Trajcevski v. Aviva et al., 2026 ONSC 3579
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DIMCE TRAJCEVSKI
Applicant
– and –
AVIVA INSURANCE COMPANY OF CANADA, SOVEREIGN GENERAL INSURANCE COMPANY, AND TRISURA GUARANTEE INSURANCE COMPANY
Respondents
– and –
PEDRO ANTONIO CASTILLO, TAJANA KOZOMARA, and EVANGELYN ERIS CASTILLO by her litigation guardian, Tajana Kozomara
Interested Parties
Peter Kazdan, for the Applicant
Mark M. O’Donnell and Cameron L. Foster, for the Respondents
Justin Linden, for the Interested Parties
HEARD: June 11, 2026
REASONS FOR JUDGMENT
callaghan J.
Overview
1The applicant, Dimce Trajcevski (the “Applicant”), is a defendant in an action brought by Antonio Castillo and others. The action involves an unfortunate accident. On a hunting trip, there was a discharge of a firearm. Mr. Castillo was struck and has had three toes amputated. He sues Mr. Trajcevski.
2The Applicant is insured through a homeowner policy issued by CAA Insurance Company (“CAA”). CAA has accepted coverage and is providing a defence through counsel, Mr. Kastden, who was appointed by CAA.
3The respondents, Aviva Insurance Company of Canada, Sovereign General Insurance Company and Trisura Guarantee Insurance Company (the “Respondents”), issued a subscription policy to Great North Wildlife Affiliates (“GNWA” and “GNWA Policy”). GNWA is the named insured.
4The GNWA Policy provided an endorsement that provided coverage to GNWA’s club members. The endorsement provided insurance to club members for losses caused by “bodily injury” related to certain outdoor activities including “hunting” (the “Endorsement”).
5The Applicant is a member of a club that is an affiliate and has access to coverage under the Endorsement. The Applicant was described by counsel as an “unnamed insured” under the GWNA Policy, although that term is not used in the policy.
6The Applicant sought coverage under the GNWA Policy but was denied. The Respondents take the position that the allegations in the statement of claim do not constitute “hunting” and, as such, there is no coverage. In any event, the Respondents assert that the GNWA Policy is an excess policy and therefore would not respond at this time.
7The Applicant responds by submitting that the GNWA Policy does require the Respondents to extend a duty to defend because the allegations meet the definition of “hunting” and that the GNWA Policy is a primary policy.
8Finally, the Respondents have asserted that if there is a duty to defend, the Applicant’s current counsel is in a conflict because he was appointed by CAA and has an interest in ensuring that the Respondents not only defend but indemnify and thereby reduce CAA’s exposure. As such, the Respondents submit that counsel will not fairly protect their interests. The parties have agreed that this issue should be deferred until this Court decides the first two issues.
9Pursuant to an endorsement of Justice Dow, no evidence other than the policies, denial letter and the pleadings were filed on this application.
The Statement of Claim
10Whether there is a duty to defend turns on the wording of the statement of claim and the applicable policy wording.
11The statement of claim sets out the parties. Mr. Castillo lives in Kawartha Lakes. Mr. Trajcevski lives in Toronto.
12The parties agree that the only substantive paragraph of the statement of claim for the purpose of this application is paragraph 6 which reads:
On or about September 10, 2022, the Plaintiff, Pedro, went hunting at a property located at 188 Adams Road in the Town of Mattawa, Ontario. Pedro, his friend, and the Defendant, Dimce, also went hunting at the property. On or about the evening of September 10, 2022, the [sic] Pedro, his friend, and Dimce were setting up their tents when, suddenly and without warning, Dimce negligently discharged his firearm striking the [sic] Pedro in his right foot. The bullet pierced the [sic] Pedro’s foot and amputated three of his toes.
The Policies
13The CAA Policy is a homeowners’ policy. It provides $2 million coverage plus legal fees. CAA has accepted coverage. That policy contains an “other insurance” clause which reads as follows:
Insurance Under More Than One Policy
If "you" have other insurance which applies to a loss or claim, or would have applied if this policy did not exist, this policy will be considered excess insurance and "we" will not pay any loss or claim until the amount of such other insurance is used up.
