Vincent G. Burns

Kin Canada and The Kinsmen Club of Oshawa (Applicants) brought an application seeking a declaration that their insurers, Ecclesiastical Insurance Office Public Company Limited and Certain Non-Marine Underwriters o/a Lloyd’s Of London and Lloyd’s Canada (Respondents), had a duty to defend them in an underlying lawsuit.

The underlying claim involved damages related to the discovery of underground oil storage tanks (USTs) on a property sold by The Kinsmen Club of Oshawa in 2005, with allegations of negligent misrepresentation and mismanagement, and vicarious liability against Kin Canada.

The court found that the pollution exclusion clauses in both insurance policies applied, as the true nature of the underlying claim was environmental pollution arising from leaking USTs and the failure to comply with regulatory requirements for their removal.

Consequently, the court dismissed the application, ruling that the duty to defend did not arise for either insurer.

The moving parties, two commercial establishments, sought leave to appeal the dismissal of their motions for summary judgment.

The plaintiff had sustained a severe traumatic brain injury after falling down stairs at a rented chalet following a night of drinking at the moving parties' establishments.

The moving parties argued their duty of care ended when the plaintiff reached the chalet.

The court dismissed the motions for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision that foreseeability of risk and the sobriety of the plaintiff's companions were issues requiring a trial.

The defendants Tholos Restaurant Inc. and Kaytoo Restaurant and Bar Limited brought a motion for summary judgment to dismiss a negligence action brought by the plaintiff, Matthew Linton, who suffered a severe brain injury after falling down steps at a chalet following a bachelor party.

The plaintiff alleged commercial host liability, arguing the defendants overserved him alcohol, leading to his intoxication.

The court denied the motion, finding genuine issues requiring a trial, particularly regarding the amount of alcohol consumed, when and where it was consumed, and whether the commercial hosts knew or ought to have known of the plaintiff's intoxication.

The court emphasized the conflict between expert toxicologist evidence (suggesting obvious intoxication) and lay witness statements (denying visible impairment), and the risk of inconsistent findings if the motion were granted while the action against other defendants proceeded to trial.

A construction crane collapsed onto a partially completed retirement residence, causing significant property damage covered by the owner’s “all risks” construction insurance policy.

The owner’s insurer commenced a subrogated action and co‑defendants sought contribution and indemnity from the contractor and crane supplier.

The moving parties sought summary judgment dismissing the crossclaims, arguing that the construction contract contained an insurance covenant allocating the risk of property loss to the owner’s project insurance and benefiting contractors and subcontractors.

The court held that the covenant barred claims against those parties and prevented contribution claims under the Negligence Act.

The court further held that the insurer’s waiver of subrogation and the doctrine recognizing insurable interests of trades on construction projects also barred the claims.

All crossclaims against the moving parties were dismissed.

During a scheduled status hearing under Rule 48.14 of the Rules of Civil Procedure, the parties filed a consent request to adjourn the hearing, marking at least the second such adjournment.

The court emphasized that Rule 48.14 functions as a limited form of case management designed to ensure timely resolution of disputes and proper allocation of judicial resources.

The judge noted that repeated consent adjournments undermine the oversight purpose of the rule.

Although the adjournment was granted, the court required the parties either to attend the next status hearing or comply with Rule 48.14(10) in advance.

Two insurers brought motions to dismiss third party claims arising from a motor vehicle accident involving a rented vehicle and an alleged unidentified driver.

The central issue was the priority of insurance coverage under the Insurance Act where claims were made under the uninsured and unidentified motorist provisions of an automobile policy.

The court held that s. 277(1.1), which alters priority rules for leased or rented vehicles, applies only to third party liability coverage and not to uninsured or unidentified motorist claims.

Such claims remain governed by s. 277(1), which provides that the owner's policy is first loss insurance.

Accordingly, the insurer of the rented vehicle was required to respond first and the third party claims against the other insurers were dismissed.

The appellant appealed a judgment regarding liability for a gas spill.

The appellant had accepted responsibility for the spill, made substantial payments, and indicated that only damages needed to be quantified.

The Court of Appeal dismissed the appeal, finding that the appellant's words and conduct reasonably led to the conclusion that it would not rely on the limitation period.

The appellant insurer appealed a decision declaring it had a duty to defend and indemnify the respondent insured for claims arising from a carbon monoxide leak in the insured's apartment building.

The insurer argued that the absolute pollution liability exclusion in the commercial general liability policy barred coverage.

The Court of Appeal dismissed the appeal, holding that the exclusion clause was intended to apply to traditional environmental pollution, not to routine commercial hazards like a faulty furnace causing indoor carbon monoxide poisoning.

The court emphasized that exclusion clauses must be interpreted narrowly and in a manner consistent with the main purpose of the insurance coverage and the reasonable expectations of the policyholder.

The plaintiffs brought actions for damages arising from a motor vehicle accident against the driver, owner, lessee, and two taverns (unprotected defendants).

One of the taverns brought a motion to determine whether, as an unprotected defendant, it was liable for the whole amount of the statutory deductibles applied to protected defendants under the Insurance Act.

The trial judge held that unprotected defendants were responsible for 100 percent of the deductibles.

The Court of Appeal allowed the appeal, holding that the Insurance Act restricts the application of the Negligence Act, and unprotected defendants are only liable for the amount by which their contribution under the Negligence Act exceeds their joint and several liability with protected defendants.