate, negotiate and settle any claim if "we" decide this is appropriate. "We" will pay only for the legal counsel "we" select.
"We" will also pay:
(1) all expenses which "we" incur;
(2) all costs charged against "you" in any suit insured under COVERAGE E;
(3) any interest accruing after judgment on that part of the judgment which is within the Amount of Insurance of COVERAGE E;
(4) […]
(5) […]
SPECIAL LIMITATIONS
WATERCRAFT AND MOTORIZED VEHICLES
WATERCRAFT AND MOTORIZED VEHICLES “YOU” OWN
You are insured against claims arising out of “your ownership” use or operation of
(1) watercraft, including their attachments, equipped with an outboard motor or motors, of not more than 25 hp in total, when used with or on a single watercraft;
(2) watercraft, including their attachments, equipped with any other type of motor of not more than 50 hp;
(3) non-motorized watercraft, including their attachments, of not more than 8 meters in length;
Any other watercraft is insured only if liability coverage for it is shown on the Declarations. If the watercraft or motor with which it is equipped is acquired after the effective date of the policy, you will be insured automatically for a period of 30 days only from the date of acquisition.
WATERCRAFT AND MOTORIZED VEHICILES “YOU” DO NOT OWN
“You” are also insured against claims arising out of your use or occupation of:
(1) Any type of watercraft;
(2) […]
Provided that the motorized vehicle or watercraft is now owned by any person insured by this policy.
[17] On August 22, 2015, Mr. Watson was operating his motorboat on Lake Scugog. Shannen Gulanowski and her daughter Sierra Wheeler, a minor, were passengers in Mr. Watson’s motorboat. Unfortunately, Mr. Watson’s boat was in an accident with a boat operated by Peter Puhl. In the Puhl boat, Jenna Martino, Valerie Martino, and Quinton Adams were passengers.
[18] On April 13, 2017, in the Superior Court in Lindsay, Ontario, Shannen Gulanowski and Sierra Wheeler, by her Litigation Guardian, Ted Wheeler, sued Mr. Puhl, Mr. Watson, and Ms. Watson for negligence (the “Gulanowski Action”). [1] The Plaintiffs alleged that Ms. Watson was the owner of the motorboat.
[19] Later, it was Wawanesa’s understanding that the allegations in the Gulanowski Action triggered a duty to defend pursuant to the Wawanesa insurance policy.
[20] On May 12, 2017, Jenna Martino, Valerie Martino, and Quinton Adams sued Mr. Puhl, Mr. Watson and Ms. Watson, for negligence (the Martino Action). [2] The plaintiffs alleged that Ms. Watson, was the owner of the motorboat operated by Mr. Watson. The Plaintiffs alleged that Mr. Watson was negligent.
[21] Later, it was Wawanesa’s understanding that the allegations in the Martino Action triggered a duty to defend pursuant to the Wawanesa insurance policy.
[22] On June 8, 2017, Mr. Watson and Ms. Watson retained Ms. Galea as defence counsel.
[23] On June 12, 2017, Ms. Watson and Mr. Watson delivered a Statement of Defence and Crossclaim against Mr. Puhl in the Martino Action. In the defence, they pleaded that the motorboat was owned by Ms. Watson.
[24] On August 4, 2017, Ms. Watson and Mr. Watson delivered a Fresh as Amended Statement of Defence and Crossclaim against Mr. Puhl in the Gulanowski Action. In the defence, they pleaded that the motorboat was owned by Ms. Watson.
[25] On August 8, 2017, in the Superior Court in Toronto, Mr. Puhl commenced an action against Mr. Watson and Ms. Watson for negligence (the “Puhl Action”). [3] The Plaintiff alleged that Ms. Watson was the owner of the motorboat.
[26] Later, it was Wawanesa’s understanding that the allegations in the Puhl Action triggered a duty to defend pursuant to the Wawanesa insurance policy.
[27] Ms. Galea who was acting for the Watsons in the Martino, Gulanowski, and Puhl Actions communicated with Wawanesa about insurance coverage. Mr. Iankov was the Wawanesa adjuster assigned to adjust the file, and on December 4, 2017, Mr. Iankov advised Ms. Galea that Mr. Watson’s coverage was under review and that before continuing with an investigation, Wawanesa required Mr. Watson to sign a non-waiver agreement.
