Tom Donnelly

Supplemental reasons issued to correct an error in the court's previous decision (2022 ONSC 12).

The court corrected paragraph 4 to clarify that Lloyds should not have been listed as a party challenging the forum of the action.

Vale Canada and its primary insurer, RSA, brought actions against numerous excess insurers for coverage of environmental remediation costs incurred primarily in Ontario.

Several foreign excess insurers brought motions challenging the jurisdiction of the Ontario court or seeking a stay based on forum non conveniens in favour of an action in New York.

The court found it had jurisdiction over all moving insurers except North River Insurance Company, concluding that the insurers were 'carrying on business' in Ontario by participating in a global insurance program for an Ontario-based company.

The court declined to stay the actions for forum non conveniens, finding Ontario to be the 'centre of gravity' for the dispute.

Claims by Vale Canada against two UK insurers were stayed pending arbitration.

The plaintiffs brought an action against multiple insurers for indemnity regarding environmental damage.

Several foreign defendants failed to deliver statements of defence within the required time limits, and one was noted in default.

The defendants sought an extension of time to defend or bring jurisdictional motions, arguing the court should wait for the outcome of a parallel proceeding commenced by one of the insurers in the United States.

The court refused to delay the Ontario proceeding, finding no prejudice to the defendants in requiring them to respond timely, and ordered the defendants to deliver their statements of defence or motion records by a specified deadline.

The applicant, Freyssinet Canada Limitée, brought a Rule 21 motion to determine a question of law regarding whether Parkway Infrastructure Constructors (PIC) is precluded from recovering damages claimed in its counterclaim, which are also claimed against Builder's Risk insurers.

Freyssinet argued that a covenant to insure in the Project Agreement, and potentially an implied term in the Subcontract, allocated risk away from it.

The court dismissed the motion, finding that material facts were in dispute, the enforceability and interpretation of the Subcontract were contested, and a full factual record was necessary for proper adjudication.

The court also found no legal bar to PIC's counterclaim, noting that PIC was not acting as an insurer bringing a subrogated claim against its own insured.