COURT FILE NOS.: CV-21-658910-0000, CV-21-00660407-0000

RELEASED: 2025-01-17

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: The Jewish Theological Society of Canada o/a Camp Ramah in Canada, plaintiff
AND: Arch Insurance Canada Ltd. and The Sovereign General Insurance Company, defendants
AND RE: 1310784 Ontario Inc. d.b.a. Camp Manitou Inc., plaintiff
AND: Arch Insurance Canada Ltd. and The Sovereign General Insurance Company, defendants

BEFORE: R. Frank

COUNSEL:
Christiaan Jordaan for the plaintiffs
Christopher Reain and Brandon Cook for the defendants

HEARD: 2024-07-18

REASONS FOR DECISION

A. Overview

[1] The plaintiffs/moving parties are both overnight camps in Ontario that were shut down by government order during the COVID-19 pandemic. Each of the plaintiffs had purchased an insurance policy from the defendants, and each made a claim under the policies for business losses sustained during the COVID-19 pandemic.

[2] This is a motion by the plaintiffs, in two separate actions, for a determination of the scope of coverage under the insurance policies. The parties have agreed to have the scope of coverage issue determined for both actions by way of summary judgment and based on an agreed statement of facts. The parties have also agreed that damages will be addressed separately and at a later stage in the proceedings, if necessary.

B. Agreed Statement of Facts

[3] The agreed statement of facts filed by the parties includes the following.

The parties

[4] The Jewish Theological Society of Canada operates Camp Ramah in Canada (“Camp Ramah”) in the Muskoka region of Southern Ontario. Camp Manitou Inc. (“Camp Manitou”) operates private overnight camp facilities in the Parry Sound area of Northern Ontario.

[5] The defendants, Arch Insurance Canada Ltd. (“Arch”) and The Sovereign General Insurance Company (“Sovereign”), are insurance companies registered to operate in Ontario.

The insurance policies

[6] Camp Ramah and Camp Manitou (together, the “Camps”) purchased insurance with a policy period from May 1, 2019 to May 1, 2020 through the Canada Camps Association Insurance Program that was underwritten by Arch (55 percent) and Sovereign (45 percent). The policy wording is common to both Camps. The insurance coverages purchased by Camp Ramah are set out in Certificate Number FCA 0202. The insurance coverages purchased by Camp Manitou are set out in Certificate Number FCA 0146 (collectively with the policy wording, the “Policies”).

[7] The Policies applicable to both Camps included an extension for infectious diseases, as set out in Section IV F, with $1,000,000 in coverage (the “Infectious Disease Extension”).

Closure of the Camps due to COVID-19

[8] On March 17, 2020, the Government of Ontario enacted Regulation 50/20, declaring an emergency under Section 7.0.1 of the Emergency Management and Civil Protection Act, RSO 1990, c E.9 regarding the COVID-19 pandemic. On March 23, 2020, the Government of Ontario announced that effective the following day all non-essential businesses would be required to close their physical premises. This announcement applied to the Camps, as they were not within the list of essential businesses. On May 19, 2020, the Government of Ontario announced that due to COVID-19, overnight camps in Ontario would continue to be ordered closed throughout the summer. Because of these orders, the Camps were not able to conduct their usual business during 2020. The Camps were subject to continued restrictions and requirements due to the continuation of the COVID-19 pandemic during their 2021 operations.

Payment by the Insurers and outstanding claims

[9] The Insurers have paid both Camps $1,000,000 for their business interruption losses resulting from the COVID-19 pandemic under the Infectious Disease Extension.

[10] However, the Camps assert that they are also entitled to coverage for Extra Expenses and Professional Fees under the Policies. The insurers have not denied coverage but assert that coverage for Extra Expenses and Professional Fees is within the $1,000,000 limit under the Infectious Disease Extension. For clarity, the Camps are not asserting entitlement to coverage for property damage under Section I A of the Policies.

[11] Extra Expenses are defined in the Policies. The determination of what types of losses constitute Extra Expenses and the quantification of any Extra Expense claim are not in issue on this motion.