14The GNWA Policy is a Commercial General Liability Policy. It has a $2 million limit.
15As noted, The GNWA Policy contains the Endorsement which reads as follows:
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE FORM
SCHEDULE
Operations:
It is agreed that with respect to club member outdoor activities defined as "Hunting, Fishing, Hiking, Bow hunting, Bird watching, Non-commercial trapping, Habitat conservation, and Target shooting," this policy's coverage is only intended to provide excess liability insurance which would respond after all primary personal liability of the individual member(s) been exhausted.
All other terms remain unchanged.
This insurance applies only to "bodily injury", "property damage", "personal and advertising injury", and medical expenses arising out of the operation(s) shown in the Schedule.
Premium: Included
16The Endorsement modified but left the underling GNWA Policy “unchanged”. The GNWA Policy provided:
Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as "compensatory damages" because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "action" seeking those "compensatory damages". However, we will have no duty to defend the insured against any "action" seeking "compensatory damages" for "bodily injury" or "property damage" to which this insurance does not apply. We may, at our discretion, investigate any "occurrence" and settle any claim or "action" that may result. But:
(1) The amount we will pay for "compensatory damages" is limited as described in Section III – Limits Of Insurance; and
(2) Our right and duty to defend end when we have used up the applicable limit of insurance in the payment of judgments or settlements under Coverages A, B or medical expenses under Coverage C.
No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Supplementary Payments – Coverages A, B and D.
b. This insurance applies to "bodily injury" and "property damage" only if:
(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; and
(2) The "bodily injury" or "property damage" occurs during the policy period; and
(3) Prior to the policy period, no insured listed under Paragraph 1. of Section II – Who Is An Insured and no "employee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the "bodily injury" or "property damage" had occurred, in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period will be deemed to have been known prior to the policy period.
17The GWNA Policy also provides an “Other Insurance” clause which reads as follows:
- Other Insurance
If other valid and collectible insurance is available to the insured for a loss we cover under Coverages A, B or D of this Coverage Form, our obligations are limited as follows:
a. Primary Insurance
This insurance is primary except when b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in c. below.
b. Excess Insurance
This insurance is excess over:
(1) Any of the other insurance, whether primary, excess, contingent or on any other basis:
a. That is Property Insurance which also includes but is not limited to Builder's Risk, Installation Floater or similar coverage for "your work" or for premises of others rented to you or occupied by you;
b. If the loss arises out of the maintenance or use of watercraft to the extent not subject to Exclusion e. of Section I – Coverage A – Bodily Injury and Property Damage Liability
(2) Any other primary insurance available to you covering liability for "compensatory damages" arising out of the premises or operations or products-completed operations for which you have been added as an additional insured by attachment of an endorsement.
When this insurance is excess, we will have no duty under Coverages A, B or D to defend the insured against any "action" if any other insurer has a duty to defend the insured against that "action". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers.
When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of:
(1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and
(2) The total of all deductible and self-insured amounts under all that other insurance.
We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance clause and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this policy.
c. Method of Sharing
If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first.
If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers.
Issues
18The issues at hand are a) whether the allegation in paragraph 6 in the statement of claim falls within the definition of “hunting” for the purpose of the Respondents having a duty to defend, and b) whether that Endorsement is excess insurance such that the GNWA Policy does not respond at this time.
Analysis
19There is no magic as to which order these issues are addressed. I will first deal with the issue of whether the Applicant is owed a duty to defend and then address the issue of whether the GNWA Policy is an excess policy that does not respond at this time.
Is the Duty to Defend Triggered?
20At this stage, the issue is whether the GWNA Policy imposes a duty to defend on the Respondents. The duty to defend only arises where the pleadings disclose a claim which, if successful, would require indemnity under the GWNA Policy. This does not require proof that the GNWA Policy would necessarily indemnify the insured. Instead, the “mere possibility that a claim within the policy may succeed suffices”: Nichols v. American Home Assurance Co., 1990 CanLII 144 (SCC), [1990] 1 S.C.R. 801 (S.C.C.), at p. 810.