[28] On December 12, 2017, Ms. Galea asked for a copy of the insurance policy, and Mr. Iankov sent her the declaration page of the policy, the policy wordings, and a non-waiver agreement.
[29] On January 2, 2018, Ms. Watson and Mr. Watson delivered a Statement of Defence in the Puhl Action. In the defence, they admitted that Ms. Watson was the owner of the boat at the time of the accident.
[30] On January 23, 2018, Mr. Watson signed the non-waiver agreement, and on February 1, 2018, the non-waiver agreement was sent to Wawanesa.
[31] On June 25, 2018, Mr. Watson met with a Wawanesa adjuster and provided him with a written and signed statement disclosing that he had purchased the Doral Phazer motorboat from his sister. He acknowledged that he had not listed the boat on his Wawanesa insurance policy.
[32] On March 29, 2019, on Mr. Watson’s behalf, Ms. Galea advised that it was Mr. Watson’s position that Wawanesa had a duty to defend and to indemnify Mr. Watson.
[33] On April 8, 2019, on Wawanesa’s behalf, Mr. Haase advised Ms. Galea in writing that Wawanesa would assign a defence counsel to defend the claims against Mr. Watson. The same day, Ms. Galea inquired by email asking for confirmation that Wawanesa was providing coverage for the claim. Mr. Haase responded that the defence was being provided on a non-waiver basis.
[34] Ms. Galea presumed, however, that because Wawanesa did not provide a reservation of rights letter that there were no restrictions on the coverage available to Mr. Watson.
[35] Wawanesa denies that it ever discussed a reservation of rights with Ms. Galea. It said that it did not need to do so because it had already received a non-waiver agreement.
[36] Wawanesa appointed Alan Drimer of McCague Borlack to act as defence counsel in the Martino, Gulanowski, and Puhl Actions. Notices of Change of Lawyer were delivered replacing Ms. Galea as lawyer of record for Mr. Watson. Ms. Galea remained lawyer of record for Ms. Watson.
[37] Ms. Watson was not examined for discovery in any of the actions.
[38] On December 8, 2020, Mr. Watson was simultaneously examined for discovery in the Martino, Gulanowski and Puhl Actions. He testified that he was the owner of the Doral Phazer which had a 350 hp outboard motor and that the boat was not insured at the time of the collision.
[39] On September 13, 2021, on consent, Mr. Watson not opposing, the Martino Action was discontinued as against Ms. Watson.
[40] On October 4, 2021, on consent, Mr. Watson not opposing, the Gulanowski Action was discontinued as against Ms. Watson.
[41] On November 10, 2021, on consent, Mr. Watson not opposing, the Puhl Action was discontinued as against Ms. Watson.
[42] Also on November 10, 2021, Wawanesa sent the following letter to Mr. Watson:
We have completed our review regarding coverage. Wawanesa Mutual Insurance Company (“Wawanesa”) has provided you a defence pursuant to a non-waiver agreement, dated January 23, 2018, to the three lawsuits brought against you and others, as a result of a boating accident, on August 22, 2015. At your discovery, you provided evidence under oath and confirmed that you were the owner of the boat you were driving at the time of the accident. Further, you confirmed that your boat had a 350 hp Mercury motor. All parties involved agreed in time to release Lori Watson from the lawsuits as it was clear she no longer owned the boat. Your policy outlines the exclusions for Watercraft and Motorized Vehicles.
Any other watercraft is insured only if liability coverage for it is shown on the Declarations. If the watercraft or motor with which it is equipped is acquired after the effective date of the policy, you will be insured automatically for a period of 30 days only from the date of acquisition.
We attach a copy of your policy and Declaration pages. The Declarations Pages on your personal insurance policy confirm the boat was not listed on the policy. The motor on the boat exceeds 50 hp meaning exclusion (2) applies. Consequently, it is Wawanesa’s position is that there is no coverage available to you under this policy for the above-mentioned lawsuits. We will no longer provide a defence for you considering the evidence obtained at Discoveries and given that all parties involved have agreed to the dismissal of the lawsuits against Lori Watson. Wawanesa will cease paying for Mr. Drimer’s accounts going forward. We recommend strongly you seek out independent legal advice at your own expense to determine your next steps. We ask you to please contact us if you have any questions.