[12] Regarding Professional Fees, both Camps retained accounting firms to assist them. Camp Ramah retained RSM Canada Consulting LP (“RSM”), and Camp Manitou retained BDO Canada LLP (“BDO”). Both Camps also retained legal counsel. The adjuster appointed by the insurers for the claims by both Camps retained Matson Driscoll & Damico Ltd (“MDD”) to assess the insureds’ losses.

[13] Regarding Camp Ramah:

• (a) RSM prepared a quantification report dated July 3, 2020, regarding asserted losses up to September 30, 2020.
• (b) MDD prepared a preliminary quantification report dated September 16, 2020, regarding Camp Ramah’s collectible losses.
• (c) On or about September 17, 2020, the defendants made an interim payment to Camp Ramah for its insured business interruption losses in the amount of $547,052.81.
• (d) MDD prepared a further quantification report dated December 10, 2020, regarding Camp Ramah’s collectible losses.
• (e) On or about January 20, 2021, the defendants made a further payment to Camp Ramah for its insured business interruption losses in the amount of $452,947.19.

[14] Regarding Camp Manitou:

• (a) MDD prepared a quantification report dated July 15, 2020 regarding Camp Manitou’s losses.
• (b) On or about September 2, 2020, the defendants made a payment to Camp Manitou for its insured business interruption losses in the amount of $1,000,000.

C. Key Provisions of the Policies

[15] The Policies were included as attachments to the agreed statement of facts. The key policy provisions for this motion are reproduced, in part, below.

[16] The Extra Expense form at Section III A of the Policies provides, in part, as follows:

SECTION III A
EXTRA EXPENSE INSURANCE
APPLICABLE TO ALL SECTIONS OF THE POLICY

1. INSURING AGREEMENT
   Subject to conditions and limitations herein stated, this Policy insures as stated on each Individual Certificate of Insurance the necessary Extra Expense incurred by the Insured in order to continue as nearly as practicable the normal conduct of the Insured's business following damage to or destruction by the perils insured against under this Policy to the property insured under all Sections of the Policy.

[17] The Infectious Disease Extension form provides, in part, as follows:

SECTION IV F
INFECTIOUS DISEASE EXTENSION
(Applicable to Business Interruption Section III A, IV A, IV B, IV C, IV D, IV E)
This form provides a maximum sub-limit of $1,000,000 (one million dollars). Such limit is part of and not in addition to the Business Interruption Coverage and limit(s) as stated on each Individual Certificate of Insurance.
This form is extended to indemnify the Insured for loss as insured hereunder resulting from interruption or interference of business by order of Civil Authority only, of the business of the Insured at the premises in consequence of:

[18] Regarding Professional Fees, the Policy provision applicable to both Camps is in Section IV D Provision 11, which states:

11. Professional Fees
    The Insurer(s) shall be liable hereunder for the applicable amount of fees payable to Auditors, Consultants or Lawyers, to produce or certify particulars or details required by the Insurer(s) to arrive at the loss payable hereunder. This extension shall not apply to the fees of any adjuster hired by the Insured, and is subject to a limit of $250,000 (two hundred fifty thousand dollars)

[19] In addition, for Camp Manitou, Section IV A Article 14, provides as follows:

14. PROFESSIONAL FEES
    The Insurer(s) shall be liable hereunder for the applicable amount of fees payable to the Insured's Auditors, Lawyers or Consultants for producing or certifying particulars or details required by the Insurer(s) in order to arrive at the loss payable under this Policy in the event of a claim, subject to a limit of $250,000 (two hundred fifty thousand dollars).

[20] The Certificate for Camp Ramah provides, in part, as follows with respect to coverage:

[21] In the Camp Manitou Certificate, the coverage with respect to Sections III A and Sections IVA, IVD, IVE, and IVF, is as follows:

[22] The parties agree that for purposes of this motion there are no relevant differences in the Certificates for each of the Policies. As seen above, both Certificates provide as follows for Section IV F (the Infectious Disease Extension):

“Infectious Disease Extension - Limit insured is not greater than the amount of the Business Interruption limit shown above, or $1,000,000, whichever is the least.”