21In Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at paras. 50-52, the Supreme Court set out a three part test to determine if an insurer’s duty to defend is triggered. The first two parts of the test address the adequacy and the nature of the cause of action. The last part is whether the cause of action as pleaded “could potentially” trigger the insurer’s duty to defend which requires consideration of both the policy and the claim. It is this last part of the test which is at issue in this case.
22The Ontario Court of Appeal in Ontario v. St. Paul Fire and Marine Insurance Company, 2023 ONCA 173, 480 D.L.R. (4th) 30, at para. 12, summarized the applicable factors as follows:
If the pleadings allege facts which, if true, would require the insurer to indemnify the insured for the claim, the insurer is obliged to provide a defence: Monenco Ltd. v Commonwealth Insurance Co., 2001 SCC 49, [2001] 2 S.C.R. 699, at para. 28.
If there is any possibility, based on a reasonable reading of the policy, that a claim falls within the liability coverage such that there could be coverage the insurer has a duty to defend the insured against that claim: Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551 at para. 52; Tedford v. TD Insurance Meloche Monnex, 2012 ONCA 429, 122 O.R. (3d) 144, at para. 14, citing Nichols v. American Home Assurance Co., 1990 CanLII 144 (SCC), [1990] 1 S.C.R. 801, at p. 810. “In this sense, the insurer’s duty to defend is broader than the duty to indemnify”: Monenco, at para. 29, citing Nichols at p. 810; Panasonic Eco Solutions Canada Inc. v. XL Speciality Insurance Company, 2021 ONCA 612, 466 D.L.R. (4th) 276, at para. 22. (For convenience, I will call this the “possibility of coverage test”.)
In determining whether coverage is possible, a court must look beyond the labels used to describe the claims and ascertain the substance and true nature of the claim: Scalera, at para. 50.
Any doubt as to whether the pleadings bring the incident [or event] within coverage ought to be resolved in favour of the insured. Coverage clauses should be construed broadly in favour of coverage, and exclusion clauses should be construed narrowly: Monenco, at para. 31; Tedford, at para. 14. Where the policy is ambiguous, effect should be given to the reasonable expectations of the parties: Tedford, at para. 14, citing Scalera, at para. 71.
If coverage for intentional torts is excluded, there will be no duty to defend a negligence claim if the alleged negligence claim is based, in substance, on the same harm as the excluded intentional tort: Scalera, at para. 51. There will be no duty to defend the negligence claim in such a case because the negligence claim is not distinct from the intentional torts but “derivative”.
23As the matter involves the interpretation of an insurance policy, the court is to give effect to the clear language used in the policy. Like any contract, the policy should be interpreted so as to accord with commercial reality. The general rule when interpreting a policy of insurance is that coverage clauses are to be interpreted broadly. And, as noted above, if the language is ambiguous, the standard practice is to construe ambiguities against the insurer, as the policy was drafted by the insurer: Non-Marine Underwriters, Lloyd's of London v. Scalera, at para. 70.
24The issue before me is whether there is any possibility, based on a reasonable reading of the policy, that the allegations in para. 6 of the statement of claim falls within the definition of “hunting” such that there could be coverage. If so, the Respondents have a duty to defend the Applicant against the claim. For the sake of ease, I repeat para. 6:
On or about September 10, 2022, the Plaintiff, Pedro, went hunting at a property located at 188Adams Road in the Town of Mattawa, Ontario. Pedro, his friend, and the Defendant, Dimce, also went hunting at the property. On or about the evening of September 10, 2022, the [sic] Pedro, his friend, and Dimce were setting up their tents when, suddenly and without warning, Dimce negligently discharged his firearm striking the [sic] Pedro in his right foot. The bullet pierced the [sic] Pedro’s foot and amputated three of his toes.
25At this stage, there are no facts to consider aside from those in the statement of claim. When considering whether there is a duty to indemnify, the trier of fact will have access to all the pertinent facts surrounding the events. Those additional facts may well shed more light on the events than what is pleaded. Presently, there are just the pleaded facts in para. 6. Balancing this lack of detail is the minimal requirement of the “possibility of coverage test” which requires a “mere possibility” or “any possibility” that coverage will be established at trial and that any doubt should be decided in favour of the insured. Setting the duty to defend in this fashion is a recognition that the insured should not be denied a defence unless the policy clearly will not indemnify the insured at the end of the day for the claim asserted.