[43] In May 2022, Wawanesa commenced this application.
D. Discussion and Analysis
[44] The duty to defend and the obligation to indemnify are separate obligations, and the duty to defend, which is the broader duty, is determined prospectively based on the pleaded allegations, while the duty to indemnify is triggered retrospectively if the allegations are actually proven. [4]
[45] The legal principles that govern a dispute about whether an insurer has a duty to defend are well established and are as follows:
a. The insurer has a duty to defend if the pleadings filed against the insured allege facts which, if true, would require the insurer to indemnify the insured. [5]
b. The court must determine whether the factual allegations in the pleading, if true, could possibly support the plaintiff’s legal claims. [6]
c. The pleadings govern the duty to defend, not the insurer's view of the validity or nature of the claim nor by the possible outcome of the litigation. [7]
d. In a duty to defend application, the court must determine the substance and true nature of the claims based on the allegations in the pleadings taking the entire pleading into account and without engaging in a fanciful reading of the statement of claim for the purpose of requiring the insurer to defend. [8]
e. The court must look beyond the labels used by the plaintiff to ascertain the substance and true nature of the claims. [9]
f. If there is any possibility that the claim falls within the liability coverage, the insurer must defend. [10]
g. If the pleadings are not sufficiently precise to determine whether the claims would be covered by the policy, the insurer's obligation to defend will be triggered where, on a reasonable reading of the pleadings, a claim within coverage can be inferred. [11]
h. If it is clear from the pleadings that suit falls outside the coverage of the policy by reason of an exclusion clause, the duty to defend is not triggered. [12]
[46] In Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, the Supreme Court of Canada summarized the law about when the duty to defend is triggered as follows:
- An insurer is required to defend a claim where the facts alleged in the pleadings, if proven to be true, would require the insurer to indemnify the insured for the claim. It is irrelevant whether the allegations in the pleadings can be proven in evidence. That is to say, the duty to defend is not dependent on the insured actually being liable and the insurer actually being required to indemnify. What is required is the mere possibility that a claim falls within the insurance policy. Where it is clear that the claim falls outside the policy, either because it does not come within the initial grant of coverage or is excluded by an exclusion clause, there will be no duty to defend.
[47] In the immediate case, Wawanesa was correct in honouring its insurance policy by providing a defence for Mr. Watson in the Martino, Gulanowski, and Puhl Actions and wrong in dishonouring its obligations under the insurance policy by later withdrawing the triggered duty to defend.
[48] The duty to defend a negligence claim against the insured is determined and triggered prospectively based on pleaded facts that may ultimately be shown to be false, or in the immediate case facts known to be false from the outset. This is the so-called “pleadings rule” for the determination of the duty to defend.
[49] This is fair rule to both the insured and the insurer because if reflects the legal nature of the insurance protection purchased by the insured. At that outset of negligence litigation against an insured, it can be determined based on the pleadings whether the insured is being sued for something for which he might be entitled to an indemnity. That determination can be made independent of whether the alleged facts will be borne out and shown to be true later. At this juncture, the insured and the insurer have common cause in denying that the insured is negligent. If the insured is successfully defended, then the matter of whether or not there is coverage for that liability is a moot question.
[50] Using the immediate case as an example, the pleaded claim against Mr. Watson did trigger the duty to defend. In the immediate case, it remains to be determined whether or not Mr. Watson was negligent. In the immediate case, it is presently known that Wawanesa has a duty to defend.
[51] That in the immediate case, it is also presently known that if Mr. Watson were found to be liable in whole or in part for the boating accident – a matter yet to be determined – then Wawanesa would not be obliged to indemnify; however, that known circumstance does not negate the duty to defend which has been triggered based on the pleadings.