D. Jurisdiction of an Associate Judge to Hear This Motion

[23] Associate Judges may decide issues of mixed fact and law, interpret contracts, decide issues of law that are settled, and determine whether a genuine issue of unsettled law would preclude a motion for summary judgment (without deciding that issue of law). [1]

[24] On this motion, the parties have consented to a hearing under Rule 6.1 of the liability (scope of coverage) issues in the two related actions. [2] In the circumstances:

• (a) I am satisfied that the requirements of Rule 6.1.01 are met because there is no risk of inconsistent decisions or duplication of effort. This motion will decide all liability issues, with the only remaining issue (if necessary) being the quantification of the losses covered under the Policies. Further, the only facts put forward on the motion are set out in an agreed statement of facts, so that no inconsistent findings can arise; and
• (b) the parties agree to have all or part of the claim determined by summary judgment, and I am satisfied that it is appropriate to grant summary judgment. [3]

E. Issues

[25] By agreement of the parties, the following issues are to be determined on this motion:

1. Is coverage for Extra Expense under Section III A caused by the COVID-19 pandemic subject to the $1,000,000 sublimit applicable to the Infectious Disease Extension in Section IV F?
2. What is the period of indemnity for coverage for Extra Expense under Section III A for a loss caused by the COVID-19 pandemic?
3. Is coverage for Professional Fees under the provisions that follow and incurred in respect of losses covered by the COVID-19 pandemic subject to the $1,000,000 sublimit applicable to the Infectious Disease Extension in Section IV F:
   • (a) for Camp Ramah under Section IV D Provision 11; or
   • (b) for Camp Manitou under Section IV A article 14 or Section IV D Provision 11?

F. Law and Analysis

(i) Principles for the interpretation of insurance policies

[26] In interpreting the meaning of an insurance policy, the court applies a three-step approach:

• (a) Where the language of the policy is unambiguous, the court should give effect to the clear language, reading the contract as a whole.
• (b) Where the language of the policy is ambiguous, general rules of interpretation are to be applied to resolve the ambiguity. These include that the interpretation should be consistent with the reasonable expectations of the parties, so long as such an interpretation can be supported by the text of the policy, and that the court should also strive to ensure that similar insurance policies are construed consistently.
• (c) If ambiguity remains after interpretive principles are applied, the policy will be construed contra proferentem against the insurer. As a corollary of this principle, coverage clauses are to be interpreted broadly and exclusion clauses narrowly. [4]

[27] As Penny J. explained in Workman Optometry Professional Corporation v Certas Home and Auto Insurance Company: [5]

Insurance contracts are subject to the same rules of interpretation as other contracts, with the addition of some special rules. The purpose of the interpretation exercise is to determine the objective intent of the parties. Subjective intent is always irrelevant. Objective intent is determined by reading the words of the insurance contract in their ordinary and grammatical sense, in the context of the contract as a whole, with some consideration being given to circumstances surrounding the creation of the insurance policy. [6]

[28] In interpreting an insurance contract, the words used must be given their ordinary meaning, “as they would be understood by the average person applying for insurance, and not as they might be perceived by persons versed in the niceties of insurance law’”. [7] The ordinary meaning of words depends on their context within the contract as a whole, not just one clause in isolation. [8]

[29] Exclusions from coverage must be clearly stated and unambiguous. [9] As the Court of Appeal has explained: “Limitations on the apparent coverage in the endorsement that are ambiguous in the sense that they are not clearly apparent, should be set out in the endorsement itself.” [10] However, unclear or imprecise language in a contract does not necessarily give rise to an ambiguity. [11] Further, the interpretative principles used to resolve ambiguities in insurance contracts do not operate to create ambiguity where none exists. [12]

(ii) Onus

[30] The parties agree that there is a shifting onus with respect to the interpretation of coverage, exclusions to coverage, and exceptions to exclusions in an insurance contract. The insured has the onus of first establishing that the damage or loss claimed falls within the initial grant of coverage. The onus then shifts to the insurer to establish that one of the exclusions to coverage applies. If the insurer is successful at this stage, the onus then shifts back to the insured to prove that an exception to the exclusion applies. [13]

[31] The plaintiffs submit that the defendants have admitted that the loss falls within the policy’s insuring agreements, and that “[g]iven coverage is admitted, and the Insurers rely on an alleged limitation of that coverage, the onus is on them to establish the limitation.” In this regard, they rely on paragraphs 14 and 15 of the defendants’ statements of defence in each of the actions in which they plead as follows:

14. The Extra Expense Form is triggered by a risk that the Policy insures against. The [Infectious Disease Extension], if triggered, can provide potential coverage for a claim made on the Extra Expenses Form (as it has already for the plaintiff).