26The Respondents state that the discharge of the firearm took place while the plaintiff and the Applicant were “setting up their tent”. They state that setting up a tent is not the act of “hunting” and that the Endorsement is limited to “bodily injury” that occurs while in the act of “hunting”.
27“Hunting” is not defined in the Endorsement or GNWA Policy. The Respondents had the opportunity to define “hunting” but chose not to do so. I was directed to a number of cases involving statutory prohibitions on “hunting” and the various definitions used in those cases. Some cases involved legislation with a risk of a penal sanction and therefore required a strict interpretation. In contrast, in this case, the term “hunting” is central to the issue of coverage and therefore should be construed broadly.
28In argument before me, the Respondents submitted that “hunting” is the “pursuit of wild animals” and putting up a tent is not pursuing wild animals. The Applicant states that hunting is an activity which includes more than the action of pursuing animals. The Applicant states that the activity of hunting requires the hunting party to be in proximity of the wild animals which necessitates being in the woods with firearms, the very type of activity that is described in paragraph 6 which states that the Applicant and plaintiff “went hunting”.
29I need only refer to one case which both parties cited to illustrate that there is a “mere possibility” that there may be coverage. In R. v. Maltese, 1997 CanLII 857 (Ont. C.A.), the accused was charged with violating the Game and Fish Act, R.S.O. 1990, c.G.1, by hunting without a tag. The applicable legislation defined both “hunting” and “hunting in a party”. The issue as defined was whether the accused was “hunting” which was defined as including “chasing, pursuing, following after or on the trail of, searching for, shooting, shooting at, stalking or lying in wait for, worrying, molesting, taking or destroying any animal or bird, whether or not the animal or bird be then or subsequently captured, injured or killed”. At the time Mr. Maltese was charged, he did not have a gun in his hand. In upholding the conviction, Justice Laskin cited the Justice of the Peace at para. 7, who opined:
Hunting has a very specific meaning under the Game and Fish Act. To the lay man, hunting has all kinds of meaning. It is obvious to this court that he was hunting at the time. He didn't have a gun in his hands and he was talking, and of course he is not hunting but we cannot just take a slice out of the middle of the bread. We have to look at the whole thing.
This man was part of a group that left Southern Ontario with an intention to come and hunt as a group in Northern Ontario which is what they did. When a man is eating or he has to go to the bathroom or something can we way he is not hunting anymore? I don't think so
30As the JP noted, the legislation is very specific as to what is involved in hunting but to the lay person there may be many definitions of “hunting”. Indeed, the very definition of “hunting” was altered when the Game and Fish Act was revoked and replaced with the Fish and Wildlife Conservation Act, 1997. There is clearly some elasticity as to what is meant by “hunting” in the statutory world. Of course, this is not to say that each insured gets to choose their own definition of “hunting” but rather that where an insurance contract is ambiguous, the court should apply the rules of contractual construction which includes preferring an interpretation that is consistent with the reasonable expectations of the parties. When these rules of construction fail to resolve the ambiguity, courts will construe the policy contra proferentem — against the insurer which generally means accepting an interpretation that advances rather than detracts from coverage: Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245, at paras. 21-24.
31Hunting as interpreted by the JP included more than the active pursuit of wildlife. In Maltese, Laskin J.A. upheld the conviction and commented that these cases are fact specific. The case demonstrates that even where there is a statutory prohibition where the word “hunting” is defined, it may mean more than the active pursuit of wildlife. This is consistent with some dictionary definitions such as the Merriam-Webster that defines “hunt” as “to pursue for food or in sport” and “to manage in the search for game”. The word “hunting” is defined as the “process of hunting”. The word “process” is defined as “a series of actions that produce something or that lead to a particular result”: Merriam-Webster Dictionary. When a person pursues wild game miles from home and in the wilderness, the act of setting up camp may well be found to be one of a “series of actions” required to pursue wild game for sport or food.