[52] Mr. Watson relies on the Court of Appeal’s decision in Cooper v. Farmer's Mutual Insurance Company. In this case, Ms. Boyd was an employee of a horse farm, where she was a horse trainer. She fell from a horse, and she sued her employer for negligence. When the employer’s counsel advised Ms. Boyd’s counsel that her claim would be barred by workers' compensation legislation if, as alleged, she was an employee, and that the employer would also have no insurance coverage for the claim, she discontinued her first action and commenced a new action in which she deleted all references that would engage worker’s compensation legislation.
[53] In these circumstances of a repleaded action, the employer’s insurer refused to defend the employer on the basis that the insurance policy did not indemnify for employee injuries. In justifying its refusal to insure the employer, the insurance company referred to statements made by the employer in the documentation submitted in respect of the claim and on the initial statement of claim in which Ms. Boyd stated that she was an employee. The insurer contended that the subsequent pleadings had been deliberately and improperly designed to trigger the insurance coverage.
[54] After the insurer’s refusal to defend, the employer brought a successful application for a declaration that the insurer had a duty to defend. The insurer lost, and it appealed to the Court of Appeal. The Court of Appeal dismissed the appeal. In her judgment for the Court of Appeal, Justice Cronk stated at paragraphs 13, 16, and 17:
As confirmed in Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, if a claim alleges a state of facts which, if proven, would fall within the coverage of the policy, the insurer’s obligation to defend applies regardless of the truth or falsity of the allegations in the claim […] The courts must take the factual allegations as pleaded, Moreover, a judge hearing an insurance coverage application is precluded from fact-finding on matters at issue in the underlying tort litigation. […] [emphasis added]
For the purpose of the respondent’s coverage application, the facts asserted by Boyd in her second and third statements of claim [In the third pleading, she added a family law claim.] must be taken as pleaded. […] I conclude that they fall within the coverage to which the [insurer] committed under the insuring agreement in the policy. […] I agree, therefore, with the applications judge’s conclusion that there is nothing in Boyd’s current pleadings “which justifies a declaration that the claims falls outside of coverage. [emphasis added]
The facts asserted in Boyd’s second and third statements of claim and the clear wording of the policy establish that the [insurer’s] contractual duty to defend arises in this case. In my view, the applications judge corrected stated (at para. 30):
[T]he claim alleges a state of facts, which, if proven, would fall within coverage of the policy with the result that the insurer is obliged to defend the suit regardless of the truth or falsity of such allegations (citations omitted) [emphasis added]
[55] In the immediate case, the claims in the Martino, Gulanowski, and Puhl Actions allege a state of facts, which, if proven, would fall within coverage of the Wawanesa policy with the result that Wawanesa is obliged to defend the suit regardless of the truth or falsity of such allegations.
[56] The Cooper v. Farmer's Mutual Insurance Company decision of the Court of Appeal is dispositive of the immediate case. In this regard, it may be noted that unlike the insured employer in the Cooper v. Farmer's Mutual Insurance Company, there was no manipulation of the pleadings by the insured and that Mr. Watson was totally honest and forthcoming in his discussions with Wawanesa.
[57] And because he was honest and forthcoming, there is a second reason why Wawanesa was wrong in discontinuing providing Mr. Watson with a defence in the circumstances of the immediate case. In this regard, I agree with Mr. Watson’s argument that Wawanesa waived its right to refuse to provide a defence (although not its right to deny insurance coverage for liability for negligence, which was not waived, precisely because there was a non-waiver agreement).
[58] In Bradfield v. Royal Sun Alliance Insurance, 2019 ONCA 800, the Court of Appeal discussed the doctrine of waiver at paragraphs 30-33 and stated:
Waiver and promissory estoppel are closely related: Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, [1994] S.C.J. No. 59, at para. 18.
The principle underlying both doctrines is that a party should not be allowed to resile from a choice when it would be unfair to the other party to do so. Both require "knowledge" of the policy breach: [citations omitted]
Waiver will be found where
"the party waiving had (1) full knowledge of the deficiency that might be relied upon; and (2) the unequivocal and conscious intention to relinquish the right to rely on the contract or obligation. […] Saskatchewan River Bungalows, at para. 20, and Economical Insurance Group, at para. 31.
- Knowledge can be inferred from conduct, but "that conduct must give evidence of an unequivocal intention to abandon rights known to the party waiving the right": Canadian Federation of Students v. Cape Breton University Students' Union, 2015 ONSC 4093 (S.C.J.), at para. 129.