15. The [Infectious Disease Extension] provides a maximum limit of $1 million dollars. An insured who accesses the Extra Expense Form’s coverage through the [Infectious Disease Extension] is therefore limited to a $1 million dollar limit between both the [Infectious Disease Extension] and the Extra Expense Form. Where an insured has been paid their limits under the [Infectious Disease Extension], no coverage is available for extra expenses.

[32] I do not accept the plaintiffs’ reading of the defendants’ pleadings. Rather than admitting coverage, the defendants assert in their pleadings, as they do on this motion, that “[w]here an insured has been paid their limits under the [Infectious Disease Extension], no coverage is available for extra expenses” (emphasis added). While the defendants have admitted that coverage is granted under the Infectious Disease Extension to the maximum of $1,000,000, it is the plaintiffs who are seeking to establish that pursuant to the Infectious Disease Extension there is coverage for further amounts for Extra Expenses and Professional Fees beyond $1,000,000. Therefore, the onus is not on the defendants to establish a limitation to coverage, but for the plaintiffs to establish that there is coverage for the further amounts they claim for Extra Expenses and Professional Fees under the Infectious Disease Extension. However, even, if I am incorrect and the onus is on the defendants, this would not alter my determinations with respect to the scope of coverage under the Policies, as set out below.

(iii) Is coverage for Extra Expense subject to the Infectious Disease Extension $1,000,000 sublimit?

[33] The defendants assert that: (i) an insured who accesses coverage under the Extra Expense form through the Infectious Disease Extension is limited to a $1,000,000 limit for both the Infectious Disease Extension and the Extra Expense form; and (ii) when an insured has been paid their limits under the Infectious Disease Extension, no additional coverage is available for Extra Expense.

[34] The plaintiffs argue that each of the Policies has extended coverage for Extra Expense that is not limited to the $1,000,000 limit for Infectious Disease Extension claims. They submit that any limitation on coverage must be clearly specified in the Policies and that the Policies do not contain sufficiently clear language to limit the plaintiffs’ claims to $1,000,000 inclusive of Extra Expense.

[35] First, the plaintiffs point to the Section IV F Infectious Disease Extension form that provides, in part, as follows:

“This form provides a maximum sub-limit of $1,000,000 (one million dollars). Such limit is part of and not in addition to the Business Interruption Coverage and limit(s) as stated on each Individual Certificate of Insurance.”

[36] The plaintiffs submit that this language does not clearly apply to Extra Expense because there is no definition of the capitalized term “Business Interruption Coverage”. They argue that when an insurer fails to define a key term, courts will rarely permit an interpretation of the term that could lay a “trap for the unwary”. [14]

[37] The plaintiffs also argue that the Extra Expense form at Section III A is not titled as Business Interruption Coverage. It applies to all sections of the Policies provided there is damage to insured property. They submit that the Infectious Disease Extension addresses indemnity for loss of income from cancelled or lost bookings, and that the “Business Interruption Coverage” limits referred to in Section IV F are those under Section IV of the Policy, including the Infectious Disease Extension. They argue that Extra Expense coverage does not require a business interruption, and that although Extra Expense coverage is triggered in the same way as business interruption coverage (i.e. by an insured property loss), it addresses different consequences flowing from such harm.