32In this case, pursuant to the pleading, the Applicant left his home and travelled a great distance to Matawa to go “hunting” or, as the pleading states, “went hunting” The Applicant and plaintiff were in the woods setting up camp in furtherance of the process of searching for wild game. For the purpose of “hunting”, the Applicant had a firearm. That firearm discharged.
33In my view, the commercial purpose of the Endorsement includes insuring members for the unexpected discharge of a firearm that causes bodily harm while pursuing the activity of hunting in its broadest sense. The Respondents were free to provide a narrower definition of hunting but chose not to do so. To the extent there is ambiguity as to how the word “hunting” is to be interpreted, the interpretation most favourable to the Applicant must prevail. As the JP in Maltese said, looking at the “whole thing” and having regard to the fact that policy coverage must be interpreted broadly, I am satisfied that there is at least a “mere possibility” of coverage for the Applicant to the allegations by the plaintiff. This is sufficient to trigger the duty to defend.
Is this Primary Coverage?
34The Respondents need only defend if the GWNA Policy is a primary policy which does not otherwise exclude coverage. If it is a primary policy, there is then an issue of how to reconcile the duty to defend in the GNWA Policy and the duty to defend in CAA Policy.
35A primary policy is one which, under the terms of the policy, liability attaches immediately upon the happening of the occurrence that gives rise to the liability. In short, a primary policy obligates the insurer to defend a claim advanced against the insured and may require indemnity up to the policy limits. An excess policy is one that provides coverage after the primary policy limits have been eroded and generally does not require an insurer to defend a claim prior to the primary policy’s limits being exhausted and there being no requirement to defend by the primary insurer: Northbridge General Insurance Company v. Aviva Insurance Company, 2021 ONSC 6873, at para. 24.
36Ascertaining whether the GWNA Policy is a primary or excess policy is a matter of contractual interpretation. In most cases, as the Supreme Court noted, the assessment of whether a policy is primary or an excess policy is done solely on an assessment of the policy wording as the parties to these types of disputes are usually two separate insurers, neither of whom were privies to the others policy: Family Insurance Corp. v. Lombard Canada Ltd., 2002 SCC 48, [2002] 2 S.C.R. 695, at para. 19. The same applies in this case, as the Applicant was not a party to obtaining the GWNA Policy and thus there was no privity between the parties. In any event, pursuant to the endorsement of Justice Dow, there are no facts before me that would inform the surrounding circumstances to the GWNA Policy.
37It was suggested by the Respondents that the “other insurance” clause in the GWNA Policy did not apply to the Endorsement which covered “unnamed insureds”. It was argued that those “other insurance” clauses only applied to the “Named Insured” being GWNA, not the club members. It was argued that the Endorsement was a “policy-within-a-policy” and effectively stood on its own. That is not how I read the policy.
38The GWNA Policy uses the word “insured” throughout, not “Named Insured” as argued by the Respondents. The club members covered by the Endorsement are “insureds” under the GWNA Policy where coverage is available under the Endorsement. The main portion of the policy not only defines much of the coverage but provides the terms of coverage. The Endorsement modifies the GWNA Policy in so far as it extends coverage, but the Endorsement can only be read in conjunction with the rest of the policy.
39For example, the Endorsement extends coverage to the members where they suffer “bodily injury” engaging in the prescribed activities including “hunting”. The phrase “bodily injury” is defined in the main body of the policy, not the Endorsement. The main body of the policy provides that the “insured” will get the benefit of the limit of coverage, being $2 million, in responding to a claim of “bodily injury”. This limit of coverage applies to club members insured under the Endorsement. That coverage includes a defence. Indeed, the obligation to defend is provided for in the main body of the policy. That part reads, “We [i.e. the Respondents] will have the right and duty to defend the insured against any ‘action’ seeking those ‘compensatory damages’”. It is the main body of the policy that actually sets out the duty to defend. As such, the Endorsement is not a “policy-within-a-policy” as advocated by the Respondents. The Endorsement is integral to and must be read along with the provisions of the remainder of the GNWA Policy.