[59] In the immediate case, Wawanesa had full knowledge of the circumstance that Mr. Watson was the owner of a boat that he was operating but that he had not insured. Wawanesa knew that he was not covered for the insurance available to him as a boat owner nor as an insured operating a boat owned by another. With this knowledge, Wawanesa purposefully and in writing advised Mr. Watson that it would provide him with a defence while reserving its right to deny other insurance coverage. These are the words and conduct of a waiver of any right to refuse to defend Mr. Watson.
[60] Strictly speaking in the circumstances of the immediate case, the waiver argument is unnecessary because the immediate case is governed by the precedent of the Court of Appeal’s decision in Cooper v. Farmer's Mutual Insurance Company, but the waiver is a second and complementary reason for declaring that there is a duty to defend in the immediate case.
[61] There is a third reason for making this declaration. During argument, I asked Wawanesa’s counsel if there are any cases where an insurer has provided a defence and then subsequently withdrew from providing that defence. He said that his research had identified one such case; namely Corel Corp. v. Guardian Insurance Co. of Canada, [2001] O.J. No. 368 (S.C.J.).
[62] In my opinion, however, the case is distinguishable, and, in any event, I am bound by the Court of Appeal’s decision in Cooper v. Farmer's Mutual Insurance Company.
[63] The facts of the Corel Corp. case were that Mr. Berkla sued Corel in the United States. Corel had a commercial general liability policy with an advertising injury liability endorsement. Mr. Berkla sued Corel for copyright infringement, breach of a non-disclosure agreement, breach of confidence, and unfair competition. Guardian refused to defend Corel, and Corel spent over $1.4 million (U.S.) defending itself. Certain claims were removed during case management and there was a summary judgment trial and Mr. Berkla’s copyright infringement claim was dismissed with the exception of certain copyright protected images, none of which were advertised. Corel then sued Guardian and the issues to determine were whether Guardian owed Corel a duty to defend and, if so, how to allocate, if any, between covered and non-covered claims.
[64] On the application, Guardian argued that where the underlying action has proceeded to summary judgment and trial prior to the duty to defend determination, a court should be permitted to refer to facts disclosed in the summary judgment motion as essentially undisputed and non-controversial.
[65] On this point, Justice Backhouse disagreed, and she stated that the duty to defend must be determined on the basis of the claims made. She said that the issue then was whether the pleaded allegations could possibly lead to Corel being found liable for advertising Mr. Berkla’s copyrighted images. Justice Backhouse concluded that the pleaded allegations met the test of possibly triggering coverage and therefore coverage to defend was triggered. However, she also concluded that the pleaded allegations would not have been sufficient to show possible coverage for the unfair competition and breach of confidence claims which were unique to California law.
[66] Thus, there were pleaded claims that trigged a duty to defend and pleaded claims that did not trigger a duty to defend. Nevertheless, Corel submitted that Guardian should be responsible for the entire costs of the defence. Justice Backhouse, however, decided that apportionment was possible, and she ordered a reference to determine what portion, if any, of the costs of defence can be identified as relating directly to claims found to be outside of policy coverage.
[67] The decision in Corel Corp. v. Guardian Insurance Co. of Canada is of no assistance to Wawanesa in the immediate case. Unlike the immediate case, the insurer in that case never honoured its duty to defend that was found to have been triggered by the pleadings. Unlike the immediate case, in the Corel Corp. case, there were pleaded claims that on the face of the pleadings were outside of coverage. In the immediate case, the allegations in the Martino, Gulanowski, and Puhl Actions triggered coverage. There were no pleadings of claims that were manifestly outside of coverage.
[68] If anything, the Corel Corp. v. Guardian Insurance Co. of Canada case is of assistance to Mr. Watson because Justice Backhouse quite correctly made her decision about coverage based on the pleadings.
[69] I, therefore, declare that Wawanesa is obliged to resume providing Mr. Watson with a defence notwithstanding that I also declare that in the event that Mr. Watson is found liable for negligence he has no insurance coverage for his liability.
E. Conclusion
[70] Order to go in accordance with these Reasons for Decision.
Perell, J. Released: April 5, 2024