[38] Further, the plaintiffs argue that the lack of clarity is not resolved by the Certificates, which they submit are laid out poorly. While the plaintiffs acknowledge that the Extra Expense coverage is listed in the Certificates under “Business Interruption”, they submit that the terms of Section III A and the layout of the Certificates are problematic and create ambiguity with respect to amounts available for Extra Expenses. Specifically, they argue that the placement of Extra Expense in the Business Interruption section of the Certificates is confusing because Section III A provides that it is “APPLICABLE TO ALL SECTIONS OF THE POLICY”, which suggests that Extra Expenses are not limited to Business Interruption claims. The plaintiffs also submit that the language in the Certificates “not greater than the amount of the Business Interruption limit shown above, or $1,000,000, whichever is the least” is ambiguous. They argue that there are two limits “shown above”, namely one for the Section IV D lost profits form, and one for the Extra Expense coverage that is subject to a $1,000,000 limit, which they assert is a separate limit. In addition, the plaintiffs submit that the confusion and ambiguity arising from the layout of the Certificates is exacerbated by the inclusion of “Crime Extensions” under the Business Interruption section of the Certificates. They submit that any confusion arising from the poor layout of the Certificates must be laid at the feet of the insurers, rather than allowed to limit coverage to the insured.

[39] The Policies are to be interpreted as they would be understood by an ordinary person, not someone versed in the niceties of insurance law and practice. In doing so, I do not accept the plaintiffs’ submissions that the applicable limits under the Policies are confusing or ambiguous. A contract is ambiguous when there are “two reasonable but differing interpretations of the policy”. [15] As the British Columbia Court of Appeal has explained:

[88] … It is important to understand that a contract whose terms may, in some respects, be unclear or imprecise, is not ambiguous. So too, a contract that contains some language that is troublesome or that does not align with the contract as a whole or that cannot be fully reconciled with other aspects of the contract is not necessarily ambiguous.

[89] A contract is ambiguous when there are “two reasonable but differing interpretations of the policy”: Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7 at para. 42, relying on Billingsley at 147; see also Progressive Homes at para. 23. The Policy, though awkward in some respects, does not give rise to “two reasonable but differing interpretations”. [16]

[40] No doubt the failure to define a term in an insurance policy can lead to ambiguity in some circumstances. It is not sufficient for an insurer’s interpretation of a limitation to be logical to “get out from under the wording it chose to use”. [17] Rather, exclusions must be clear and unambiguous. However, in this case, no ambiguity arises because the capitalized term “Business Interruption Coverage” is not defined in the Policies.

[41] In my view, the plaintiffs’ interpretation of the Policies requires a reading of the applicable forms in isolation rather than as part of the Policies. That is contrary to the applicable principles of interpretation. The Infectious Disease Extension and Extra Expense forms are not stand-alone policies. They are linked to the policies to which they are attached. The scope of coverage must be assessed by reading the Policies as a whole, including the Certificates. In doing so, the starting point is that the Policies explicitly exclude coverage for the plaintiffs’ COVID-19 related losses by way of the “Biological Agents Exclusions” under Section 4(r) of the Policies’ broad form. The losses claimed by the plaintiffs would not be covered other than through an endorsement or extension in the Policies. Put another way, because coverage for the plaintiffs’ losses caused by COVID‑19 shutdowns is excluded under the Policies, the plaintiffs can only access coverage by way of an extension – the Infectious Disease Extension. In this way, the Infectious Disease Extension is an extension that brings into coverage that which was not included under the broad form coverage, and it only covers losses that are specifically provided for through the extension.

[42] With respect to Extra Expenses, the plaintiffs’ position on the scope of coverage focuses almost solely on the Extra Expense form itself. This fails to consider the terms and coverage limit of the Infectious Disease Extension despite the fact that the Extra Expense form is accessed by way of the Infectious Disease Extension. In my view, it would be incorrect to analyse the coverage limit by starting with the Extra Expense form, rather than beginning with “the peril insured against” which triggers the Extra Expense form.

[43] I also do not accept the plaintiffs’ assertions that the layout of the Certificates is confusing. In my view, the inclusion of Extra Expense in the Business Interruption section of the Certificates does not create an ambiguity. Nor do I find the placement of “Crime Extensions” in the Certificates confusing. In my view, “Crime Extensions” are a separate section of the Certificates from the Business Interruption section, and the plaintiffs are misinterpreting the slightly smaller font in the heading “Crime Extensions” as an indication that coverage for the crime extensions is listed as part of the Business Interruption section. Reading the Policies as a whole, it is clear that Extra Expense falls under Business Interruption and Crime Extensions do not.