40On its face, the GNWA Policy is described as a “primary” policy. The heading under “ a” reads “Primary Insurance” and specifies “This insurance is primary except when b. below applies”. The “b.” is the “other insurance” clause. Like the CAA Policy, the “other insurance clause” attempts to limit the benefit of the insurance to the insured where there is other insurance that responds to the loss. Reading the policy, unless the Endorsement alters or excludes the “other insurance” clause, I do not see how it can be ignored as suggested by the Respondents.
41The issue then is whether the Endorsement alters the wording of the GWNA Policy such that the Endorsement does not provide “primary insurance” coverage.
42Turning to the Endorsement, the Respondents accept that the Endorsement operates as primary insurance for those club members who do not have another policy that responds. However, it points to the following language in the Endorsement, “this policy's coverage is only intended to provide excess liability insurance which would respond after all primary personal liability of the individual member(s) has been exhausted.” The Respondents assert that this language demonstrates that the intention was that the coverage was to be truly excess where another policy would respond. I do not agree.
43This language in the Endorsement is consistent with the rest of the policy that provides coverage that is “excess to any other primary insurance available to the [unnamed insured] covering liability for ‘compensatory damages’ arising out of the operations”. As such, both the Endorsement and the main body of the GWNA Policy provide primary coverage with the intent that the coverage would respond as excess coverage where another policy also provides primary coverage.
44Although I find that the plain wording of the Endorsement, when read in conjunction of the GWNA Policy, clearly provides primary insurance subject to other insurance, I also note that the Endorsement does not have the traditional hallmarks of an excess policy. For example, it does not require the affiliates or club members to have underlying insurance, nor does it state that it is excess to any other sources: Trenton Cold Storage Ltd. v. St. Paul Fire and Marine Insurance, 2001 CanLII 20561 (ON CA), 2001, 199 D.L.R. (4th) 654, (Ont. C.A.), at paras. 21-24; McKenzie v. Dominion of Canada General Insurance Company, 2007 ONCA 480, 86 O.R. (3d) 419, at para. 39; Northbridge General Insurance Company v. Aviva Insurance Company, 2021 ONSC 6873, at para. 25, aff’d, 2022 ONCA 519; Keelty v. Bernique (2002), 2002 CanLII 22040 (ON CA), 57 O.R. (3d) 803, (Ont. C.A.). While not determinative, this is consistent with the conclusion that the Endorsement is not true excess coverage.
45I conclude that the Endorsement and GWNA Policy provides primary insurance which seeks to be excess insurance where there is “other insurance”. As such, it has the same intent as the CAA Policy. The issue is how to reconcile the two policies, both of which seek to operate as excess policies when another policy will respond to the loss.
46This is the same situation as addressed by the Supreme Court in Family Insurance Corp. v. Lombard Canada Ltd. In that case, two insurers insured the same loss. Both insurers had “other insurance” clauses that stated their policy was to be treated as “excess insurance” to any other insurance. The clauses were irreconcilable and thus the court stated that the fairest result is to apply the doctrine of equitable contribution.
47The doctrine of equitable contribution applies where two primary policies respond to the same loss, but both seek to be excess policies, and the wording of the policies cannot be reconciled. The doctrine spreads the burden pro-rata between the insurers: Family Insurance Corp. v. Lombard Canada Ltd., at para. 14.
48Here, both CAA and the Respondents have issued primary policies that both respond to the claim. They both seek to operate as excess policies where another policy covers the same loss. There was no argument that the “other insurance” clauses in either policy could be reconciled in favour of one insured over the other. As such, the two policies are irreconcilable. In that circumstance, the doctrine of equitable contribution applies.
49Accordingly, the Respondents owe the Applicant a duty to defend the claim. The issue of whether there is a duty to indemnify is for a future trier of fact.
50The parties agreed, if I reached this conclusion, that the Respondents would contribute 50% of the Applicant’s defence costs commencing July 13, 2023, when they were first notified of the claim.
51There remains the issue of whether Mr. Kazden is in a conflict and must give way to another counsel. I would ask the parties to confer and advise how long it will take to brief on that issue and advise the court. The form of any order and issue of costs will be reserved until all issues are resolved.
Callaghan J.
Released: July 8, 2026