[44] Further, I do not accept the plaintiffs’ assertion that there is ambiguity because the Certificates state that the Infectious Disease Extension limit is “not greater than the amount of the Business Interruption limit shown above, or $1,000,000, whichever is the least”. First, I do not read the words “limit shown above” as restricted to only one limit listed in the Business Interruption section of the Certificates. In any event, none of the potentially applicable limits listed above it are less than $1,000,000, and it is clear from the wording in the Certificates that the limit for the Infectious Disease Extension is $1,000,000.

[45] To summarize, the plaintiffs seek coverage on the Extra Expense form through the Infectious Disease Extension. Absent the Infectious Disease Extension, the Extra Expense form would not have been triggered because the Extra Expense form does not provide coverage independent of the Infectious Disease Extension. The Infectious Disease Extension form provides that it is “Applicable to Business Interruption Section III A…” (Section III A being the Extra Expense form), and the Infectious Disease Extension provides a sublimit of $1,000,000 that is “part of and not in addition to” the Business Interruption Coverage and limits stated on the Certificates. As the plaintiffs correctly concede, Section III A is listed as “Business Interruption” in the applicable Certificates. Accordingly, I find that the terms of the Infectious Disease Extension apply to the forms with which it interacts, such that its $1,000,000 limit is part of and not in addition to the limits in Section III A.

(iv) What is the period of indemnity for coverage for Extra Expense under Section III A?

[46] Given my finding that the Extra Expense form and Infectious Disease Extension together provide a limit of $1,000,000, which has already been paid to the plaintiffs, I need not determine the period of indemnity for coverage for Extra Expense under Section III A.

(v) Is coverage for Professional Fees subject to the $1,000,000 Infectious Disease Extension sublimit?

[47] The plaintiffs submit that: (i) each of the business interruption forms provides coverage for Professional Fees; and (ii) the reasonable interpretation of those provisions is that they express a common intention throughout the Policies to provide extra coverage, in addition to limits, for the expenses that will be required for the insured to substantiate its claim to the insurer.

[48] The plaintiffs submit that this intention is demonstrated by looking at how Professional Fees are addressed in other parts of the Policies, namely: (i) the extensions of coverage under Section I A of the Policies that include a limit of $250,000 for Professional Fees that is expressly “in addition to the limit on Property of Every Description”; and (ii) the Professional Fees provision under Section IV E for Contingent Business Interruption that expressly provides that it is “in addition to and not part of the limit insured.” The plaintiffs argue that these substantially similar Professional Fees provisions in the other coverages are simply instantiations or confirmations of the general principle that Professional Fees are intended to provide extra coverage, in addition to any listed coverage limits.

[49] I do not agree. Considering the Policies as a whole, it is evident that the Policies provide specific instances where coverage for Professional Fees is in addition to any listed coverage limits. In my view, contrary to the plaintiffs’ position with respect to Professional Fees, the instances that expressly provide that Professional Fees are in addition to and not part of the limit insured are specific examples of circumstances in which coverage is clearly stated to extend beyond the limit otherwise provided. [18] I do not accept the plaintiffs’ argument that this creates a “general principle” that all references to Professional Fees are, therefore, instances of coverage for Professional Fees beyond the stated limits even if the express language used in other sections of the Policies is absent. If Professional Fees were intended to be insured in addition to what is available to the plaintiffs under the Infectious Disease Extension sublimit, the Policies would have expressly said so, as is the case in the other instances in the Policies.

[50] Further, I do not accept that plaintiffs’ argument that the reference in Section IV D to the coverage as an extension and the use of the term “limit” as opposed to “sublimit” indicates that the Professional Fees are additional to the listed coverage limits. Nor do I accept the plaintiffs’ argument that Policies should be interpreted to provide additional coverage for Professional Fees based on a commercial rationale. Rather, as the plaintiffs acknowledge in their written argument on the Extra Expense issue, a commercial expectation cannot override the terms of a policy and should not be used to transform the meaning of an insurance policy. [19]

[51] For the reasons outlined above with respect to the Extra Expense coverage under Section III A, the plaintiffs can only access coverage for Professional Fees on the Section IV form of the Policies when triggered by the Infectious Disease Extension. As is the case with respect to Extra Expenses, the Infectious Disease Extension sublimit of $1,000,000 is “part of and not in addition to” any coverage for Professional Fees.

G. Disposition and Costs

[52] For the reasons outlined above, I order and adjudge as follows:

1. Coverage for Extra Expense under Section III A is subject to the $1,000,000 sublimit applicable to the Infectious Disease Extension in Section IV F.
2. Coverage for Professional Fees regarding losses covered by the COVID-19 pandemic is subject to the $1,000,000 sublimit applicable to the Infectious Disease Extension in Section IV F.

[53] In view of my finding that Extra Expense under Section III A is subject to the $1,000,000 sublimit applicable to the Infectious Disease Extension in Section IV F, I need not determine the period of indemnity for coverage for Extra Expense under Section III A for a loss caused by the COVID-19 pandemic.

[54] With respect to costs, the parties agreed that costs should be fixed and payable to the successful party in the amount of $20,000. As the defendants were successful on this motion, I order the plaintiffs to pay the defendants costs of this motion fixed in the amount of $20,000, inclusive of disbursements and taxes.

DATE: January 17, 2025
R. Frank

Endnotes

[1] Alan Clausi Professional Corp v Bullock, 2016 ONSC 3033 at paras 21-29 (Master); Harlon Canada Inc v Lang Investment Corp, 2010 ONSC 5264 at paras 13-14

[2] Rule 6.1.01 was amended as of July 1, 2024 to remove the requirement for consent and to specify the applicable test for determining whether to order a separate hearing on one or more issues, including the issues of liability and damages.

[3] Rule 20.04(2)(b): “The court shall grant summary judgment if, … (b) the parties agree to have all or part of the claim determined by summary judgment and the court is satisfied that it is appropriate to grant summary judgment.”

[4] Progressive Homes Ltd v Lombard General Insurance Co of Canada, 2010 SCC 33, [2010] 2 SCR 245 (“Progressive Homes”) at paras 22-24; Ledcor Construction Ltd v Northbridge Indemnity Insurance Co, 2016 SCC 37, [2016] 2 SCR 23 (“Ledcor”) at paras 49-51; Sabean v Portage La Prairie Mutual Insurance Co, 2017 SCC 7, [2017] 1 SCR 121 (“Sabean”) at para 12. See also Cabell v The Personal Insurance Company, 2011 ONCA 105, 104 OR (3d) 709 (“Cabell”) at para 11

[5] Workman Optometry Professional Corporation v Certas Home and Auto Insurance Company, 2023 ONSC 3356 (“Workman”)

[6] Workman, 2023 ONSC 3356 at para 35

[7] Sabean at para 13, citing Co-operators Life Insurance Co. v. Gibbens, 2009 SCC 59, [2009] 3 S.C.R. 605 at para 21 and Ledcor at para 27

[8] Workman at para 38

[9] Backyard Media Inc v HDI Global Specialty SE, 2021 ONSC 2341 (“Backyard Media”) at para 4

[10] Cabell at para 13; Wigle at para 50

[11] Surespan Structures Ltd. v Lloyds Underwriters, 2021 BCCA 65 (“Surespan”) at para 88

[12] Progressive Homes at para 23; see also Cabell at para 11

[13] Ledcor at para 52; Progressive Homes at paras 26-29 and 51

[14] Axa Insurance (Canada) v Ani-Wall Concrete Forming Inc, 2008 ONCA 563, 91 OR (3d) 481 (“Axa”) at para 17

[15] Sabean at para 42

[16] Surespan at paras 88-89

[17] Axa at para 30

[18] Another example of a provision in the Policies that expressly provides that an extension of coverage is in addition to a coverage limit is found in Section VI, General Conditions – Broad Form, Article 2 “Debris Removal”.

[19] Surespan at paras 83-92